Kerala High Court
Muralimohan Nair vs V.S. Kurup on 7 April, 2011
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1225 of 2002()
1. MURALIMOHAN NAIR, S/O. LATE
... Petitioner
Vs
1. V.S. KURUP, INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA REP. BY PUBLIC
For Petitioner :MURALIMOHANAN NAIR(PARTY-IN-PERSON)
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :07/04/2011
O R D E R
P.S.GOPINATHAN, J.
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Crl.A. No. 1225 of 2002
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Dated this the 7th day of April, 2011.
J U D G M E N T
~~~~~~~~~~~~ The appellant was convicted by the Special Judge (SPE/CBI)-II, Ernakulam for offence under Section 13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act, (hereinafter referred to as 'the PC' Act) and sentenced to rigorous imprisonment of one year and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for three months. Assailing the above conviction and sentence, this appeal was preferred.
2. The Appellant was working as Sub Divisional Engineering(Officiating) at Karunagappally. While so, reliable source of information was received to CBI Kochi, that the appellant had amassed disproportionate assets. A preliminary investigation was conducted and on finding that there is prima face case, a crime was registered by PW73, the Inspector, CBI as R.C. 28/A/96 for which Ext.P94 First Information Report was prepared. PW73 took over the investigation. While so, he left the job. The investigation was taken over by PWs.74, 75, Crl.A.No.1225/2002 2 and then by PW53. PW53, the Inspector after completing the investigation filed a charge sheet alleging that the appellant was working as Junior Telecom Officer from September 1987 to 16.5.1995 and, thereafter, as Sub Divisional Engineer (Officiating) at Karunagappally, till 10.7.1996. As on 31.8.1987, the total assets of the appellant was Rs.8,900/- only. Till 10.7.1996, he had a total income of Rs.9,10,827/-. But he had acquired assets worth Rs.14,75,173/-. Thus he had a disproportionate income of Rs.5,71,986/- during the said period. The learned Special Judge took cognizance and issued process responding to which the appellant entered appearance. He was furnished with the copy of the final report and connected documents. Thereafter, the appellant and the prosecution were heard. Having found that there are materials to send the appellant for trial, a charge for offence under Section 13(2) r/w 13(1) (e) of the PC Act was framed. When read over and explained the appellant pleaded not guilty. Hence, he was sent for trial. On the side of the prosecution, PWs.1 to 75 were examined and Exts.P1 to P128 series were marked. After closing the evidence for the prosecution the appellant was questioned under Section 313 (1) (b) of the Code of Criminal Procedure. He Crl.A.No.1225/2002 3 denied the incriminating evidence. Further he filed a statement under Section 243 Cr.P.C stating that the Diwans cot, table, chairs and fridge that he had in his house were gifted by his father and that those articles should not be counted as his acquisition and that the value of the articles shown are also exorbitant. The value of the house was only Rs.4,00,099/- as against Rs.6,84,600/- estimated by the prosecution. The total value of the landed properties acquired by the appellant and his wife would come to Rs.1,02,400/- only. Rs.15,000/- invested by his sister in the name of her daughter under U.T.I Rajalakshmi Scheme was wrongly calculated as the expenditure on the side of the appellant. The investigating Officer had added a sum of Rs.2,35,000/- being the value of a Maruti Car bearing registration No.KL-2E 4242 towards the assets acquired. The appellant did not purchase the car. He had only executed an agreement to see whether he could arrange finance for the car. Since the finance could not be arranged, he did not purchase the car. The appellant had availed a sum of Rs.1,11,360/- as advance from his Provident Fund account. That was not fully calculated by the Investigating Officer. The wife of the appellant had her own business and income in addition to the income from the Crl.A.No.1225/2002 4 agricultural properties. That income of Rs.2,66,673/- was not given credit by the Investigating Officer. The assets determined by the Investigating Officer as on the date of the commencement of the check period is not correct. Then he had assets worth Rs.29,300/-. If the assets acquired by the appellant were properly assessed, and the income of the wife is duly credited, it would have been only Rs.6,07,376/- as against estimate of Rs.14,75,173/- and that the appellant had no acquisition of disproportionate assets. The assets he had got were legally acquired during the relevant period.
