Bangalore District Court
State By Karnataka vs Sri.C.A.Srinivasa Iyer on 28 June, 2022
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Spl.C.C. No.125/2009
KABC010194272009
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND THE
SPECIAL COURT FOR TRYING OFFENCES
UNDER THE PREVENTION OF CORRUPTION
ACT, AT BENGALURU CITY (CCH-78)
DATED THIS THE 28 th DAY OF JUNE 2022
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & THE SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No. 125/2009
COMPLAINANT: State by Karnataka
Lokayuktha Police.
(Rep. by Public Prosecutor)
/VS/
ACCUSED: Sri.C.A.Srinivasa Iyer,
S/o Late Anantha Iyer,
Aged about 59 Years,
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Spl.C.C. No.125/2009
Retired Superintendent
of Police, Armed Police
Training School,
Yelahanka, Bengaluru.
R/at No.993, 10th 'B' Cross,
West of Chord Road,
Nagapura, Rajajinagar
2nd Stage, Bengaluru-10.
(Rep by Sri.Shankar
Purander Hegde, Advocate)
TABULATION OF EVENTS
01. Date of commission of offence : 03-11-2007
02. Date of report of offences to
the Police Station (FIR date) : 16-06-2009
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : Lokayuktha Police.
06. Nature of offence complained : U/S.Sec. 13(1)(e)
R/w Sec.13(2) of
Prevention of
Corruption Act 1988.
07. Date of submission of
charge sheet : 19-06-2009.
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08. Date of commencement of
recording of evidence : 27-12-2012
09. Date of closing of evidence : 31-01-2020
10. Date of judgment : 22-06-2022
11. Opinion of the Judge in
respect of the offences. : Accused is
convicted.
*****
JU DG ME N T
1. The Dy.S.P., City Division, Karnataka
Lokayuktha, Bengaluru has filed the charge
sheet against the accused for the alleged
offences punishable under Secs. 13(1)(e) r/w
Sec.13(2) of the Prevention of Corruption Act,
1988.
2. The nub of the prosecution case reads as
under:
It is the allegation of the Investigating
Officer that the accused for the check period
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i.e. from 01-01-1987 to 03-11-2007 when he
was the Public Servant, was serving as the
Superintendent of Police, Armed Police
Training School, Yelahanka, Bengaluru was
found in possession of pecuniary
resources/assets in a sum of Rs. 81,02,997-
27 paise, expenditure of the AGO's family
was Rs. 34,44,798-43 paise and his known
source of income was Rs. 75,77,471-29
paise. It is the definite say of the IO that on
03-11-2007 when he conducted the raid and
search of the premises of the AGO, he was
found excess assets worth Rs. 40,60,324-41
paise which was the disproportionate assets
of the AGO's known source of income which
accounted for 53.58% and the accused failed
to satisfactorily account for the same and
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Spl.C.C. No.125/2009
thereby has committed the above stated
offences.
3. After securing the presence of the accused
before the Court, he was duly enlarged on
regular bail, as per the mandatory
compliance, prosecution papers were
furnished to him and initially the accused
had moved an application both under
Sec.227 r/w 239 of Cr.P.C. seeking for his
discharge, which was heard on merits and
came to be rejected by this Court. Then as
there was a prima-facie materials found to
frame the charges against the accused,
charges came to be duly framed by this Court
and read over to the accused in his known
language, the accused, understanding the
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Spl.C.C. No.125/2009
same has pleaded not guilty and claimed to
be tried.
4. In order to bring home the guilt of the
accused, the prosecution in all has examined
PWs.1 to 13 and exhibits at Ex.P.1 to P.174
came to be marked. No material objects
came to be identified. On the other hand, as
there was incriminating evidence found
against the accused, the statement as
contemplated under Sec.313 of Cr.P.C. came
to be recorded. The accused denied all of
them and chose to lead his evidence. He got
examined DWs. 1 to 38 and exhibits D.1 to
D.89 came to be marked.
5. Heard the arguments.
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6. During the course of arguments, the learned
defence counsel submitted his written
arguments with list of citations. I have gone
through them carefully in detail.
