Karnataka High Court
Sri G. T. Gowda vs The State Of Karnataka on 18 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18 T H DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.275 OF 2011
BETWEEN:
Sri G.T.Gowd a,
S/o Jogi Gowd a,
Aged about 70 years,
R/at No.741, Bannimantap a
'B' Layout, 1 s t Main Road,
3 r d Cross, Mysuru-570015.
...Appellant
(By Sri C.R.Gop alaswamy, Senior Advocate
for Sri G.Bhargav, Ad vocate)
AND:
The State of Karnataka,
By Lokayukta Police, Mysuru,
Represented by State Public Prosecutor,
High Court Build ing, Bengaluru.
...Respondent
(By Sri B.S.Prasad, Advocate)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the order dated
23.02.2011 passed by the III Additional District
Judge, Mysuru in Spl.C.No.110/2001 convicting the
app ellant/accused for the offence p/u/s 13(2) read
with section 13(1)(e) of Prevention of Corrup tion Act
1988 and etc.
This Criminal Appeal having been heard &
reserved on 29.09.2022, coming on for
pronouncement this d ay, the Court pronounced the
following:
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JUDGMENT
The accused has questioned the correctness of the judgment dated 23.02.2011 in Sp l. Case No.110/2001 on the file of III Addl. District and Sessions Judg e, Mysuru convicting him for the offence und er Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act ('PC Act' for short).
2. The events that led to p rosecution of the accused are as below:
The accused was working as Secretary of Mand al Panchayat, Byrap ura, T.Narasipura Taluk, Mysuru when the raid was conducted on his house and office on 29.12.1998. He joined the service of the Government as Grama Sevak on 28.08.1964 and worked in various cap acities till his sup erannuation. The FIR was registered with the alleg ation that the accused had spent money and acquired assets to the extent of Rs.6,48,085.13 over and above his known source of income of Rs.14,65,528.75. Ultimately after :: 3 ::
investig ation, the investig ating officer ('IO' for short) came up with the following figures.
Total income of the
Rs.24,76,890.09
accused from all known
sources
Value of movab le and
Rs.23,03,272.60
immovables
Total exp end iture during
Rs.13,64,760.80
check p eriod
Total of assets and
exp enditure
Rs.11,91,143.31
disp roportionate to his
known source of income
3. The prosecution examined 14 witnesses and relied upon the documents as per Exs.P1 to P51. The accused also led defence evid ence b y examining 17 witnesses and p roducing 14 documents marked Exs.D1 to D14.
4. After assessing the evid ence, the trial court arrived at a conclusion that Rs.10,94,580/- was the total value of the assets found to be disp roportionate to the known source of income of the accused. Giving a margin of 10%, it was held that the value of the :: 4 ::
disp roportionate assets could be taken as Rs.9,85,122/-. To come to this conclusion the trial court has accounted certain income which the IO left out and given deduction to certain amount which the IO had d isallowed.
5. I have heard the arguments of Sri C.R.Gop alaswamy, learned senior counsel for the app ellant and Sri B.S.Prasad, learned counsel for the respondent-Lokayukta.
6. Sri Gop alaswamy while arguing mainly attacked the calculation mad e by the IO. He submitted the following points.
i. The son of the accused , namely, Balaraju was a Civil Engineer. He constructed a house on site No.741 at Bannimantap a, Mysuru. As p er prosecution, Rs.7,41,983/- was the cost of construction. Because Balaraju supervised the construction work himself, 10% of the cost of construction should have b een deducted and thereby the total cost of construction should :: 5 ::
have been taken as Rs.6,67,785/- and Rs.74,198/- being the 10% amount should have been added to the income of the accused. ii. Balaraju obtained over-draft facility from the Bank as evid enced by Ex.P37 and P38. As on 28.12.1998, a sum of Rs.89,705.06 was due to be repaid to the Bank. The IO did not treat this sum a liability and credit it to the income of the accused.
iii. The second son of the accused , namely, Dayanand was running a taxi. He purchased a car by borrowing a sum of Rs.1,50,000/- from State Bank of India, Mysuru and earned income of Rs.24,000/- from taxi. Though the IO admitted the purchase of taxi, income of Rs.24,000/- was not consid ered.
iv. Dayanand a purchased land ed property in Sy.No.88/1 of Hosahalli villag e for a sum of Rs.61,000/-. Without any reason, the IO assessed the purchase value as Rs.1,05,000/-.
