Karnataka High Court
Mr. E.D. Prasad vs State Of Karnataka on 28 June, 2024
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NC: 2024:KHC:24244
CRL.A No. 996 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 996 OF 2011 (C)
BETWEEN:
MR. E.D. PRASAD
S/O E.D. RATHNAM
AGED ABOUT 62 YEARS
ELECTRICAL ATTENDER
PWD BUILDING DIVISION
JALADARSHINI GUEST HOUSE
MYSORE
PRESENTLY RESIDING AT
NO.165/1A, 2ND CROSS
YADAVAGIRI, MYSORE-20
...APPELLANT
(BY SRI. P.N. HEGDE AND
SRI. BRIJESH PATIL., ADVOCATES)
AND:
Digitally signed by
SHAKAMBARI
Location: HIGH
COURT OF STATE OF KARNATAKA
KARNATAKA THROUGH KARNATAKA
LOKAYUKTHA POLICE
MYSORE
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE
...RESPONDENT
(BY SRI. VENKATESH S. ARBATTI, SPL.PP)
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CRL.A No. 996 of 2011
THIS CRL.A. IS FILED UNDER SEC.374(2) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:03.09.11 PASSED
BY THE PRL. DIST., AND S.J., MYSORE IN SPL.C.NO.29/2005
AND CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 13(1)(E) R/W SEC.13(2) OF THE PREVENTION
OF CORRUPTION ACT, 1988.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.05.2024, POSTED FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This is an appeal by accused-appellant being aggrieved against the Judgment of his Conviction and Order of Sentence passed by the Principal District and Sessions Judge, Mysore in Spl. Case No. 29/2005 dated 03.09.2011 convicting and sentencing the accused for the offence punishable under Section 13(i)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988, sentencing the accused to undergo imprisonment for a period of 3 years and to pay a fine of Rs.40,00,000/- and in default of payment of fine, to undergo Rigorous Imprisonment for one year.
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2. The parties to this appeal are referred to as per their rank before the trial Court for convenience.
The prosecution case, in brief, can be stated as under:
3. That the accused at the relevant time was working as Electrical Attender at PWD, Mysuru from 14.03.1973 to 17.11.1999. It is alleged that, during this period, he amassed wealth to the tune of Rs.19,44,603/- as against his known source of income of Rs.11,73,353.44 for which, he did not furnish satisfactory account of this pecuniary resources towards the properties acquired by him, which according to the case of the prosecution is disproportionate to his known source of income.
4. As per the records placed on record by the prosecution with permission of the superior authorities after getting the search warrant, the prosecution after collecting necessary source report as the accused has not satisfactorily answered regarding his income, a raid was -4- NC: 2024:KHC:24244 CRL.A No. 996 of 2011 conducted in his house on 25.02.2003. After conducting a detailed investigation, the Lokayukta Police found the prima facie materials to initiate the proceedings under the provisions of the Prevention of Corruption Act against the accused. After investigation, the final report was submitted to the competent authority and after obtaining the sanction to prosecute the accused, a detailed charge sheet came to be filed against the accused by the Lokayuktha Police, Mysuru, alleging offence against the accused under Section 13(1)(e) r/w section 13(2) of Prevention of Corruption Act, 1988.
5. Accused having not pleaded guilty before the trial Court was tried. To substantiate the case of the prosecution and to prove the guilt, prosecution in all, examined 15 witnesses from PWs.1 to 15 and got marked Exs.P.1 to P.52 with respective signatures and closed its evidence.
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6. During the course of cross-examination, Ex.D.1 came to be marked on behalf of defence.
7. Thereafter, by the impugned judgment, the learned Special Court held the accused guilty and passed a sentence mentioned as above, against which, the appellant is before this Court.
8. I have heard the arguments of learned Sri P.N.Hegde, Advocate appearing for the accused and learned Addl. HCGP for respondent - State.
9. At the outset, learned Sri P.N.Hegde, Advocate took the evidence of prosecution witnesses vis-à-vis the documents produced by the accused and also went through the impugned judgment. According to the learned counsel for appellant-accused, the learned trial Court has misread the evidence inasmuch as, it was found that, appellant-accused could not account for Rs.20,57,130.31 which is in excess of his known source of income and this exceeds normal margin of 10%. The learned Special Court -6- NC: 2024:KHC:24244 CRL.A No. 996 of 2011 failed to make proper calculations and committed mistake in calculating the amount and other details brought on record by the prosecution as well as defence. It is his further submission that, the learned trial Court failed to appreciate the evidence spoken to by the prosecution witnesses which are contradictory in nature. There are several lacunaes, deficiencies and discrepancies in the evidence of the prosecution witnesses as well as the documents tendered on record.
10. It is his further submission that, though the appellant-accused had shown his source of income, some of the items which were purchased by the appellant- accused with his own income are not added worth more than Rs.3,75,000/-. It is his submission that, he was a class-IV Electrical Attender at PWD Jaladarshini, Mysuru. Whatever the amount calculated by the Investigating Officer is against the actual income shown by accused- appellant. Though the accused-appellant showed his source of income, purposely to harass him, he has been -7- NC: 2024:KHC:24244 CRL.A No. 996 of 2011 falsely implicated in this case. The vehicle which he had purchased has been declared. There is no dispute with regard to the expenditure so calculated by the prosecution. Neither the Investigating Officer nor the trial Court have considered the income of the accused. There is categorical evidence that, his wife was having the agricultural income and it has been stated in his statement. It was a direct income from the landed property which is not considered by the prosecution. Though the Investigating Officer has considered the income but, trial Court has excluded the said income. His wife had received Rs.75,000/- out of Rs.3,00,000/- from her brother as her income from landed property. There was no opportunity provided to examine the witness. Glaring mistake has been committed by the Investigating Officer. The claim of the accused is not properly considered by the trial Court. The trial Court has stated that, the accused being a public servant has not disclosed or declared his assets and liabilities. But, the Group-D employees were exempted from such declaration. He -8- NC: 2024:KHC:24244 CRL.A No. 996 of 2011 submits that from the year 2015 onwards, the Group-D employees were expected to declare their assets and liabilities. He further submits that, even the sanction so obtained from the competent Authority is bad in law. Without going through the records, the sanctioning Authority blindly put the signature for the sanction. He submits that the trial Court has committed factual and legal error in arriving at the conclusion and wrongly convicted and sentenced the accused. He prays to allow the appeal and set aside the impugned judgment.