3. Responding to the call to enter his defence. The appellant examined DWs.1 to 10. Exts.D1 to D25 were marked. On appraisal of the evidence on record, the learned Special Judge arrived at the following calculation statement:-
1. Assets at the end of the check period (Statement 'B' with modification) - Rs.11,43,195/-.
2. Assets at the beginning of the check period.
(Statement 'A' with modification) - Rs.29,300/-.
3. Assets acquired during the check period.
(Rs.11,43,195-Rs.29,300/-) - Rs.11,13,895/-. Crl.A.No.1225/2002 5
4. Income during the check period.
(statements 'C' with modifications) - Rs.9,64,242/-.
5. Expenditure during the check period (Statement 'D' with modifications) - Rs.2,85,936/-.
6. Likely savings during the check period.
(Rs.9,64,242/- Rs.2,85,936/-) - Rs.6,78,306.
7. Disproportionate assets acquired during the check period.
(Rs.11,13,895-Rs.6,78,306/-) - Rs.4,35,589/-.
4. Upon arriving such a calculation statement, the Special Judge had further arrived at a conclusion that the appellant had acquired disproportionate assets during the check period 45% over his income and that the appellant had not satisfactorily accounted his assets. Thereupon, the Special Judge found the appellant guilty of criminal misconduct. Consequently, the conviction and sentence under challenge.
5. I heard Sri.M.K.Damodaran, learned Senior Counsel appearing for the appellant and Sri.Chandrasekharan Pillai, Standing Counsel for the CBI and also perused the records. Crl.A.No.1225/2002 6
6. The fact that the appellant was working as a Junior Telecom Officer from September 1987 to 16.5.1995 and, thereafter, he was working as Sub Divisional Engineer (Officiating) till the end of the check period at Karunagapally, in Kollam District is not only disputed, but also admitted. The main contention raised by the learned Senior Counsel appearing for the appellant is that there is serious omission on the side of the prosecution whereby income by way of GPF advance, dearness allowance arrears, honorarium and festival advance along with the income of the wife who had independent income from her business and agricultural land was omitted. On the same time there is duplicate entry regarding expenditure in statement 'D', so also there is exaggeration in calculating the domestic expenses. According to the learned counsel the expenditure calculated was for 6 member family. Whereas the family of the appellant included only wife and two kids. The first child was born on 10.5.1989 and second child was born on 17.4.1993. According to the learned counsel, the actual expenditure is only 50% of the expenditure calculated by the prosecution. The further argument that was advanced is that as regards one item of property, the trial court had added a sum of Rs.48,900/- over Crl.A.No.1225/2002 7 the value shown in the document by which the property was purchased and that addition is not legally sustainable. Further submission is that, the total cost of construction of the house of the appellant would be only Rs.4,00,099/- including compound wall. The compound wall was constructed after the check period. The building was valued at Rs.6,84,600/-. The last contention that was advanced is that the trial court would not have added the value of the Maruti Car which the appellant had not owned at any time.
7. I shall first deal with the contention regarding GPF advances availed by the appellant during the year 1991-92 to 1995-96 evidenced by Ext.D12 series were not reckoned. The total amount covered by Ext. D12 series would come to Rs.53,215/-. Going by paragraph 71 of the judgment under challenge it is seen that the trial Judge had given credit of that amount also. Having confronted with paragraph 71 of the judgment, the learned senior counsel submitted that it is a mistake on his part and that since the trial court had already given credit of that amount the argument on that aspect is not pressed. But the learned counsel would further submit that Crl.A.No.1225/2002 8 Ext.P81 salary particulars would show that recoveries were made from the salary during the check period towards GPF advances during the period 1988-91. Going by Ext.P81 that submission appears to be correct. However, there is no data regarding the withdrawal. It is submitted by the learned senior counsel that the documents relating to the withdrawal was not retained in the office and so he could not get a copy of the same. But, for that reason, the appellant cannot be found fault ith. It was the duty of the prosecution to investigate about all the income sources. Because of the failure of the prosecution the only option available is to give reliance to the statement of the appellant in that regard. Getting instruction from the appellant, it was submitted that the appellant had availed GPF advances during August 1988, April 1989 , June 1990 and February 1991, whereby he had obtained Rs.7000, Rs.6000, Rs.10,000 and Rs.5000 respectively (totally amounting to Rs.28,000/-). Having due regard to the fact that recoveries are seen made in Ext.P81 and that from 1991-92 onwards the appellant had been admittedly availing GPF advances, I find that the submission of the appellant that he had availed advance amounting to Rs.28,000/- during the period 1988-91 is convincing and I find Crl.A.No.1225/2002 9 that a sum of Rs.28,000/- is to be added towards the income of the appellant.