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Therefore Rs.44,000/- was shown as excess exp enditure.
v. Accused had eucalyptus plantation in his land bearing Sy.No.82/2 measuring 5 acres 20 guntas. There were nearly 25000 to 30000 eucalyptus trees. The accused sold the trees for Rs.4,46,120/-, but the IO considered the income by sale of trees as Rs.1,79,500/-. The accused had also sold the bark and the stems of the trees and received a sum of Rs.
61,000/-. Difference of Rs.1,86,600/- was unjustifiab ly left out from the income of the accused.
vi. In Ex.P27 and P28, it is clearly mentioned that the house b elonging to the accused consisted of ground , first and second floors. In the mahazar itself it is clearly written that the foreign students were tenants during check period . During preliminary inq uiry, the IO consid ered the rental income as Rs.2,00,000/- but did not include the same when he filed the :: 7 ::
final report. Therefore Rs.2,00,000/- should be taken as the income of the accused. vii. The son of the accused, namely, N.T.Balaraju had obtained loan from Bank of India and as on 23.12.1998, he was due to rep ay Rs.49,389/-. Though documents were produced before the IO, it was not consid ered and this sum should b e add ed to the income of the accused.
viii. As per Ex.D10, Balaraju sold a property for a sum of Rs.45,000/- and this amount was not accounted .
ix. The son of the accused namely, N.T.Dayanand a earned an amount of Rs.41,739/- by sale of veg etables at Coimb atore market. Though the receipts are availab le, this amount was left out only for the reason that in one of the receipts the name was wrongly spelt as N.T.Dayanand an.
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x. In relation to the b ank account of the accused
at State Bank of Mysuru, a sum of
Rs.1,00,000/- was taken as asset, but
Rs.18,498/- being the interest accrued on that sum was not considered as income. In fact, the IO admitted about the accrued interest in the cross examination.
xi. Ex.P49 and P50 are the two RD accounts opened in the post office for Rs.48,000/- each. These deposits earned a total interest of Rs.15,000/-. The IO took the deposits as assets, but left out to show the interest as income.
xii. Ex.P15 shows a deposit of Rs.1,55,861.00 in a chit comp any called Vijaya Shilpi Chit. Divid end amount of Rs.40,000/- on this deposit was not treated as income.
xiii. The IO has not prop erly accounted the value of jewellery of the wife and the d aughter-in-law of the accused . They were customary gifts :: 9 ::
given at the time of marriag e and in this reg ard a sum of Rs.1,19,859.00 should have been held as income.
7. Therefore it was the argument of Sri Gopalaswamy that if the IO had properly investig ated, it was possib le for him to come to conclusion that the accused had not amassed wealth disproportionate to known source of income. Though the trial court has given certain credits and allowed deductions, yet its decision that there was a difference of Rs.9,85,122/-
is incorrect. There is no p roper appreciation of evidence and therefore the app eal deserves to be allowed. He has placed reliance on two decisions of the Sup reme Court, namely, ASHOK TSHER ING BHUTIA vs STATE OF SIKKIM [2011 AIR SCW 1505] and VASANT RAO GUHE vs STATE OF MADHYA PRADESH [AIR 2017 SC 3713].
8. Sri B.S.Prasad arg ued that the impugned judgment very clearly shows that the trial court assessed the evidence thoroug hly and there are no grounds to interfere with the well reasoned judgment.