11. As against his submission, Sri Venkatesh S.Arbatti, Spl.Public Prosecutor appearing for respondent- State supporting the judgment of the trial Court submits that, there are no grounds raised till this day about the so called sanction, now stated by the accused. He relies upon Section 19 of the Prevention of Corruption Act, 1988 to submits that, previous sanction is necessary for prosecution. No injustice has been caused to the accused because of the said sanction. He submits that, at this -9- NC: 2024:KHC:24244 CRL.A No. 996 of 2011 stage, validity of sanction cannot be raised or considered. Prima facie case is made out by the prosecution by leading oral and documentary evidence. He submit that, prosecution has proved that, the accused has failed to give proper account of his income and he is expected to show his honesty and integrity in discharge of his official duties as a public servant. It is for the accused to show his income which must be proportionate to his annual income and expenditure. According to him, burden is on the accused. To prove his defence, accused has not lead any evidence. Even the income of a Government employee has to be declared under the provisions of Income Tax Act and also under the Karnataka Civil Services (Conduct) Rules, 1966. He submits that, there are no grounds to interfere into the impugned judgment of conviction and order of sentence. He prays to dismiss the appeal.
12. Countering this submission, repeatedly, it is submitted by the counsel for the accused that the validity
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 of sanction can be raised at any stage of the proceedings. Sanctioning Authority itself has not supported the case of the prosecution. Based upon the Investigating Officer's report, one cannot come to the conclusion that, the accused had committed the offence. There is no reverse burden on the accused. He submits that, the initial burden is on the prosecution and not on the accused. The evidence of the material witnesses suffers from material particulars. No reason has been assigned to exclude the income so stated by the accused. Initially 'B' report was filed against the complaint filed by the prosecution and subsequently, second complaint was filed. Thereafter, a charge sheet was filed against the accused which is fatal to the case of the prosecution. In support of his submission, he relied upon the following judgments:
(i) Vijender Vs. State of Delhi - (1997) 6 SCC 171
(ii) State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar - (1981) 3 SCC 199
(iii) Vasanth Rao Guhe Vs. State of Madhya Pradesh
- (2017) 14 SCC 442
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(iv) Nanjappa Vs. State of Karnataka - AIR 2015 SC 3060
13. In view of the rival submissions of both the side, the following points arise for my consideration:
(1) Whether the special Court has correctly and properly appreciated the evidence adduced by the investigating agency?
(2) Whether the accused-appellant's defence is satisfactory account for such possession of the wealth?
14. To substantiate the charge under the provisions of Section 13(1)(e) of Prevention of Corruption Act, the prosecution must establish that the accused is a public servant, that the nature and extent of pecuniary resources or property which were found in his possession and it must be proved what were the "known source of income" i.e., known to the prosecution and lastly, it must prove, quite objectively that such a resource or property found in possession of the appellant were disproportionate to his "known sources of income". That means, in a case of
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 present nature to ascertain the aforesaid fact one has to keep in mind:
a) Check period.
b) Income during the check period.
c) Expenditure during the check period.
d) Likely savings
e) Assets acquired during the check period
f) Difference between assets acquired and the saving is taken as disproportion to the known source of income.
15. If the aforesaid data is obtained, it would be very easy for ascertaining the alleged offence. Undisputedly, the check period commenced on 14.03.1973. The said check period is calculated upto 17.11.1999. Ex.P.50 shows the total assets, expenditure and income of the accused and his family members during this check period. On scrupulous reading of this final report, the IO has shown the following items towards the income, expenditure and disproportional income as under:
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CRL.A No. 996 of 2011
Particulars Rs.
Assets 16,14,544.30
Expenditure 15,03,412.75
Assets + expenditure 31,17,957.05
Income 11,73,354.44
Disproportionate asset 19,44,603.61
16. Thus, as per the case of the prosecution the accused allegedly have acquired 165.73% of additional income for which he has not shown any source.
17. It is also not disputed that on 11.06.2002, the Investigating Officer has filed a 'B' report as because the authorization to investigate was not properly issued.
Thereafter, by registering a fresh complaint, charge sheet was filed by the investigating agency.
18. The learned trial Court in the course of judgment has reassessed the claim of the prosecution, considered the defence of the accused and has come to a conclusion in respect of assets, expenditure and income of the accused. It reads as under:-
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CRL.A No. 996 of 2011
Particulars Rs.
Assets of accused 14,52,925.00
Expenditure of the accused 15,53,412.75
Assets + expenditure 30,00,638.75
Income of the accused 9,49,208.44
Disproportionate asset 20,57,130.31
19. Thus, calculated the percentage of the
disproportionate assets at 216.72%.
20. The learned counsel for the accused vehemently urged that, the learned trial Court has failed to consider the agricultural income of the wife of the accused-
appellant and also other income. According to him, in the calculation so arrived at, by the trial Court a grave arithmetical error is committed by the trial Court.
21. As stated supra, the prosecution has examined in all, 15 witnesses, and out of them, the important witnesses are the complainant and I.Os.
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22. Prosecution examined PW.1, B.V.Venkatesha Babu the Junior Training Officer, Government Industrial Training Institution, Nanjungud to prove with regard to the conducting raid and search on 25.02.2003 at 6 a.m. by visiting the residential quarters of accused. This PW.1, was called by the IO and he was taken to the house of the accused along with his colleague Rukmini to the residential quarters of accused situated near Jaladarshini Guest House, Mysuru. In their presence, IO conducted the raid. Noticed the presence of accused in the house. After showing search warrant, they prepared the list of movable properties including the furniture's, kitchen items, etc.,. so also noticed the parking of 3 cars (4 wheelers and 2 wheelers). It is stated by PW.1, that on enquiry accused told that amongst 3 cars, one car belongs to him and other two cars belong to his friends. He has produced the RC particulars of his car. With regard to 2 wheelers, he told that, the Hero two wheeler belongs to his friend and another Yamaha vehicle belongs to his another friend. The search and preparation of the mahazar completed at
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 2.30 p.m. and this PW.1 signed the same. The items mentioned in the mahazar are the household articles, cars and two wheelers and also NSC certificates and tax paid receipts. PW.1 has been directed with cross-examination. He admits that, as it is a Government Guest House, there is constant visit of Govt. Officers and Politicians to the guest house and they park their cars. For this PW.1 has given a positive answer. When the raid was conducted himself and his colleague Rukmini were the only other Dept. officials and other persons were all of Lokayuktha dept. There were no private persons.
23. He further deposed that, he cannot say how many years old the articles which were found in the residential quarters of the accused. No receipts were produced to that effect by the accused. Even he deposed ignorance that whether the value stated by the accused is stated in the mahazar or not. According to his evidence, accused showed the RC particulars with regard to the car standing in the name of his wife. No inspection was made
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 with regard to the year of purchase of two-wheeler and even there was no enquiry with regard to the date of purchase of the car. He was confronted with the RC book and he states that he has seen the RC book.