8. The learned senior counsel for the appellant submitted that Ext.P81 would show that the appellant had availed festival advance and there is recovery amounting to Rs.1280/- as per Ext.P81. Though a sum of Rs.40/- is seen recovered as per column No.15 of Ext.P81, it is not revealed out as to for what purpose the recovery was made. The learned counsel had canvassed my attention to the copy of Ext.P81 furnished to the appellant along with the final report. It would show that recovery is towards the festival advance. In the above circumstance, I find that there is no justification in omitting that amount and I find that a sum of Rs.1,280/- is also to be added towards the income.
9. Yet another omission committed by the investigating officer regarding the income of the appellant is the bonus that the appellant had obtained during the check period. The statement of accounts would show that no such income was counted by the investigating officer. PW3, the District Accounts Crl.A.No.1225/2002 10 Officer, in cross examination had admitted that the appellant was entitled to bonus. However, no data was furnished. Regarding the bonus also, it was the duty of the prosecution to probe into. But, there is failure. For that reason, in the light of the evidence of PW3, in this regard also, the defence version has to be given due regard. Taking instruction from the appellant, the learned counsel submitted that during the check period the appellant had received the following amounts towards bonus against the respective dates.
1) 11.10.1987 - Rs.2145/-
2) 25.9.1988 - Rs.2655/-
3) 8.10.1989 - Rs.2948/-
4) 10.10.1990 - Rs.3270/-
5) 27.9.1991 - Rs.3495/-
6) 12.10.1992 - Rs.3780/-
7) 7.10.1993 - Rs.3975/-
8) 12.10.1994 - Rs.4155/-
9) 29.9.1995 - Rs.5580/-
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Total Rs.31,003.00/-
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Crl.A.No.1225/2002 11
The learned standing counsel for the CBI is not in a position to deny the possibility of having the appellant received the above amount as bonus. He has no case that the bonus amount mentioned by the appellant is exorbitant or that the appellant was not entitled to receive bonus. In the above circumstance, I find that a sum of Rs.31,003/- can be added under the head bonus towards the income of the appellant during the check period.
10. Referring to Ext.D22, the certificate issued from the income tax department, the learned counsel for the appellant would submit that the wife of the appellant had her own business and income thereon in addition to the agricultural income. Ext.D22 proved by DW6, the income tax officer, Alappuzha, would show that the wife of the appellant had submitted income tax return, whereby she had declared a business income of Rs.33,000/- during the accounting year 1993-94. During 1994- 95 she had declared a business income of Rs.38,000/- and agricultural income of Rs.60,000/-. During 1995-96, she had declared business income amounting to Rs.45,016/- and agricultural income amounting to Rs.60,000/-. During 1996-97, Crl.A.No.1225/2002 12 she had declared business income amounting to Rs.42,633/- and agricultural income amounting to Rs.60,000/-. Referring to Ext.P128 series, the learned standing counsel for the CBI submitted that the income tax return, basing upon which Ext.D22 was issued, was filed subsequent to the filing of the charge sheet. This argument was totally opposed by the learned senior counsel appearing for the appellant by stating that PW1 had in cross examination stated that copy of document like Ext.P128 series was not seen issued from his office. But going by Ext.P128 series, it is seen that there is acknowledgment by the income tax office, Alappuzha in Ext.P128 series. Adding to the above, the figures shown therein exactly tallies with the figures in Ext.D22. Ext.D22 didn't disclose the date of filing of the return. For the best reason known to the appellant, the copy of the income tax return submitted by his wife was not produced. In the above circumstance, I find that Ext.P128 series can be relied upon to come to a conclusion that the returns were submitted subsequent to the filing of the charge sheet. But that alone is not a reason to reject Ext.D22 series because PWs 73 and 74, the investigating officers, had admitted in cross examination that the wife of the appellant had some avocation. Crl.A.No.1225/2002 13 According to PW73, the wife of the appellant was reported to be running an institute for correspondence course on memory development and getting some income. According to PW74, he heard that the wife of the appellant was running a tailoring institute. However, there is nothing on record to show that the investigating officer had investigated the correctness of the statement that the wife of the appellant had been running a tailoring institute or an institute for correspondence course or the income thereon. If the wife of the appellant had been running such establishments, what was the income that she had been receiving was also not investigated. Before