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He submitted further that the entire plea set up by the accused lies within his special knowledge and therefore he should have p roved the pleas taken by him in accord ance with section 106 of Evidence Act. Every p aise has been accounted. The IO d id not have vengeance ag ainst the accused to file a false charge sheet. After the raid, the accused was asked to file a sched ule of his income and assets. Ex.P27 and P28 are the sched ules filed by him. With reference to sched ules, investig ation was conducted in d etail and the IO considered the explanations supported by documents while computing the final figures. With resp ect to sale of eucalyptus trees, the evidence of Tahsildar is that there were only 2500 trees and there was no evid ence for 25000 to 30000 being availab le for sale. According to the accused, the eucalyptus trees were grown in the land bearing Sy.No.88/1, but the RTC produced was with respect to land in Sy.No.88/2. The sale of eucalyptus trees to Harihar Polyfib ers alone is accounted. There is no proof for selling the b ark and the stems of the trees. There is :: 11 ::
no p roof for selling veg etables by the son of the accused , namely, Dayanand a. The accused produced Xerox cop ies of the receipts, therefore they were not consid ered. In the receip ts the name is mentioned as Dayanand an, which does not pertain to son of the accused . There is no proof for running of a taxi by the son of the accused and therefore a sum of Rs.24,000/- was rightly disallowed. In this view there is no infirmity in the case of p rosecution. Hence the app eal d eserves to b e dismissed. He placed reliance on the judgment of the Sup reme Court in the case of STATE THROUGH DEPUTY SUPER INTENDENT OF POLICE V. R.SOUNDIRARASU ETC.
[CRL.A.NO.1452-1453/2022].
9. I have considered the points of arguments and perused the entire evid ence. The first asp ect to be noted here is that the entire income of the family must be computed. The prosecution case itself is that the family of the accused consisted of himself, wife, his two grown up sons, a d aughter and a d aughter-in- law. The wife possessed agricultural lands in her :: 12 ::
name. The sons had independ ent income and the daughter-in-law invested money in a chit fund comp any. Therefore income of everyone in the family must be accounted.
10. The trial court has held that the method adopted by the IO to compute the income, expenditure and investment is correct except in respect of two or three items. The trial court has noted the following discrep ancies in the computation mad e by the investig ating officer and add ed certain sums to the income of the family.
10.1 The IO left out the dividend s earned on the investments mad e by the sons of the accused in chit fund comp anies. It is held by the trial court that the sons of the accused received divid end of Rs.3,575/- each and Rs.2,600/-. The total of these divid end s is Rs.9,725/- (correct sum is Rs.9,750/-). The trial court has add ed this amount to the income of the accused . Consid ering the evidence of PW.5 the trial court has held that the amount d eposited with Mandovi Motors for purchase of a car earned interest :: 13 ::
of Rs.1,347/-. The investig ating officer did not consid er this sum and the trial court has considered this sum and added it to the income of the accused . Therefore it is the conclusion of the trial court that if the total of these two sums Rs.9,725/- and Rs.1,347/- i.e., Rs.11,062/- (correct sum is Rs.11,072/-) is add ed to the income, the entire income of the accused during check period would work out at Rs.24,87,952/- as against Rs.24,76,890/- computed by the investig ating officer.
10.2 In order to arrive at above conclusion, the trial court has found that the investig ating officer has correctly deducted 50% from the income of N.T.Balaraju towards his personal expenses and his contribution to the family was Rs.1,40,000/-. In the same way the trial court has found deduction of 50% from the income of Dayanand and his contribution of Rs.1,00,000/- to the family to b e correct. In regard to contention of the accused that Rs.1,86,600/- should not have been d isallowed, it is held that the b arks and the branches of the eucalyptus trees are not used for :: 14 ::
any purpose and therefore the accused could not have sold them. Even there is no evid ence for the sale of barks and the b ranches and therefore Rs.1,86,600/- cannot b e taken as income of the accused.
10.3 The trial court is of the opinion that the IO has correctly disallowed to consid er Rs.40,000/- being the income from horticulture and Rs.1,59,903/- from the agriculture. The claim of the accused to consider these two sums as his income has not been entertained.
10.4 In reg ard to the rental income, it is held that there is no proof that the accused received Rs.2,00,000/- as rental income and therefore this is also not considered. Further the trial court has found that the IO has rightly computed the income of the son and the d aughter-in-law of the accused by way of interest on the fixed d eposit made in the post office and has rig htly disallowed to consider the overdraft amount and Rs.24,000/- said to have been earned by the second son by running a taxi. The trial court has held that by the time the raid was conducted, the :: 15 ::
overd raft account was closed and that there is no proof for running a taxi, and his second son had other occup ation.
10.5 So far as the expenditures are concerned , the trial court has not accepted the contention of the accused that he was not using LPG for cooking purpose and that he was actually using fire wood. It is observed that the resid ence of the accused is situated in a posh locality in Mysuru and it is impossible to expect that he would not have had LPG connection and thereb y Rs.10,186/- is held to be the exp enditure to b uy LPG g as cylinders.