24. PW.2 K.B.Shivaramu, another Officer of Government Industrial Training Centre, Mysore states in his evidence that as called by the Lokayukta Police on 25.2.2003, he went to the office of Lokayukta at 9.00 a.m., along with Lokayukta Inspector and Staff and himself went to a house situated at Yadavgiri and knocked the door. One lady opened the door and called her husband by name Yahon. The Lokayukta showed the search warrant sought permission to search. After search, it was revealed that the house where the said Yahon and his family were residing belongs to the accused. Accordingly, Panchanama was prepared as per Ex.P2.
25. No effective cross-examination is directed to him so as to disbelieve the version given in examination-in the chief. From the evidence of PW.2, it is very much clear
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 that the house situated at yadavgiri when search was conducted, the said house was belonging to accused in which Yahon and his family members used to reside. This fact is not disputed by the accused.
26. PW.3 Jayadevaprakash, was a Joint Director, Statistics, Lokayukta at the relevant time. As per his evidence, as per the letters addressed by Superintendent of Police, Lokayukta, Mysuru dated 6.6.2001 and 26.6.2001 he submitted a report regarding expenditure towards food commencing from 14.4.1973 to 19.11.1999 on 09.08.2001. The said report shows yearly expenditure. He identifies the reports as per Ex.P3 to P5. According to his evidence, as per the Departmental Guidelines, he has prepared the report showing his expenditure towards food at Rs.2,61,651/- in all for the aforesaid period.
27. When cross-examined by the accused, he is specific in his evidence that as per the statistics available for the year 1973-1985, he has prepared the expenditure report. He has taken into consideration the Pension drawn
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 by his wife, income derived by her from tuition and also income of the accused while preparing the said report. The said statistics was prepared based upon the designation of the accused as he belongs to Group-D. Thus, contents of exhibits P3 to P5 are not denied by the defence.
28. PW.4 H.Manjaiah, the then Senior Auditor of Co- operative Department of Mysore was also called upon to furnish the pay particulars of accused commencing from 14.3.1973 to 17.11.1999. According to his evidence, during this period, accused has drawn a salary of Rs.5,01,239.03 and out of that Rs.1,98,335.40 was a deduction. Thus the net income from salary for the aforesaid period was Rs.3,02,903.63. To that effect, he submitted a report as per Ex.P6. Subsequently, from 1980 to 1999 he had submitted another report showing his total salary at Rs.4,07,750.03 out of that Rs.1,94,622.50 was deducted. The total net income from salary was shown as Rs.2,82,952.85 in the report. This is based upon the basic salary of the accused i.e. Rs.28,740/-. The said fact is
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 mentioned in Ex.P6. To this evidence, the accused has directed the cross-examination. It is elicited that as per the report Ex.P14 supplied by the Asst. Executive Engineer for the year 1973 to 1981, the arrears of salary is mentioned. The other suggestions are denied by him.
29. On reading the cross-examination directed to this witness, accused never denied his total net salary so drawn by him as mentioned in Ex.P6.
30. PW.5 P.Rathnakar the then RTO was called upon to furnish the vehicle particulars belonging to the accused as per the letter dated 11.03.2004. Accordingly, he addressed a letter with particulars as per Ex.P7 and showed the average expenses of maintaining the vehicle including the fuel. He submitted a report on 22.3.2004 as per Ex.P8 and P9. In the cross examination it is suggested that a Maruthi Van was standing in the name of wife of accused by name Manjula, 2nd vehicle Bajaj Chetak and Hero Winner two wheeler was standing in the name of accused whereas, another Bajaj Chetak vehicle was
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 changed in the name of accused on 8.6.1989 and it was transferred in the name of Yohan on 4.8.1998. Thus, it is very much clear that in the name of accused there were two two-wheelers and in the name of wife, Maruthi van were standing. He admits that, for the purpose of maintenance how much money has been spent cannot be stated by him and approximately, the expenses is stated.
31. PW.6 Nataraj Javaregowda, Asst. Executive Engineer, Water and Drainage Board at the relevant time at Mysore submitted a report/letter as per Ex.P10 stating that an amount of Rs.3,135/- was deposited with regard to the property standing in the name of Damodar and to that effect, a receipt is issued. The said amount is being paid for the period commencing from 29.6.1999 to 17.11.1999. The said Damodar is not examined in this case. No cross- examination is directed to this witness except denial.
32. PW.7 Ramu Kempegowda was the AEE, P.V.Mohalla Sub-Division at the relevant time, based upon a letter furnished information regarding payment of
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 electricity charges for the period commencing from 1.1.1996 to October 1996 to the extent of Rs.14,197/- and he had showed the average payment at Rs.24,833/- from May 1989 to December 1995.He identifies his letter as per Ex.p11.
33. In the cross-examination, he deposed ignorance that in whose name the said electrical meter with RR No. was standing. He admits that anybody can tender the electricity charges.
34. PW.8 M.Venkateshwara Rao, was the Motor Vehicle Inspector at RTO Office, Mysore at the relevant time, and he had issued letter regarding expenses towards Maruthi Van and Motor Cycles owned by the accused. He identified his report as per Ex.P9. But, in the cross- examination he states that personally he has mechanically examined the vehicles and he has not examined that in whose name the said vehicles are standing. But, the other witness so examined in this case have categorically stated that in the name of Smt.Manjula the wife of accused
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 Maruthi van is standing and two-wheelers were standing in the name of accused. This fact is not denied by the accused.
35. PW.9 Anuradha Ramaprasad, being the Income Tax Officer states that as per the records maintained in the Income Tax Office, Manjula has submitted Income Tax returns for the year 1998-99 and 1999-2000 and paid a tax of Rs.50,000/- so also for the next year she paid the tax of Rs.60,000/- He identified the letter at Ex.P12. He states in the cross-examination that, as per the information furnished by the assesses, tax was collected.
36. PW.10 Srikanta, a cycle shop owner deposed in his evidence that, he sold Chetak Scooter to the accused. He had purchased the same for Rs.10,000/-.He cannot say the quantum of sale proceeds of the said vehicle sold to the accused. It is his evidence that when the accused purchased the said vehicle, he has not paid the money and when demanded accused shown Rs.10,000/- bundle and
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 put on his feet. He gave the said money to him and asked him to read bible.
37. One thing is clear from the evidence of this witness that, it was he who sold the bajaj chetak to the accused and it was accused who got changed the RC particulars in his name in respect of the said vehicle. To that extent, the evidence of this witness is to be believed.
38. PW.11 H.P.Rajesh, Asst.Engineer, PWD at the relevant time in Mysore states in his evidence that, he has issued the pay particulars of the accused from the month of February 1973 to November 1975 and from the month of December 1978 to December 1981 as per Ex.p13 to P15. The accused has not denied his evidence.