accusing the appellant, the investigating officer should have investigated about the income of the spouse of the appellant and the same should no way be avoided. In the above circumstance, I find that the plea of the appellant that his wife had been getting income from her business as well as agriculture cannot be thrown away as devoid of truth. Having due regard to the facts and circumstances, I find no good reason to reject Ext.D22 regarding the income of the wife of the appellant from her establishments. Giving reliance to Ext.D22, I find that it would be just and appropriate to add the income of the wife of the appellant from Crl.A.No.1225/2002 14 her business to the income of the appellant. Ext.D22 would show that the business income of the wife of the appellant during the year 93-94, 94-95 and 95-96 are Rs.33,000/-, Rs. 38,000/- and Rs.45,016/-. The income for the year 1996-97 declared is Rs.42,633/-. The check period being ending on 10.7.1996, the income during the year 1996-97 cannot be counted as such. If proportionate amount is calculated and added along with the income during the year 1992-93 to 1995-96, it would be come to Rs.1,27,866/- (33,000+38,000+45,016+11,850). That amount is to be added to the income of the appellant for the prosecution purpose.
11. Regarding the agricultural income stated in Ext.D22 such a request was made by the learned senior counsel appearing for the appellants. Going by Annexure-C statement, in column No.13 it is seen that towards the income from the agricultural landed properties in the name of the appellant and his wife a sum of Rs.1,20,841.97/- was calculated. As regards the landed properties in the name of the appellant it is seen that he had acquired the same in between 1992 and 1995. But the wife of the appellant had obtained 2.37 acres of coconut garden as gift from her father. The income from the landed properties Crl.A.No.1225/2002 15 were assessed by PWs 62 and 63, Agricultural officers, for which Exts.P77 and 78 reports were filed. The property in the name of the appellant was having 45 yielding coconut trees from where the annual income was calculated at Rs.5,312/-. In the property obtained the wife of the appellant by gift from her father, there were 114 yielding coconut trees from which the income was calculated at Rs.44,117/-. Going by the cross examination of PWs 62 and 63, I find that their evidence regarding the income calculated could not be shaken in cross examination. If Ext.P78 is given reliance, the wife of the appellant had been getting an annual agricultural income of Rs.44,117/-. Of course, that figure is a little bit exaggerated in Ext.D22. Since the appellant could not impeach the evidence of PW63, who had assessed the yield from the coconut trees in the property belonging to the wife of the appellant, I find little reason to come to a divergent conclusion that the wife of the appellant had been getting more income from the property or income as declared in the return submitted before the Income Tax department. It is also crucial to note that there is no case for DW6, who had proved Ext.D22, that the department had ascertained the correctness of the agricultural income declared in the return and certified in Crl.A.No.1225/2002 16 Ext.D22. Adding to the above, the returns were submitted subsequent to the filing of the final report. The possibility for exaggeration cannot be ruled out. The business income declared by the wife of the appellant was earlier accepted as there is no othergo because of the failure of the prosecution to investigate. But as regards the agricultural income, there is investigation and evidence was let in, the admissibility of which alone is in issue. Therefore, I find that Ext.D22 is not at all reliable to determine the agricultural income of the wife of the appellant. It is also crucial to note that there is no evidence on record as to when the wife of the appellant got the said property by gift from her father. It is true that the prosecution had got a duty to investigate regarding the date on which the wife of the appellant got the property from her father by gift. But it is crucial to note that the wife of the appellant had not mentioned about any agricultural income at any time before 1994-95. So it has to be presumed that the wife of the appellant had not obtained the said property before 1994-95. I had earlier mentioned that the investigating officer had accounted Rs.1,20,841.97/- towards the agricultural income. Of course, the split up figures are not at all furnished so as to ascertain as to what was the income from the Crl.A.No.1225/2002 17 agricultural lands in the possession of the appellant and his wife. I had carefully gone through the evidence of PWs 62 and 63 and Exts.P77 and P78. The evidence of PWs 62, 63 and the investigating officer regarding the agricultural income calculated with reference to Exts.P77 and 78 also could not be impeached in cross examination. In the above circumstance, I find that towards the agricultural income no further addition is warranted.