11. On behalf of the prosecution, PW11 is the main witness. He conducted investig ation and filed charg e sheet. His evidence d iscloses the computation of income, expenditure and assets of the accused.
12. The accused examined 17 witnesses including himself. DW1 is the son of the accused who has given evid ence that after completing Diploma course in Civil Engineering in the year 1980, he :: 16 ::
worked as Assistant Engineer in an estab lishment called 'H.S.Sheshagiri and Associates' till the year 1993 and received total remuneration of Rs.40,000/-. He has also stated that he undertook contract of construction of houses of some people and earned commission of 8 to 10%. He also supervised the construction work and some miscellaneous work and earned Rs.40,000/-. In the year 1991-1992 first and second floors of their house was constructed under his sup ervision. He was also doing business in textiles and borrowed money from Bank of Barod a. He has stated that he used to g ive earnings to his father and mother.
13. DW2 is another son of the accused and his evidence is that he was an ag ent for LIC and for Small Scale Savings and earned commission of Rs.4,33,000/-. He was also running a taxi and earned Rs.24,000/-. He purchased a car for the purpose of taxi by borrowing money from State Bank of Mysuru.
His further evid ence is that he purchased 5 acres of land from Jayamma for a sum of Rs.61,000/-. He was :: 17 ::
doing agriculture. There were 25,000 to 30,000 eucalyptus trees in 5 acres of land. In the year 1990- 1991, the trees were sold to Harihar Polyfiber Comp any and received Rs.1,61,000/-. Then he sold the b arks and branches of the trees to one Marigowda for Rs.26,000/- and one Nag araj for Rs.25,000/-. He also received another sum of Rs.34,000/- by selling the b ranches and the b ark in the market. In the year 1996, he received another yield of eucalyptus and sold the trees for Rs.1,65,000/- and the b arks and the branches for Rs.30,000/-.
14. DW3 has given evid ence that in the year 1991 he purchased the b ark and the branches of eucalyptus trees from the accused for Rs.25,600/-.
He p urchased the same for using them as fuel in his jaggery manufacturing factory (Ale Mane).
15. DW4 is the father-in-law of DW1. His evidence is that at the time of marriag e of his daughter with DW1 he gave about 300 g rams of gold to his d aughter and son-in-law. He has also stated that he g ave a Hero Hond a motorcycle and a b racelet :: 18 ::
to his son-in-law and 5 or 6 Kancheepuram sarees to his d aughter in addition to other items like cot and bedding . In the cross-examination he was suggested that he gifted only 81 grams of gold jewellery to his daughter and his answer was that he would not rememb er.
16. DW5 has stated that in the year 1993 he bought the b arks and the small branches and dried leaves of eucalyptus trees for Rs.26,000/- for using them as fuel in his jaggery manufacturing unit. DW6 has also stated that in the year 1996 he bought the branches and barks of the eucalyptus trees for Rs.35,000/-.
17. DW7 has stated that Balaraju, the son of the accused, was eng aged by him for attending some civil works like construction of a sump, a canopy, laying mosaic flooring, etc., and for that purpose he paid Rs.9,625/- in the month of Feb ruary 1998. DW8 has g iven evid ence that Balaraju attend ed some rep air work in the b athroom of his house and got done a :: 19 ::
wardrob e. In this connection he paid him Rs.7,500/- in the year 1994-95.
18. DW9 is Range Forest Officer. He has g iven evidence with regard to assessing the value of the eucalyptus timb er b ased on government notifications. In the cross-examination he has stated that while planting the eucalyp tus sap ling s in the lands, if distance of one meter from one plant to another plant is maintained , there will be good development of the trees in size and heig ht.
19. DW10 was the manager of Vidyaranyap ura Branch of State Bank of Mysuru. He stated that when he was working as manag er, Balaraju had an overd raft account in his b ranch, the Lokayukta police wrote a letter as per Ex.P36 requesting to p rovide them the extract of the overd raft account and accordingly he replied as p er Ex.P37. Ex.P38 is the extract of the O.D account in which there was a b alance of Rs.89,705.60 to be rep aid to bank. DW11 was the manag er of Gand hi Square Branch of Bank of Baroda, Mysuru and he gave evidence that the wife of the :: 20 ::
accused namely Padma borrowed dairy loan and she repaid the same in the year 1991 itself. She also borrowed another loan for running provision stores and this loan was also cleared in the year 1994.