7. The fresh points that crop up for my
consideration are as follows:
1) Whether the prosecution proves
beyond all reasonable doubt that,
when the accused being the public
servant serving as the
Superintendent of Police in Armed
Training School, Yelahanka,
Bengaluru, on 03-11-2007 when
search and raid of his premises and
properties took place, was found
possessing assets to the tune of Rs.
81,02,997-27, expenditure in a sum
of Rs. 34,44,798-43 and an income of
Rs. 75,77,471-29. According to the
IO, he has considered the check
period from 01-01-1987 to 03-11-
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2007 and ultimately he came to a
conclusion that the AGO and his
family members were possessing the
property disproportionate to his
known source of income to the extent
of Rs. 40,60,324-41 which accounted
for 53.58% and inspite of offering an
opportunity to explain, the AGO
failed to satisfactorily answer the
same consequently resulting in
criminal misconduct and thereby, he
has committed offences punishable
under Sec.13(1)(e) r/w Sec.13(2) of
P.C.Act, 1988?
2). What order?
8. After carefully going through the materials
available on record and also considering the
facts and circumstances of the case, my
findings to the above points are as under:
POINT NO.1: In the affirmative.
POINT NO.2: As per my final order
for the following:
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R E AS O N S
POINT NO.1:
9. The prosecution main allegation made
against the accused is under Sec.13(1)(e) r/w
Sec.13(2) of the Prevention of Corruption Act,
1988, that means to say that according to
the IO, the Police Officer who has filed the
source report at Ex.P. 1 was quite sure that
the AGO has involved in embezzlement of
funds which were the root cause for
amassing the wealth disproportionate to his
known source of income. It could also be
seen from both oral and documentary
evidence that initial days of schooling and
college of AGO's children (2 sons and a
daughter), when they had no definite source
of income, the AGO could not have amassed
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Spl.C.C. No.125/2009
an amount of Rs. 40,60,324-41paise which
accounts for 53.58%. The charge sheet
contents of the prosecution also demonstrate
before the Court that the IO has taken into
consideration various items of assets,
expenditure and income of the AGO and his
family members, wherein inspite of giving
deductions to the lawful income of the AGO's
family, the above cited amount was the
disproportionate asset. It goes without
saying that when such a serious allegation is
made against the AGO, who was the
Superintendent of Police, Armed Police
Training School (Now retired), quite
naturally, those allegations have to be
substantiated with both cogent and cohesive
evidence. In this regard, the prosecution has
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examined totally 13 witnesses.
10. Coming to the evidence of PW. 1 by name
Sri.M.G.Subbha Rao, S/o M.S.Gurumurthy
Rao, according to this witness, for the
relevant period, he was the Police Inspector
attached to Karnataka Lokayuktha, City
Division Bengaluru. On 12-10-2007, he
claimed to have received a credible and
definite information in respect of acquisition
of assets disproportionate to the known
source of income by the accused, who was
the Superintendent of Police, City Armed
Reserve. It is also the evidence of PW. 1 that
this PW. 1 was joined to the police service in
the year 1973, promoted as the Police
Inspector in the year 1982, in the year 1994
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he became ACP and finally in the year 2005
he became SP. According to this witness, the
credible information received by him was
that the accused procured properties both
movables and immovables not only in his
name, but in the name of his wife also. It is
the evidence of PW. 1 that he has adopted
corrupt means to acquire these properties.
11. There is also the evidence given by this
witness that on 15-10-2007, he visited the
house of the AGO at No.993, 10th 'B' Cross,
West of Chord Road, Bengaluru and
inspected the house and that was worth Rs.
60 lakhs. On 17-10-2007, the informant
who gave the credible information to him
took him to Sy.No. 60, 2nd Main Road,
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Thambuchettipalya and showed a site
measuring 40 ft. x 60 ft. consisting of 2
storied building which was valued at Rs. 40
lakhs. It was found in the examination-in-
chief of this witness that on 19-10-2007, the
informant took him to another building of the
AGO situated at Electronic City and that
property was worth Rs. 2 lakhs. On 24-10-
2007, again this witness claims to have
visited Thambuchettipalya and identified the
property of the accused which was another
site measuring 40 ft. x 50 ft. had a palacious
building with 6 tenements worth about Rs.