12. The appellant has got a case that on 18.7.1995 and 24.9.1996 his wife borrowed Rs.50,000/- and Rs.35,000/- respectively from DW5, who is none else other than the husband of the sister of the appellant's mother. Exts.D20 and D21 were produced as if the promissory notes executed by the wife of the appellant in favour of DW5. According to DW5, the amount covered by Exts.D20 and 21 were later discharged and promissory notes were returned to the wife of the appellant. But while the appellant and his wife returning from the house of DW5 after discharging the liability, they omitted to take back Exts.D20 and 21 and thus he happened to be in possession of Exts.D20 and 21. The trial court had considered the evidence of Crl.A.No.1225/2002 18 DW5 and disbelieved him. The finding of the trial court was much assailed by the learned senior counsel appearing for the appellant. Going by the evidence of DW5 and the judgment impugned, I find little merit in the argument. In cross examination, DW5 had stated that he had not received any interest from the wife of the appellant. Of course, having due regard to the relationship if DW5 had not demanded interest there is nothing unusual or to disbelieve him. But when it is suggested to DW5, whether he would not get interest if the amount is deposited in the bank he would depose that he didn't like to receive interest and he had no necessity for taking interest. If DW5 was a man of that nature, in the normal course, he would not have obtained such a promise in Exts.D20 and 21. On the same time, Ext.D20 and D21 would show that there is promise for payment of the interest. So also, if DW5 was in such terms with the appellant, he would not have even obtained the promissory notes. So the logic given by DW5 for not taking interest is not at all convincing. It is also pertinent to note that the discharge as per Exts.D20 and 21 was subsequent to the registration of the crime. The total amount covered by Exts.D20 and D21, as I mentioned earlier is Rs.85,000/-. If it was a Crl.A.No.1225/2002 19 genuine transaction, in the normal course, the discharge should have been through a cheque, that, too, when the document was retained by DW5 though with some lame excuse. It is also pertinent to note by statement 'B' that the appellant had acquired 177 > cents of property in between 1994 and 1996. It is during the period he had constructed the house. So also, the investments shown as item No.9 to 14; and acquisition of a motor cycle and a Maruthi car were made during the period. He was very badly in need of money and it is during that period the discharge was made in respect of Exts.D20 and 21 promissory notes. The story stated by the appellant is not at all convincing. In the above circumstance, I concur with the trial court and find that the evidence of DW5 is not at all reliable to come to a conclusion that there was such an income by the appellant.