20. DW12 was working as Manager in the main branch of Bank of India. His evidence is that in the year 1999, Lokayukta police asked him to provid e information in reg ard to the loan accounts of N.T.Balaraju and accordingly he provided the same. He stated further that as on 23.12.1998 Balaraju was due in a sum of Rs.49,389.12 to the b ank.
21. DW13 was working as postal inspector in the office of Postal Sup erintendent, Mysuru. She stated that Balaraju and his wife Anup ama had small savings account in the post office. The accounts were opened on 24.10.1997 and closed on 14.12.2004. Ex.P49 and P50 are the documents in this reg ard. She stated that a sum of Rs.48,000/- each was deposited in both the accounts, and on those deposits, interest of Rs.520/- on each account was paid for a period of 14 months.
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22. DW14 has given evid ence that when he was constructing a house at Kuvempunag ara, Mysuru, he had appointed Balajraju for supervising the construction and in that connection he p aid him Rs.10,000/-. DW16 has also stated that he engag ed Balaraju as a contractor for constructing a house at Vijayanag ara, II Stag e, Mysuru, in the year 1994 and in that connection he mad e p ayment of Rs.2,60,000/-
to him.
23. DW15 has spoken about destruction of documents in the bank where he was working as Assistant Manager.
24. DW17 is the accused himself and has given evidence with regard to various sources of income he had during the check p eriod .
25. Now if the entire evid ence is analysed, it can very well b e said that the trial court has not applied its mind properly to the evid ence adduced by PW11, the investig ating officer, and the evid ence led by defence. PW1 has g iven clear admissions that he :: 22 ::
omitted to account certain sums of money to the income of the accused . For instance, he did not take into account Rs.24,000/- towards income from running of taxi by N.T.Dayanand, the son of the accused, as he did not produce document in the reg ard . But in the examination chief itself, PW11 stated the car had run 9240 kms, and out of 9240 kms, Dayanand ran the car for 1240 kms for his personal use. That means the car was used as a taxi for 9000 kms. The very purpose of purchase of car was to run it as a taxi. The IO should have taken Rs.24,000/- as income from taxi as the sum appears to b e reasonable income that one could expect. When the evid ence discloses that he accounted a certain sum of money toward s expenses and assets without any documentary support, it is strang e that he left out Rs.24,000/-. The trial court has failed to notice this aspect and it too had not accounted Rs.24,000/- towards income.
26. Then the trial court has accep ted the evidence of IO that the income from sale of eucalyptus was Rs.1,79,500/-. But accord ing to accused , the :: 23 ::
eucalyptus trees were sold two times, i.e., firstly in the year 1991 and secondly in the year 1996. He also stated that he sold the b arks and small branches, which were second ary p roduce. He stated that he sold these items for Rs.26,000/- first time and Rs.35,000/- second time, and DW5 and DW6 have g iven evid ence in this reg ard . These sums were not consid ered b y IO because documents were not p roduced and that the evidence of DW5 and DW6 ap peared to be false. Assuming that evidence of DW5 and DW6 is false, it is a ground reality that whenever trees are sold , the second ary p roduce like b arks and small branches are also available for sale as they are used in brick kilns and jaggery p rod uction units. These are all emp irical aspects for which the courts cannot expect documents to be p roduced. In this view, Rs.61,000/- (26,000+35,000) can b e accounted towards income. Likewise, the evid ence of DW2 discloses that the eucalyptus trees were sold for the second time in the year 1996 for Rs.1,65,000/- to one Prithviraj and received Rs.1,00,000/- through demand d rafts and :: 24 ::
Rs.65,000/- by cash. Two demand drafts for Rs.50,000/- each are availab le in Ex.P28. At least Rs.1,00,000/- could have b een computed towards income.
27. From sale of vegetab les, N.T.Dayanand received Rs.41,739/-. PW4 admitted the sale but did not consider this income, as in one bill, the name is written as N.T.Dayanand an. The bills show that veg etab les were sold at a place in Tamilnad u where usually the names of males end with the letter 'n' and that's how the name of N.T.Dayanand a was written as N.T.Dayanand an. The reason thus g iven by PW11 is wholly frivolous. Therefore Rs.41,739/- should be accounted towards income.