39. PW.12 Vijayalakshmamma was the Teacher of Government Senior Primary School where the wife of accused by name Susheela was working as a Teacher. As per the request of the IO, this PW.12 has issued the pay particulars of Susheela from 28.4.1975 to 14.5.1976 as
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 per Ex.p16 to 18. There is no cross-examination directed to this witness, thereby accused admits the contents of Ex.P16 to 18.
40. PW.13 Karunakar Shetty was the IO who conducted raid. As per his evidence, there was a initial crime registered against the accused in Crime No.17/1999 of Lokayukta Police Station, Mysore against the accused. The investigation was conducted and one M.S.Patel, the then Dy.SP conducted the investigation and filed the B- report. It is his evidence that, thereafter, as per the orders of the High Court and the orders of the Special Court, investigation was conducted. To conduct the investigation, the Superintendent of Police had passed an order as per Ex.P20. After collecting the information for the check period commencing from 14.3.1973 to 24.3.2003, it was revealed that accused had amassed 207% more income than his real income which is disproportionate to his actual income. To that effect, he submitted a report as per Ex.P21 and based upon that, it was directed to take
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 necessary legal action. Accordingly, based upon the orders of his superiors, he registered the crime in Crime No.1/2003 and set the criminal law in motion.
41. He requested his colleague officers i.e. Inspector Venugopal and B.B.Lakshme Gowda to conduct the search and accordingly, called the Panchas stated above. As per his instructions on 25.2.2003, all the aforesaid officials and panchas reported to his office and he along with his staff and panchas, went to the residential quarters of accused at 7.40 a.m. and conducted the search by showing the search warrant. Prepared the Mahazar as per ExP1. So also he deputed Lakshme Gowda and pachanas to conduct search house no.165/1 of Yadavgiri. No articles were seized as per Panchanama as per Ex.P2. After conducting search, returned to the office so also Lakhsme gowda after conducting search and preparing Ex.P2 Mahazar returned to the office. He conducted part of investigation and requested the officers of the accused to furnish the details of income of the accused.
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42. This witness is cross-examined by the defence. He admits that, as the initial B-report was against the law, the B-report was filed. It is suggested to this witness that, on taking into account of the articles in the house, the price was fixed. He further states that, approximately rates are fixed to the articles at the time of search. Thereafter, he has not enquired about the value of the said articles. He admits that he has not conducted the investigation with regard to ownership of the vehicles so mentioned in Ex.P1. So also has not examined the vehicle documents. He denied other suggestions.
43. On reading the evidence of this PW.13, it was he who registered the crime and set the criminal law in motion, conducted initial investigation. To that extent, his evidence is to be believed.
44. PW.14, Lakshme Gowda, is the main investigation officer. According to him, as per the instructions of PW.13, he conducted the search in the
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 house belonging to the accused situated at Yadavagiri. When he conducted the search in his house, he could not get any documents of the property in the name of accused. He identified the search warrant. According to his evidence, when he took up the investigation, he has gone through the earlier investigation.
45. The detailed deposition of PW.14 is extracted in the form of table of noticing the property with the accused.
Table 'A' Document citied Deposition Ex. P 29-32 Immovable property documents received from registrar Ex. P 33 Susheela's Recurring deposit accountdetails (Received from Majula's 2nd Recurring depositaccount South Indian details Bank) Ex. P 34 Savings bank account details of E. D (Received from Prasad, Susheela and Manjula South Indian Bank) Ex. P 35 KGID loan and payment details Ex. P 36 Letter given by the Executive Engineer Building Division Ex. P 37 Letter pertaining to National SavingCertificate
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Ex. P 38 Details regarding LIC policy
premium paid by E D Prasad
Ex. P 39 & 40 Details of loan taken from KarnatakaBank, Saraswatipuram Branch for the Purchase of Bajaj Chetak Vehicle Ex. P 41 Letter from VST Auto Agencyreporting the value of the BajajChetak scooter. Ex. P 42 Letter regarding the assets providedby the Government Ex. P 8 & 9 Letter requesting the RTO Officials ofMysore to give the information regarding the fuel and maintenanceexpenses which is incurred by the 4 vehicles owned by E.D. Prasad Ex. P 10 Water bill details of House No. 165 Ex. P 11 Electricity bill details of House No.165 Ex. P 43 Electricity bill details of House No.145 (Yadavagiri house) Ex. P 44 Insurance particulars in respect of Maruti car received from United India Insurance Company Ex. P 45 Particulars in respect of South IndianBank locked (rent paid ) Ex. P 12 Letter from Income Tax Office furnishing details of Mrs. Manjula Ex. P 6 Brief report of salary of Susheela Ex. P 46 Particulars of the salary and pensionsof Ms. Susheela.
Ex P 47 Letter in respect of Building division(No information regarding loan of accused ) Ex. P 48 Letter pertaining to Vijaya Bank detailing the details of the amountpaid by one Mr Narendra to Mrs Manjula.
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 Ex. P 48 Certified account extracts of VijayaBank. Ex. P. 50 Schedule book containing schedule 1to 10.
Table 'B' For the purpose of ascertaining the acquisition of disproportionate assets by the accused following was considered by the IO.
Sl.No. Description 1 On 21/11/1994 the accused having LIC policy received a sum
of Rs. 6250/-which is after verifying that is correct by the LIC city branch , then it is considered.
2 As accused has purchased property at Mandi Mohalla for Rs.
1,95,000 from N. Basavaya. After spending Rs.2,60,000 to constructed the house on that property and sold it to Chanamma from Kollegal for Rs. 4,95,000 which is considered as income.
3 As property owned by Sushelamma's mother having 3 legal heirs so Rs. 45000 which was received by the sale of property divided into 3 party, so only Rs.15000 was considered as it , was a part of Susheela.
4 A sum of Rs. 18355 as gratuity amount of Susheela, having proper document, it is considered.
5 As Susheela received a sum of Rs. 3243 from KGID policy and bonus , as suitable documents were produced , it was considered.
6 as Manjula received an agricultural income of Rs. 375000 from K.V. Nagendra through cheque of Rs. 300000 and cash of Rs. 75000 as there is document for only Rs. 300000 which is considered as income.
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 7 As sale of ancestral property of Manjula which was sold at Rs.
50000 as there were 2 legal heirs , the sale amount was considered as it was part of Manjula.
8 As accused requested to considered the sale amount of the property which was owned by Manjula at H.D kote which was sold at Rs. 250000 which was considered as the proper documents were produced.
Table 'C' Items Not Considered as no documents/explanation offered by the accused to show his income.
Sl. No. Description 1 The income earned by the accused while working in the
Canteen during the period from 1961- 1970 amounting to Rs. 18,000/-. This is not being considered as it predates the period of consideration.