13. Regarding the expenditure on the house, the trial court had arrived at a conclusion that the expenditure for construction of the house can be determined at Rs.6,17,893/- as against the estimate of the prosecution at Rs.6,84,600/-. According to the learned senior counsel appearing for the Crl.A.No.1225/2002 20 appellant, the assessment of the value by the investigating officer basing upon Exts.P71 and 72 reports given by PW58, the Assistant Engineer, is not at all reliable. According to the learned senior counsel, the prosecution should have given reliance to Ext.P4, which contains the estimated cost of the construction of the house at Rs.3,50,000/-. Ext.P4 is a file relating to an application for house building advance, whereby the appellant had obtained a house building advance of Rs.1,12,000/-. The application for house building advance is accompanied by a plan and estimate of the building proposed to be constructed. The plan accompanying the application would show that the appellant proposed to construct a double storied building having a plinth area of 141 m2 in the ground floor and 46 m2 In the first floor. The cost of construction estimated was Rs.3,50,000/-. In fact, that was accepted by the department and loan was granted. The appellant had produced Ext.D24 series bills and vouchers regarding payment of labour charges etc. to DW10, a consultant cum contractor and supervisor. As per his evidence, the cost of the house would come to Rs.4,00,099/- including the compound wall. DW3 was examined by the appellant to prove that he had verified the correctness of the Crl.A.No.1225/2002 21 estimate submitted along with the application for house building advance. The appellant had also produced Exts.D8 and D8(a) circulars regarding the determination of the standard rent. As per Ext.D8 dated 5.3.1993, the construction cost of a single storied building would be Rs.1,851/- per m2. Mosaic flooring should be separately calculated at Rs.108 per m2. As per Ext.D8
(a), the cost of the construction of a single storied building would be Rs.2406/- per m2. Mosaic flooring was separately estimated at an extra rate of Rs.140 per m2. The evidence on record would show that the appellant had not constructed the building as per the plan appended along with his application for house building advance. Whereas a single storied building with a plinth area of 155.47 m2 was constructed. It is that building which was valued by PW58. PW58 had valued the building as per the CPWD rate and as per the Kerala PWD rates. The cross examination of PW58 would show that the valuation as per CPWD rate was made with reference to the rate prevailing in New Delhi. He valued the building as per the Kerala PWD rate at the rate prevailing in 1992 and added 50% towards the excess. Cross examination of PW58 would show that in making such addition he had relied upon the information furnished by the Executive Engineer Crl.A.No.1225/2002 22 working in PWD at Kollam. As rightly pointed by the learned senior counsel appearing for the appellant, neither the CPWD rate nor the Kerala PWD rate was produced. So also, the opinion given by the Executive Engineer was not produced. Neither the Executive Engineer was examined. Therefore, according to the learned senior counsel appearing for the appellant, the cost of construction of the house should be calculated with reference to Ext.D8 and D8(a). I find some merit in the submission made by the learned counsel appearing for the appellant. There is no evidence to justify addition of 50% over the PWD rate. The non examination of the Executive Engineer who suggested for addition of 50% excess over PWD rate is very fatal to the prosecution. Therefore, I find that the valuation made by PW58 is not admissible in evidence. However, there is no evidence on record to come to a conclusion that the rate mentioned in Exts.D8 or D8(a) is the actual cost of construction Even as per Exts.D8 and D8(a) the value of the marbles is to be added separately. Taking into account of that aspect and the evidence of PW 58 and having due regard to Ext.D8 and D8(a), I find that it would be just and appropriate to calculate the cost of construction at Rs.3000 per m2. It is a reasonable rate. If Crl.A.No.1225/2002 23 calculated so, it would come to Rs.4,66,410/-. Being so, I find that a sum of Rs.1,51,483/- (6,17,893-4,66,410) is to be deducted out of expenditure for the construction of the house. The appellant has got a case that the valuation made by DW10 and Ext.D24 series includes the cost of construction of the compound wall and that the compound wall was constructed subsequent to the check period. In the light of the reasons stated earlier and having calculated the value of the house on plinth area basis that argument requires no consideration.
14. Towards the domestic expenses, as per statement D, in Column No.7, a sum of Rs.1,24,039/- was calculated during the check period. The expenditure was calculated by the investigating officer on the basis of Ext.P30, a report furnished by PW 24, who is the Additional Director of Directorate of Economics and Statistics. Regarding the quantum, though PW24 was subjected to searching cross examination, nothing was revealed to reject his evidence as such. But in cross examination, he had stated that the domestic expenditure in item No.7 would include newspapers, rent and lighting expenses. Canvassing my attention to item Nos.6,12 and 14 of statement D, the learned Crl.A.No.1225/2002 24 senior counsel appearing for the appellant would submit that the expenditure as per item Nos. 6, 12 and 14 are towards the newspaper and periodicals, rent and electricity charges. The amount calculated are Rs.3,460/-, 5,000/- and 4,543/- respectively. Total amount would come to Rs.13,003 In the light of the admission in cross examination of PW24, I find that the said amount is to be deducted out of the expenditure incurred as per statement 'D'. The evidence of PW24 would show that the domestic expenses was calculated as if the family consists of average six members. It is not disputed that the family of the appellant consists of his wife and two kids only. Though other paraphernalia to maintain a family cannot be reduced, the cost of the essential commodities would be lesser when the number of members in the family is lesser. Since the family of the appellant consists of only the wife and two kids, proportionate deduction is to be made from the average expenditure of a family consisting six members. In the above circumstance, I find that it would be appropriate to deduct 1/3rd, that is, Rs.41,400/- out of the domestic expenditure.