28. PW11 clearly admitted in the cross examination that one Boregowda bought a site bearing katha No.93 for Rs.32,000/- and this sum oug ht to have been taken towards income, but not taken. Therefore Rs.32,000/- should b e added to income. Another admission of PW11 is that a sum of Rs.18,498/- on a d eposit of Rs.1,00,000/- was not :: 25 ::
consid ered as income. He has stated that since interest amount was transferred to OD account, it was not consid ered. This computation appears to be wrong because once interest accrues, it becomes income and hence Rs.18,495/- should have b een taken as income.
29. The evid ence of PW3 shows that the total income from horticultural yields, such as coconut, tamarind and arecanut is Rs.1,96,861/-. This amount is after deducting the exp enses. But in the charg e sheet a sum of Rs.1,55,861.12 is shown as income from g arden yield. PW11 d oes not admit the calculation mad e by PW3 to b e correct. He cannot take a contrary stand , as PW3 is prosecution witness. Difference of Rs.1,96,861/- and Rs. 1,55,861.12 is Rs.40,000/. This amount must be added to income.
30. Another infirmity that can be noticed from the evid ence of PW11 is that he did not take the dividend earned on the investment made by N.T.Balaraju in chit fund s. PW11 has ad mitted that he did not take the dividends as income, and what he did :: 26 ::
was to compute the entire investment plus accrued dividend towards assets, which was wrong. Investment in chits should be consid ered as asset and dividend as income. Therefore a sum of Rs.32,098/- being the divid end should be accounted towards income, and corresponding to it, in the total value of asset, Rs.32,098/- should be ded ucted.
31. Another anomaly found in the computation mad e by PW11 is that he did not consider a certain sum of money that N.T.Balaraju received by attending to some civil works of some persons namely, Dr.Jag annath, Chaluvanarayan, Ganesh Shastri and a few others. The income received from this source was known to PW11 as he has ad mitted in the cross- examination that he examined some persons in this regard, and could not examine a few because they were not available. Accused examined DW7, DW8 and DW14 in this connection, PW11 should have taken the monies that they paid towards income. As it is found that the evidence g iven by DW7, DW8 and DW14 has not been discred ited , a total sum of Rs.27,125/- can :: 27 ::
be held to have been received by Balaraju, and if a sum of Rs.5,000/- is reasonably deducted towards conveyance charges, the b alance of Rs.22,125/- can be includ ed und er income column.
32. It is very much evid ent from the evidence of PW11 that he did not take into account the rental income. He came to know during investigation that the accused had let out the first and second floors of his house. Accused claimed Rs.4,30,000/- as rental income, but according to PW11, Rs.2,53,000/- was the rental income. It app ears that even that sum of Rs.2,53,000/- was not considered as no documents were mad e availab le by accused. The learned counsel, Sri C.R.Gopalaswamy submitted that at least Rs.2,00,000/- could have b een taken into account. I find force in this arg ument. It is not in dispute that the accused and his family were living in ground floor. PW11 also came to know that the two other floors had been let out. The house is situated in a posh locality of Mysore, and obviously there would be d emand for rental houses. This is a matter of judicial notice and :: 28 ::
even without any document a notional amount can be taken as rental income. Therefore as arg ued by Sri Gopalaswamy, Rs.2,00,000/- can be held as rental income as ag ainst Rs.4,30,000/- claimed by accused in the schedule filed by him.
33. Then there are two more amounts which PW11 did not consider, and the trial court also failed to notice it. The evid ence given by DW10 shows that N.T.Balaraju had an overd raft account at SBM, Vid yaranyapura Branch, Mysuru. There was a d ebt of Rs.89,705/- as on 28.12.1998. The cross-examination was that the limit O.D. facility was Rs.85,000/-, and except this suggestion, the evid ence of DW.10 about Rs.89,705/- drawn by Balaraju from his O.D. account was not assailed . Obviously, Rs.89,705/- should have been taken as income.