2 The income earned by the accused while working as NMR between the period of 1971-1973 amounting to Rs.3172/-.This is not being considered as it predates the period of consideration. 3 The salary of the accused as declared by him in the appendix dated 31.03.1987amounting to Rs.60,000/-.This is not being considered because the IO received details of salary from relatives.
4 Salary of the accused as declared by him for the period of April 1987 to November 1999 amounting to Rs.2,40,218/-. This is not being considered because the IO received details of salary from relatives.
5 Proceeds from sale of Bajaj Chetak scooter (CNV7439) amounting to Rs. 15,000/- as declared by the accused. This is not being considered because the scooter originally purchased for a price of Rs.5,000/- and the re-sale price cannot be higher than the original purchase price. 6 LIC cheque balance as declared by the accused amounting to Rs. 1060/-. This is not being considered because documents supporting the same are not produced.
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 7 Salary of Ms.Susheela, the wife of the accused as declared by the accused amounting to Rs. 3,70,850/- is not being considered because the Investigating Officer has already received details of the same through the concerned authorities. 8 The proceeds from the sale of Mrs. Susheela's mother's property is partially considered. (Refer Items Considered Table Sl. No. 3).
9 Sale proceed from the sale of the property of Mrs.Susheela's sister amounting to Rs.2,23,250/-. This is not being considered as no proper documentation was given to support this claim. 10 Savings of Mrs. Susheela amounting to Rs1,75,000/- is not considered as there is no proper documentation to support this claim.
11 Earning from the tailoring work of Mrs. Manjula, the second wife of the accused amounting to Rs. 4,29,00/- for the period of 1986 to 1999. This is not being considered because there is no proof of the such work being done by Mrs. Manjula. 12 Agricultural income of Mrs. Manjula received through K.V.Narendra is partially considered. The partial non consideration is due to the lack of any documentary evidence of the income received in cash amounting to Rs.75,000/-. (Refer Items Considered Table Sl.No.6.) 13 Gift received by the accused at the time of marriage amounting to a sum of Rs. 90,800/- is not considered due to a lack of evidence.
14 Savings of Mrs. Manjula amounting to Rs. 80,000/- is not considered as it is outside the period of consideration.
Table 'D' Report of IO shows the particulars regarding the assets, expenditure, income statement Particulars Amount mentioned in Rs.
Asset 16,14,544
Expenditure 15,03,412
Income 11,73,353
Disproportionate Asset (DA) 19,44,603
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46. This PW.14, has been subjected to severe and intensive cross-examination. He admits in the cross- examination that with regard to the misuse of official position by the accused, no documents are secured by him. According to him, the salary particulars of the accused were obtained from the concerned Department. As per the information from the Department, his income from the salary is calculated. He further states that as per Ex.P6, there are no documents available with regard to the salary of the accused from year 1973 to 1981. Approximately the salary of first wife Susheela is calculated from the year 1986 to 1992 as stated by the accused. No documents were furnished to show the exact quantum of salary. The salary included Dearness Allowance also. It is stated by him that, accused has given statement about purchase of Bajaj Chetak scooter in the month of August 1998 for Rs.15,000/-. He admits that no expert opinion was obtained regarding the gym articles found in his house. He admits that prior to joining the employment he married his first wife in the year 1969. His
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 first wife was a Teacher for 18 years in the Government School. According to him, no investigation was conducted with regard to the income earned by the accused prior to his employment and even no enquiry was made to the first wife with regard to her income. He is consistent that, the wife of the accused could not have earned that much of money from tuition. He admits that the sister of Susheela was not alive when the property was sold by Susheela. He denied the suggestion that the entire sale proceeds of a house situated at Lashkar Mohalla was retained by Susheela. He admits that, he has not enquired with regard to the agricultural income earned by Manjula and Narendra to the extent of Rs.75,000/-. He denied other suggestions about the savings made by the accused and his family members. Though he has been directed with searching cross-examination, but, he has denied all suggestions. He is consistent about amassing wealth by accused disproportionate to his legally known sources.
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47. On reading the evidence of this PW.14, he being the investigation officer has collected several documents commencing from Ex.P29 to P40 during the course of investigation which are documents pertaining to immovable property received from Sub-Registrar, particulars regarding recurring deposit account standing in the name of Manjula, saving bank accounts of accused and two wives, KGID loan and payment details, letter given by the Executive Engineer, buildings division, letter pertaining to NSC, regarding LIC premium paid by the accused, details of loan availed by accused from Karnataka Bank, Saraswathipuram Branch towards purchase of Bajaj Chetak scooter. The other documents are documents obtained from RTO, water bill, electricity bills, insurance particulars of Maruti Van, particulars with respect of South Indian Bank, letter from Income Tax and other correspondence including brief report of salary of Susheela and certified account extract of Vijaya Bank which are marked in evidence.
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48. For calculating the income as per the evidence spoken to by PW.14, he has considered the income as per Table 'B'. During the course of evidence, he has stated that though the accused has stated so much of income received by him in all fourteen items but, no proper supportive documents were produced by him. Therefore, such income stated to have been earned by the accused is not considered to calculate the income.
49. The learned counsel for the accused with all vehemence submits that though the prosecution relies upon the investigation report showing income at Rs.8,60,000/-, assets at Rs.35,84,800/- expenditure at Rs.8,80,713/- and total assets and expenditure is shown at Rs.44,65,513/- but, it is wrong. According to him, the investigation agency has shown Rs.36,05,513/- as disproportionate income.
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50. According to him, the prosecution after investigation has shown the following assets, expenditure, income and disproportionate assets i.e.,:
Particulars Rs.
Assets Rs.16,14,544.30/-
Expenditure Rs.15,03,412.75/-
Assets plus expenditure Rs.31,17,957.05/-
Income Rs.11,73,353.44/-
Disproportionate assets Rs.19,44,603.61/-
Thus, showing the total disproportionate assets to the extent of 168.73%.
51. On reading the judgment of the trial Court, on re-calculation of assets and liabilities, the trial Court has come to the conclusion that accused had earned the following income and made the expenditure:
Particulars Rs.
Assets of the accused Rs.14,52,925/-
Expenditure Rs.15,53,412.75
Assets plus expenditure Rs.30,00,638.75
Income of the accused Rs.9,49,208.44
Disproportionate assets Rs.20,57,130.31
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Thus, calculated the disproportionate assets at 216.72%.
52. As per the submissions of the counsel for the accused, the other income earned by the accused worth Rs.16,14,544.30 as tabled above towards purchase and sale of movable and immovable properties has not been considered either by the Investigation Officer or by the trial Court. It is his submission that on analyzing the evidence placed on record by the prosecution, the definite value of the asset would be Rs.14,46,426/-. He also submits that the expenditure is not properly calculated.