Crl.A.No.1225/2002 25
15. The appellant has got a case that the property purchased by virtue of Ext.P12 values only Rs.9,600/-. The prosecution had calculated the value of the land at Rs.58,500/-. Ext.P12 pertains to 32.5 cents. The value shown in the document is only Rs.9,600/-. The prosecution would rely upon the evidence of PWs14 and 15. PW15 is the vendor of the property and PW14 is her father. PW15 is not aware as to what was the value of the property. However, she would depose that her father, who was examined as PW14, had sold the property and provided building materials worth Rs.65,000/- with the sale consideration. PW14 had deposed that the property as per Ext.P12 was sold at the rate of Rs.2,000/- per cent, that is, Rs.65,000/- in total. Though in Ext.P12 the total consideration is shown as Rs.9600/-, no material was disclosed in cross examination of PW14 to disbelieve him. In addition to the evidence of PW14, to determine the land value, the report of the Tahsildar, who was examined as PW42, was also relied upon by the prosecution. PW42 was also subjected to searching cross examination. But no material was disclosed to disbelieve him also. In the above circumstances, I find little reason to reject the valuation made by PW42.
Crl.A.No.1225/2002 26
16. The learned counsel for the appellant submitted that regarding the other items of the property also, the prosecution had a case that there is undervaluation and the property was valued by the Tahsildar and that value was calculated by the prosecution as the value of the property shown in the document. But the trial court rejected the case of the prosecution regarding the undervaluation in respect of the other items of the property. Therefore, according to the appellant, the valuation in respect of this item also should have been rejected. Going by the impugned judgment, it is seen that it is in the light of the evidence of PWs14 and 15 the case of the prosecution regarding the value in respect of the property covered by Ext.P12 was accepted. I find no reason to arrive at a divergent finding in the absence of good reasons to disbelieve PWs 14 and 15. So the argument on that ground is devoid of any merits.
17. According to the prosecution, the appellant had purchased a 1994 model Maruthi car bearing Registration No. KL-2B/4242 from PW10 on the strength of Ext.P9 agreement for a sum of Rs.2,35,000/-. It is a pucca sale agreement. The case of the appellant is that Ext.P9 agreement was not at all acted upon Crl.A.No.1225/2002 27 and it was executed to see whether the appellant could avail some financial facilities and on finding that he could not succeed in availing finance on the basis of Ext.P9, no purchase was made and that the appellant didn't get the ownership of the car. PW10 didn't support the prosecution case regarding the purchase of the car. He would support the explanation given by the appellant. It was also submitted that the vehicle was transferred to a third party subsequent to the filing of the charge sheet. According to the learned counsel for the appellant, it is an indication that the transfer as per Ext.P9 agreement had not taken place. But it is crucial to note that at the time when the investigating officer searched the house of the appellant the car was parked at the car porch of the appellant. The Registration Certificate including the documents relating to the payment of the road tax and insurance were also seized from the possession of the appellant. It is in the above circumstance, the trial court rejected the defence version and had given reliance to Ext.P9 to come to a conclusion that the appellant had spent a sum of Rs.2,35,000/- as evidenced by Ext.P9 agreement for the purchase of the car. The appellant has also got a case that the Maruthi car is an 800 CC vehicle and as on the date, a new vehicle valued Crl.A.No.1225/2002 28 only Rs.1,90,000/-. So, according to the learned counsel, the value shown in Ex.P9 is an exorbitant amount. Therefore, on that reason also it is to be found that Ex.P9 agreement was not intended to be acted upon. Regarding the value of the new vehicle, either in the year 1994 when the car was purchased by PW10 or on the date of Ex.P9, absolutely there is no evidence. So, there is little material to come to a conclusion that the value of the new vehicle as on that date was much lesser or that an exaggerated value was shown in Ext.P9. In the light of the fact that the vehicle was parked in the porch of the house of the appellant and he was in possession of Ext.P9 along with the road tax receipt and insurance particulars , I am persuaded to arrive at a conclusion that the finding of the trial court on that aspect is not at all erroneous or contrary to the evidence on record. It was incidentally pointed out that in evidence it is revealed that the vehicle had hire purchase agreement and in the normal course the appellant would not have purchased the vehicle for the value shown in Ext.P9. Regarding the hypothecation or finance if any availed on the basis of the registration certificate, absolutely there is no evidence on record. So that is not at all a reason to arrive at a conclusion that the valuation shown in Crl.A.No.1225/2002 29 Ext.P9 is not correct.