34. Then the evid ence of DW.13 shows that Balaraju and his wife, Anupama had a joint savings account and two recurring dep osit accounts which were opened on 24.10.1997 and closed on 14.12.2004 as per Ex.P.49 and Ex.P.50. Each account earned :: 29 ::
interest of Rs.520/- per month for fourteen months. That means Rs.7,280/- (520 x 14) was the total interest accrued in respect of one account, and in connection with two accounts, the total interest would come to Rs.14,560/- which should be considered as income. The evidence of DW.13 has not b een assailed in the cross examination. Therefore if the amounts as discussed above are added to the figure Rs.24,87,952.09, being the total income as calculated by the trial court, the total income of the accused from all known sources works out at Rs.31,56,397/-.
35. Examined whether the I.O. has correctly computed the assets and income of the accused , it can be pointed out that certain sums which oug ht to have been deducted from assets, have not b een ded ucted, and likewise, a mistake app ears to have crept in while computing the expenditure. Even the trial court has failed to notice.
36. PW11 has clearly admitted in the cross- examination that the first and second floors of the house at Bannimantap a Extension, Mysuru were :: 30 ::
constructed in the year 1991, and the ground floor a few years before. There is no dispute that entire construction was made und er the personal supervision of the accused and his family memb ers. PW11 has admitted that 10% deduction is allowed in case of construction und er self supervision. On the d ate of raid, the building was valued at Rs.7,41,983/- without allowing 10% deduction. If 10% deduction is given, Rs.74,198/- should be deducted. Then another glaring mistake mad e by PW11 was to include even the dividend earned on the investment in chits as an asset. Divid end should b e consid ered as income; this aspect has alread y been d iscussed and therefore Rs.32,098/- requires to be d educed from total value of assets computed by PW11. Therefore a total of Rs.1,06,296/- (Rs.74,198/- + Rs.32,098/-) is to be deducted from Rs.23,03,272.60 being the value of assets, both movable and immovable as shown by PW11 and the amount to be considered is Rs.21,96,976.60.
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37. In reg ard to expenditure, the I.O., i.e., PW11 appears to have given double ded uction to the exp enses incurred by Balaraju. PW11 has ad mitted in the cross-examination that he deducted Rs.1,40,000/- towards expenses such as clothing, gifts etc., and he has also given an admission that Balaraju was living in a joint family. His another admission is that in Ex.P2, he has shown deduction mad e towards expenses. That means, while computing the expenses, PW11 consid ered the total expenses of the joint family, and in that event, he could not have ag ain deducted Rs.1,40,000/- being the p ersonal expenses of Balaraju. The trial court has also wrong ly held that deduction of Rs.1,40,000/- is correct. This sum needs to be d educted from Rs.13,64,760.80, the amount which PW11 has computed as total expend iture of the accused for the check period, and therefore, the fig ure to b e considered is Rs.12,24,760.80.
38. The discussion mad e above takes me to hold that total income of the accused from known sources comes to RS.31,56,397/-.
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The total value of assets Rs.21,96,976.60 works out at The total expend iture during check period works Rs.12,24,760.80 out at The total of assets and Rs.34,21,737.40 exp enditure
39. The difference between the aggreg ate of assets and expenditure, and the total income of accused from known sources is Rs.2,65,340.40, which is less than 10% of Rs.34,21,737.40. In Krishnanda Agnihotri Vs. The State of Madhya Pradesh (1977) 1 SCC 816, it is held that " 33. It will, therefore, be seen that as against an aggregate surplus income of Rup ees 44,383.59 which was av ailable to the app ellant during the period in question, the appellant possessed total assets worth Rupees 55,732.25. The assets possessed by the app ellant were thus in excess of the surplus income available to him. but since the excess is comparatively small - it is less than ten p er cent of the total income of Rs. 1,27,715.43 - we do not think it would be right to hold that the :: 33 ::
assets found in the possession of the app ellant were disproportionate to his known sources of income so as to justify the raising of the p resump tion under Sub- section (3) of Section 5. We are of the view that, on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption".
40. In this case also, since excess of surplus is less than 10%, it may not be proper to sustain the judgment of conviction p assed against the app ellant-
accused . Therefore appeal is allowed, the judgment of conviction is set aside. The accused is acquitted of the offences charg ed ag ainst him. His b ail bond is cancelled .
Sd/-
JUDGE sd/kmv