53. On reading the evidence of PW.14, it is very much clear that accused has not produced relevant proper and legal documents though he has furnished the details as per Ex.P50. This Ex.P50 appears to be a self-serving document. No authenticity or legality is to be attached to this document. When it is alleged by the prosecution that the accused is alleged to have amassed wealth
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 disproportionate to his income, the burden lies on him to show that whatever the income earned by him, as revealed in the investigation is earned by his own income legally earned.
54. In State of Karnataka v. Selvi J.Jayalalitha and others reported in (2017) 6 SCC 263, it is held by the Hon'ble Apex Court with regard to the calculation. In this judgment, the Hon'ble Apex Court has discussed with regard to the income tax returns so submitted during the course of investigation. It is held that "the income tax returns are not binding on a criminal court and at best, only are relevant and always subject to its independent appraisal on merits".
55. In this case also some of the income tax returns are relied upon by the accused. But, they are self-serving documents. It is they who have shown their income as per their salary particulars. In the said income tax returns, they have not shown sale proceeds of the land and other
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 income. As held in the aforesaid judgment, independent evidence in support of the claim of the accused is quite necessary to accept the defence of the accused. We cannot give unassailable primacy to Ex.P50 and conclude that the entire text of Ex.P50 is genuine. The documents produced must have probative potential for appreciation. With regard to the possessing the property which are not considered by the IO or by the trial Court, except the denial in the cross-examination, no documents are produced by the accused.
56. During the check period, as stated in the aforesaid paragraphs, it was revealed as per the case of the prosecution that, he had earned wealth more than his income. He has not stated any source of such earning. No doubt, the investigation officer has not availed the services of experts to value the articles kept in the house, but, the landed property so earned by him so also the vehicles etc., he has to show the proper source. The IO has categorically stated that as there were no proper and suitable
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 documents with regard to the properties so possessed and owned by the accused, he has not considered the same. This evidence spoken to by PW.14 the Investigation Officer do establish that accused was not able to produce suitable and proper documents to show that, he was really innocent and has not committed any offence as alleged against him. But, he is unable to produce any of the documents. Even he has not lead any oral evidence.
57. Hon'ble Apex Court in the case of Kedari Lal v. State of Madhya Pradesh and others reported in (2015) 14 SCC 505 while discussing with regard to the known source of income has stated in Para.10 which is extracted hereunder:
"10. The expression "known sources of income" in Section 13(1)(e) of the Act has two elements, first, the income must be received from a lawful source and secondly, the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah [N. Ramakrishnaiah v. State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454], while dealing with
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 the said expression, it was observed : (SCC pp. 86-87, para 17) "17. '6. ... Qua the public servant, whatever return he gets from his service, will be the primary item of his income. [Other income which can conceivably be] income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment."
The categories so enumerated are illustrative. Receipt by way of share in the partition of ancestral property or bequest under a will or advances from close relations would come within the expression "known sources of income"
provided the second condition stands fulfilled that is to say, such receipts were duly intimated to the authorities as prescribed.
So also in the State of Tamil Nadu v. R. Soundirarasu, reported in (2023) 6 SCC 768, wherein it is held that, "41. While the expression "known sources of income" refers to the sources known to the prosecution, the expression "for which the public servant cannot satisfactorily account" refers to the onus or burden on the accused to satisfactorily explain and account for the assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evidence Act applies. The Explanation to Section 13(1)(e) is a procedural section which seeks to define the expression "known sources of income"
as sources known to the prosecution and not to the accused. The Explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 to have an open, wide and roving investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared. The undeclared alleged sources are by their very nature are expected to be known to the accused only and are within his special knowledge, (emphasis supplied) The effect of the Explanation is to clarify and reinforce the existing position and understanding of the expression "known sources of income" i.e. the expression refers to sources known to the prosecution and not sources known to the accused. The second part of the Explanation does away with the need and requirement for the prosecution to conduct an open ended or roving enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused public servant. As noticed above, the first part of the Explanation refers to income received from legal/lawful sources. This first part of the expression states the obvious as is clear from the judgment of this Court in N. Ramakrishnaiah [N. Ramakrishnaiah v. State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454].
58. Thus, from the aforesaid judgments, it is very much clear that the expression `Known Source of Income'
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 is not synonymous with the words `For which the public servant cannot satisfactorily account'. These two expressions connote and have different meaning, scope and requirements.
59. Though in the instant case, accused submits that he has got these properties from his known source of income from salary of himself, perks, salary and terminal benefits of his first wife and income earned by way of tuition so also sale of immovable properties but, this statement of the accused cannot be taken into consideration for the simple reason that no suitable and proper documents are produced by the accused. As rightly observed by the trial Court, income from agriculture to the extent of Rs.75,000/- per year by investing just Rs.25,000/- cannot be imagined. Therefore, without any document to support, rightly the trial Court has rejected the defence of the accused. Now the defence of the accused appears to be an after-thought and never reflected in any of the records maintained by him. Thus, it
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 is clearly established through evidence that the other income which the appellant-accused claims are not from the known sources but, otherwise.
60. Though accused states that his first wife Susheela was a teacher and she used to take care of the family and married second wife Manjula being a relative of Susheela etc., and they were earning income but, this self- explanatory defence of the accused cannot be accepted as truthful one. Evidently, second wife was not working, had no income. She sold her ancestral property along with her brother and got her meager share.
61. It is a settled proposition of law that, in case of disproportionate assets acquired by the public servant, the initial burden is on the prosecution to prove objectively the property found in possession of the accused were disproportionate to his known source of income. In catena of judgments of the Supreme Court expression `known sources of income' has been explained.
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62. The learned trial Court, after meticulous examination has rightly come to the conclusion that accused has amassed disproportionate assets beyond the known sources of his income. He being group-D employee could not have earned that much of income with a meager salary. Even by re-assessing the evidence and on reading the entire documentary and oral evidence this Court cannot find any fault with the trial Court. If at all any benefit in error of assessment regarding the value of the assets acquired during the check period to be given it must be very meager and not in the manner as stated by the accused. Thus, it is evident that the accused had acquired wealth as rightly calculated by the trial Court from his known source of income. He has not declared his income as he was a Group-D employee. He being a public servant, is expected to seek permission of his Superior Authority or the Appointing Authority as the case may be, to purchase the immovable property as well as movable property showing his known source of income to possess
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 the same under Rule 23(2) of the Karnataka Civil Services (Conduct) Rules, 1966 which reads as under:
"23.Movable, immovable and valuable property: (1) xxxx
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) xxxxx (2) No Government Servant shall, except with the previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family:
Provided that the previous sanction of the prescribed authority shall be obtained by the Government servant if any such transaction is.-
(i) with a person having official dealings with the Government servant; or
(ii) otherwise than through a regular or reputed dealer:
Provided further that nothing in this sub-rule shall apply to the transactions entered into by a member of the family of the Government servant out of his or her own funds (including gifts, inheritance, etc) as distinct from the funds of the Government servant himself/herself, in his or her own name and in his or her own right.