40 lakhs. He estimated household articles in
a sum of Rs. 2 lakhs and the domestic
expenses of the AGO and his family in a sum
of Rs. 15 lakhs. According to this PW. 1, the
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Spl.C.C. No.125/2009
property possessed by the AGO and his
family including the expenditure, totally
came up to Rs. 1,59,00,000/-. The known
source of income of the said family as on that
date was Rs. 50 lakhs and according to this
witness, it is also revealed in his preliminary
enquiry that the accused was in possession
of the properties disproportionate to his
known source of income in a sum of Rs.
1,09,00,000/-, which is in excess, percentage
of 218%. Through this witness, Ex.P. 1 the
source report was submitted to the SP and
according to PW. 1, on the basis of Ex.P. 1,
FIR came to be registered and further
investigation was undertaken.
12. Coming to the evidence of PW. 2 by name
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Smt.Pushpa Devi, W/o M.R.Kumaraswamy,
who was a Geologist and her superior
received requisition from Lokayuktha asking
them to depute two officials for the purpose
of conducting raid and search of AGO's
premises. As directed, they went and met
Dy.SP, KLA who asked them to visit on next
day at 6.00 a.m. On 3-11-2007, they along
with KLA officials went to the house of the
AGO who was the Superintendent of Police,
Armed Reserve, gained entry to the house
which is situated at Rajajinagar,
Mahalakshmipuram, Bengaluru and it was
7.00a.m. The search and raid took place till
2.15 p.m. and a detailed mahazar was drawn
as per Ex.P. 2 and she has affixed her
signature at Ex.P. 2(a). It is also the evidence
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of this lady witness that from there she was
taken to the Union Bank of India at
Rajajinagar, where search operations took
place, locker belonging to the accused was
searched, wherein silver articles were found
and they were subjected to inventory and
mahazar was drawn as per Ex.P. 3 and she
has affixed her signature at Ex.P. 3(a). From
there, she was taken to the Yelahanka
Government Guest House and search
operations were conducted in the places said
to have been used by the accused and a
mahazar was drawn as per Ex.P. 4 and her
signature could be found at Ex.P. 4(a) on that
document.
13. Coming to the evidence of
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Smt.G.K.Aruna, W/o K.Nagaraj, she was the
colleague of PW. 2. Her version found in the
examination-in-chief is also to canvass before
this Court that she was deputed to assist
Dy.S.P. Karnataka Lokayuktha for the
purpose of conducting search and raid of the
house of the AGO. According to this lady,
when they went to the office of the Karnataka
Lokayuktha, they were explained as to what
was the task ahead of them and it is the say
of this lady that in her presence, a locker was
opened and the IO has taken note of the
articles and a panchanama was drawn as per
Ex.P. 5 and she has affixed her signature to
that document.
14. Coming to the evidence of PW. 4 by name
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Smt.Harishilpa G.R., W/o Vivekananda V.,
who was the LAO at BDA, but at the relevant
point of time in the year 2007 -2009, she was
the Tahsildhar at Mulabagal Taluk. On
account of the requisition received by her
from Dy.SP., Karnataka Lokayuktha, she has
furnished RTC extracts in respect of the
lands bearing Sy.No. 138/11, 155/12 and
45/7 for the years 1983-84 to 2008-09,
which was situated at Devarayasamudra
Village, Aavani Holbi, Mulabagal Taluk,
which belonged to the AGO.
15. Coming to the evidence of PW. 5 by name
K.V.Srinivasappa, who was the retired Range
Forest Officer at Mulabagilu, he received a
requisition from the ADGP, KLA, asking him
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to furnish details of existing of trees over one
acre of land belonged to the AGO in Sy.No.
138/11 of Devarayasamudra. According to
him, he visited the spot and he also traced
some Honge trees and valuation was
conducted by him, as per Ex.P. 36 given his
report with a covering letter at Ex.P. 37.
16. Coming to the evidence of PW. 6 by name
M.N.Om Prakash, S/o Naidu, he was the
Liason Officer at the Garden City Education
Trust, Old Madras Road, Bengaluru. He too
received a requisition from ADGP regarding
the rents paid to the building for the year
2007 at Tambuchattipalya, Bengaluru to the
accused because he was the owner. As per
Ex.P. 38, he furnished the report and
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admitted that they had paid a rent of Rs.