18. The appellant has got a case that the prosecution had accounted Rs.15000 towards deposit as per Ext.P63 in Unit Trust of India in the name of the sister's daughter. According to the learned counsel for the appellant, the deposit was made by the sister of the appellant and that the prosecution was erred in calculating that amount towards the expenditure made by the appellant. Going by Ext.P63, it is seen that the document states that the appellant had donated the amount. The appellant signed the application form as a donee. He had retained the certificate with him. No material was produced to show that infact the deposit was made by the mother of the donee. If the mother was the donor, she should have retained the certificate. The possession of the certificate by the appellant coupled with the statement in Ext.P63 that the appellant is the donor persuades me to conclude that the appellant was the donor. In the above circumstance, the court below was right in rejecting that contention.
Crl.A.No.1225/2002 30
19. To sum up, I find that towards the income account, a sum of Rs.31,003/- towards the bonus, Rs.28,000/- towards GPF advance and Rs.1,280/- towards the festival advance are to be added. Towards the income of the wife of the appellant, a sum of Rs.1,27,866/- is to be added. In total, a sum of Rs.1,88,149/- is to be added towards the income of the appellant and his wife. Towards the expenditure expenses calculated by the prosecution, Rs.13,003/- is to be deducted towards item Nos.6,12 and 14 in statement D being already covered under item No.7. Since the domestic expenses was calculated for a family consisting of six numbers and the family of the appellant consists of his wife and two small children, a sum of Rs.41,400/- is to be deducted out of the domestic expenditure of Rs.1,24,039/-. Towards the cost of construction of the house, from the amount determined by the trial court, a sum of Rs.1,51,483/- is to be deducted. If it is done so, it can be seen that the value of the assets of the appellant acquired during the check period disproportionate to his known source of income is only Rs.41,557/-. The total assets valued by the investigating officer being Rs.14,75,173/- and the disproportionate asset which the appellant could not explain being only Rs.41557/-, I find that the Crl.A.No.1225/2002 31 benefit of doubt can be given to the appellant. I don't omit to note that as per the statement B, during the year 92-94 the appellant had acquired 167.75 cents of property described as item Nos. 2,3,4,5,6,7 and 8, he had made investments of Rs.86,000/- described as item Nos.9,10,11,12,12,14 and 15, and also had acquired a Maruthi car worth Rs.2,35,000/-. Prima facie, there is good reason to suspect the appellant. But, suspicion, however strong, may not be a substitute for the evidence. According to the learned standing counsel for the CBI, the appellant had not at all applied for sanction for acquisition of the immovable properties and that would also tantamount to misconduct. Regarding the non obtaining of sanction for purchase of property there is no specific allegation and no evidence to that effect. The evidence of the investigating officer would show that he had not investigated in that regard. Therefore, it is not justified to conclude against the appellant that he had violated the conduct rules. In the above circumstance, I find that the appellant is entitled to the benefit of reasonable doubt and is entitled to an order of acquittal. Crl.A.No.1225/2002 32
In the result, the appeal is allowed. While giving the benefit of reasonable doubt, the conviction and sentence under challenge are set aside and the appellant would stand acquitted. The fine amount, if any, realised shall be refunded.
(P.S.GOPINATHAN, JUDGE) mns/ps