63. But, in the instant case, the accused has not obtained any permission to purchase any of the
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 immovable properties or the movable properties worth more than Rs.5,000/-.
64. In the year 2015, as rightly submitted by the learned counsel for the accused, the Government of Karnataka has issued a circular mandating the Group-D employees to declare their assets and liabilities. It is prospective in nature. But, this circular would not help the accused now as he has not obtained any permission from the appointing authority to purchase the immovable property atleast. This goes against the defence of the accused.
65. So far as sanction is concerned, though it is alleged that sanction is not properly obtained and sanctioning authority has not applied its mind, but, prosecution has examined PW.15 Parashivamurthy, the Executive Engineer at the relevant time at Mysore PWD who has issued Ex.P52 the sanction. But, unfortunately he has been declared hostile by the prosecution. In the cross-
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 examination he has stated about putting his signature on the sanction order, being the disciplinary authority. According to his cross-examination, he has verified the documents.
66. It is argued by the counsel for the accused that as the sanction is invalid and therefore, the whole prosecution is vitiated. Because of this sanction, no prejudice or injustice has been caused to the accused. It is held by Hon'ble Apex Court in Nanjappa v. State of Karnataka reported in AIR 2015 SC 3060 that this question of validity of sanction can be raised at any stage of proceedings. Merely because the said plea can be raised at any stage, that will not vitiate the sanction. The trial Court has considered the same and no proper grounds have been made out in the appeal. Therefore, there is no substance in the submission of the counsel for the accused with regard to this plea.
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67. The learned counsel for the appellant also relies upon the judgment of the Hon'ble Apex Court in Vijender vs. State of Delhi reported in (1997) 6 SCC 171. This judgment was rendered with regard to the appreciation of the evidence in criminal cases in an offence of kidnapping under the IPC and under the Indian Arms Act read with TADA Act. The facts of this case cannot be applied to the present facts of the case and the ratio so laid down differs from the said case with regard to the facts of this case. With regard to the ratio laid down in the said judgment there is no dispute. It was a case of a murder and the prosecution was under obligation to prove the homicidal death. Therefore, the said decision cannot be justifiably made applicable to the present facts of the case.
68. He also relies upon the case of State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, reported in (1981) 3 SCC 199. In this judgment, the Hon'ble Apex Court have held with regard to the nature and extent of burden of proof of prosecution and accused
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 in criminal trial as laid down under Section 101, 102 and 106 of the Indian Evidence Act, 1872. In para.12 and 13 of the said judgment, the Hon'ble Apex Court has held as under:
12. The terms and expressions appearing in Section 5(1)(e) of the Act are the same as those used in the old Section 5(3). Although the two provisions operate in two different fields, the meaning to be assigned to them must be the same. The expression "known sources of incomes" means "sources known to the prosecution". So also, the same meaning must be given to the words "for which the public servant cannot satisfactorily account" occurring in Section 5(1)(e). No doubt, Section 4(1) provides for presumption of guilt in cases falling under Section 5(1)(a) and (b), but there was, in our opinion, no need to mention Section 5(1)(e) therein. For, the reason is obvious. The provision contained in Section 5(1)(e) of the Act is a self-contained provision. The first part of the section casts a burden on the prosecution and the second on the accused. When Section 5(1)(e) uses the words "for which the public servant cannot satisfactorily account", it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Section 5(1)(e) of the Act unless the prosecution disproves all possible sources of income.
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13. That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5(1)(e) of the Act. The expression "burden of proof" has two distinct meanings (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidential burden i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court in Jhingan case [AIR 1966 SC 1762 : (1966) 3 SCR 736 : 1966 Cri LJ 1357] i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey, L.C., in Woolmington v. Director of Public Prosecutions [1935 AC 462] . The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in Swamy case [AIR 1960 SC 7 : (1960) 1 SCR 461 : 1960 Cri LJ 131] , the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Section 106 reads:
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In this connection, the phrase "burden of proof" is clearly used in the secondary sense, namely, the duty of introducing evidence. 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.
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69. In view of the ratio laid down in the said judgment, the initial burden is definitely on the prosecution which can be termed as legal burden of establishing the guilt of the accused. So also, there is evidential burden on the prosecution in proving the guilt of the accused by leading evidence. Thus, the prosecution is under obligation to prove the guilt of the accused beyond reasonable doubt. Once the ingredients of offence are proved by leading evidence, then the burden shifts to the accused to satisfactorily account for his possession of disproportionate assets. Thus, the nature of the burden shifts on the public servant who found in possession of disproportionate assets under Section 5(1)(e) of the Prevention of Corruption Act. This judgment lays down the principles to be followed by the courts in appreciating the evidence in a case of present nature.
70. The learned trial Court, during the course of judgment have clearly observed that accused being a D- group employee how he could mobilize all these funds for
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 the purpose of purchasing the properties so stated by him, has not explained with the satisfactory evidence.
71. The learned trial Court by relying upon the judgment in case of DSP Chennai v. K. Inbasagaran, reported in (2006) 1 SCC 420 has observed that, when it is proved by the prosecution that accused had acquired property disproportionate to his known source of income and then it shifts on accused to offer plausible evidence. It is also observed M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad reported in AIR 1993 SC 313 and also other judgments of the Hon'ble Apex Court wherein, it is categorically held that accused has to place materials before the Court to believe his version of the source of income. In the aforesaid cases, the witnesses on behalf of the defence were examined. But in this case, accused has not chosen to examine himself as a defence witness or any other witnesses like his first wife Susheela or second wife Manjula to substantiate his plea or defence.
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72. As rightly observed by the trial Court and the documents furnished by the accused by way of Ex.P50, he acquired house property bearing No.165 in the joint name of his two wives by name Susheela and Manjula and shown the consideration of the said property at Rs.7,00,000/-. As per the records produced by him, the said property was so purchased on 25.6.1999. There is no evidence that he has sold the same. He also acquired 59 guntas on 23.2.1998 for a consideration of Rs.30,000/- in the name of second wife Manjula and her brother Narendra Rao. The investigation officer has considered the investment by Manjula at Rs.15,000/-. It has come in the evidence that the said property was sold for an amount of Rs.50,000/- and share of Manjula was considered at Rs.25,000/-. This amount was not considered by the IO as narrated above. The accused also ventured to purchase one more landed property in Sy.No.118 measuring 5 acres 4 guntas for Rs.1,00,000/- on 26.10.1993. The IO has considered the same and share of Manjula is considered as Rs.50,000/-. Very interestingly as rightly observed by the
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 trial Court, accused claim that every year the said landed property was earning income of Rs.75,000/- and received the total income of Rs.3,75,000/- by way of cheques. But, the said property was sold at Rs.2,50,000/- in favour of Narendra Rao in the year 1999. This figure so stated by the accused is totally an exaggeration. Though, the accused has showed investment of Rs.50,000/- towards purchase of landed property by his wife but, every year how could it earn Rs.75,000/- income is not explained. The IO has taken into consideration of purchase of property measuring 27 guntas in Sy.NO.30/4 for Rs.10,000/- on 23.2.1993 and considered the investment by the second wife at Rs.5,000/- but, no documents are produced to show that said property was sold or still with the accused. It has come in the evidence of PW.13 that the accused has purchased the property in the name of his both the wives in No.165 and Sy.No.30/4 measuring 27 guntas. He has also shown the other properties situated at Ibbanilavadi to the extent of 59 guntas and 5 acres 4 guntas in Madapura were sold. When it is a case of the
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 prosecution that accused purchased site bearing No.156 for Rs.44,600/- on 29.10.1994, when it was purchased it must also include the registration charges etc.. He also has purchased site bearing No.154 on 27.10.1994 and the amount so spent Rs.1,09,512/-. It has come in the evidence that accused had invested an amount of Rs.2,60,000/- towards construction of a house and sold the same for Rs.4,95,000/-. He purchased other house bearing No.197 on 25.9.1996 for Rs.4,56,000/- and he again sold the same for Rs.4,84,000/- on 2.7.1998.
73. On scrupulous reading of Ex.P50 and the cross- examination directed to the IO, it reveals that these transactions have taken place in between 1993-1998. It is not the defence of the accused that out of the property sold standing in the name of his wife Manjula, he has taken the sale consideration. Likewise, the IO has considered all these aspects and come to the conclusion that with regard to the income earned by him is disproportionate to the assets of the accused. Every
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 transaction so stated by the accused in Ex.P50 and the materials collected by PW.13 were considered by the trial Court meticulously.
74. Once the prosecution has discharged the burden of proof cast on it, then the onus shifts on the accused to disprove the same. The cross-examination directed to PW.14 the important witness to establish about proving of the case of the prosecution. Though the accused contends that the fixation of the prices by the IO is according to his understanding or whims and fancies but, that time, the value of the property was rightly considered by the IO.
75. The learned trial Court based upon the evidence collected by the IO, spoken to by him and documents like Mahazar etc., has opined that this accused has amassed wealth which is disproportionate to his income considering the material available. As per the mention about the actual assets which are made available on record, total amount which is calculated comes to Rs.15,53,412.75 after
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 allowing deductions towards expenditure. Even the trial Court has given deductions with regard to the assets acquired by selling Bajaj Chetak vehicle at Rs.15,000/- so also towards purchase of golden ornaments etc., the trial Court has considered the same in para.117 of its judgment. Likewise in subsequent Paras also the trial Court has considered all these aspects. As per the calculations made, total assets is worked at Rs.14,52,925/- plus 15,53,412.75 expenses during the check period. Then the total amount comes to Rs.30,06,338.75. As per the records made available, the income being earned from the known source comes to Rs.9,49,208.44. If it is deducted from the above total of Rs.30,06,338.75, it comes to Rs.20,57,130.31. Then, it is 216.72% increase in the assets of the accused which can be termed as disproportionate to the known source of income. Thus, it is proved that accused has committed criminal misconduct in acquiring the properties worth Rs.20,57,130.31 in excess of his known source of income and this exceeds normal margin of 10%.
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011
76. As rightly observed by the trial Court, the accused has utterly failed to satisfactorily account for the acquisition of the aforesaid properties and hence, it is proved by the prosecution that accused is guilty of committing the offence punishable under Section 13(1)(e) read with Section 13(2) of PC Act.
77. Therefore, in my considered view, the prosecution has been able to establish the guilt of the accused beyond all reasonable doubt. I do not find any factual or legal error committed by the Trial Court in passing the impugned judgment.
78. So far sentence is concerned, the trial Court sentenced the accused to undergo rigorous imprisonment for three years and pay a fine of Rs.40,00,000/-. No argument is advanced on behalf of the appellant-accused that the fine amount so imposed by the trial Court is exorbitant and on higher side. Even no acceptable grounds
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 have been made out so as to interfere into the sentence of imposing the fine.
79. So far as imposition of sentence of rigorous imprisonment for a period of three years is concerned, the check period as per the prosecution is from 14.3.1973 to 17.11.1999. Based upon the investigation, charge sheet was filed in the year 2005. It is submitted that by this time, the accused has attained his superannuation. Except the salary, he has no other income during his employment. More than 19 years have lapsed after registering the case against accused and the trial Court passed judgment on 3.9.2011. That means he is fighting the criminal litigation right from 2003 onwards. That is 25.2.2003 and from that date, he is fighting the criminal litigation. By this time, he must have suffered mentally, financially so also physically because of age. Therefore, as submitted by the counsel for the appellant-accused, if leniency is shown in imposing the sentence of imprisonment, it would meet the ends of justice. The
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 aforesaid factors are the only the mitigating circumstances to show leniency. In view of background of this case, as well as the number of years the criminal case is pending against the appellant-accused, if the sentence of rigorous imprisonment is reduced to one year from three years, it would meet the ends of justice. So far as imposition of fine is concerned, it has to be remained undisturbed. Accordingly, the appeal filed by the appellant deserves to be allowed in-part to the extent of modification of sentence of imprisonment only.
Resultantly, I pass the following:
ORDER
i) The appeal is allowed in-part.
ii) Judgment of conviction and order of sentence dated 03.09.2011 passed by the Prl. District and Sessions Judge, Mysore in Spl. Case No.29/2005 insofar as imposition of fine, shall remain undisturbed.
iii) The judgment of conviction and sentence of imprisonment dated 03.09.2011 passed by the Prl. District and Sessions Judge, Mysore in Spl. Case No.29/2005 is modified with a direction
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NC: 2024:KHC:24244 CRL.A No. 996 of 2011 to the accused to undergo rigorous imprisonment for one year instead of three years.
iv) There shall be modified conviction warrant to be issued by the trial Court by securing presence of the accused before it and commit him to the prison.
v) The unaccounted property as calculated by the IO shall stand confiscated to the State Revenue.
Sd/-
JUDGE SK List No.: 1 Sl No.: 2