32,000/- in respect of that building as per
his report.
17. Coming to the evidence of PW. 7 Pranesh
Kumar, he was the AEE attahced to
Technical Wing KLA, Bengaluru. In view of
the directions contained in the letter of ADGP
dtd.20-11-2007, he was directed to estimate
the value of the properties found in property
No.993, A Main Road, Nagpura, Bengaluru
and also another property bearing Site
No.1910 at Srigandhakaval, another site
No.54 at Buttarahalli and another house
No.8 of same village which was under
construction. According to this witness, he
carried out the work of estimation after
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inspecting the said properties and on the
basis of PWD Manual and guidelines
mentioning the schedule of dates for the
materials used for construction. It is also
his evidence that he has given his report vide
Ex.P. 40 and he valued those properties in a
total sum of Rs. 63,03,000/-.
18. Coming to the evidence of PW. 8 by name
Jayadev Prakash, S/o Gurunanjundaiah,
who was the Joint Director in the Statistical
Wing of Karnataka Lokayuktha, Bengaluru.
He was directed by SP, KLA for calculating
the food expenditure of the AGO and his
family members for the check period 01-01-
1987 to 03-11-2007 and as per that
direction, he has submitted his report,
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wherein the total expenditure comes to Rs.
5,41,601/- for 22 years period, his report at
Ex.P. 42 was submitted with covering letter
at Ex.P. 44.
19. The evidence of PW. 9 by name
T.Narasimhalu, S/o T.Krishnaiah Shetty was
to state that he was the Office bearer of the
Jewelers Association, Bengaluru and in the
year 2009, the KLA police had asked him to
value the gold and silver of the year 1976. He
perused the list of prices of gold and silver
and provided the details in the form supplied
by them and as per Ex.P. 45 he has
furnished his report.
20. Coming to the evidence of PW. 10 by
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name Sri.Rangaswamy, S/o Krishnappa
Naik, who was the SP of KLA at the relevant
point of time. On 29-10-2007, his Inspector
by name M.G.Subba Rao submitted a source
report against the accused for the offences
punishable under Sec.13(1)(e) r/w 13(2) of
Prevention of Corruption Act, 1988 and he
gone through the said report and Ex.P. 1 was
registered.
21. Coming to the evidence of PW. 12 by
name T.V.Jayaprakash, S/o
K.T.Venkataramaiah, who was the Sub-
Registrar at the Attibele, Anekal taluk,
Bengaluru Rural District, in view of the
requisition received from KLA, he issued one
encumbrance certificate in respect of site
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No.13, situated at Lakshmisagara Village,
Shivapriya Township, 1st Phase, 'Q' Block,
measuring 40 ft. x 60 ft. and that document
is marked at Ex.P. 78.
22. Coming to the evidence of PW. 13 by
name N.Chandrashekaran, S/o Nateshan,
who was the Asst. Director of Agriculture,
Mulabagilu, Kolar District, he too received a
requisition from the IO, he assessed the
average income in respect of the agricultural
produce grown by the accused in the lands at
Devaraya Samudra at Mulabagilu Taluk. He
issued Ex.P. 155 and 156, which are the
reports and covering letters.
23. Lastly, coming to the evidence of the
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Investigating Officer PW. 11 by name
Sri.V.Shekar, S/o Vishwanathan, who was
the Dy.S.P. and according to him, on 02-11-
2007 at 11.45 a.m. he received a source
report at Ex.P.1 and the order of the SP,
Karnataka Lokayuktha. On the basis of the
said direction, Ex.P. 1 was registered and
Ex.P. 48 is the FIR, which was sent to the
jurisdictional Court in a covering letter.
According to PW. 11, he obtained search
warrant to conduct search of the accused
premises by securing panchas PW. 2, CWs.2
and 4. On 3-11-2007, PW. 2, CWs.2 and 4
appeared before him and he along with them
left the premises in their departmental
vehicle, reached the house of the AGO,
No.993, 6th A Main, 10th B Cross, Nagapura,
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Rajajinagar, Bengaluru and when they rang
the door bell, the accused himself opened the
door, got himself introduced and the
minimum formalities were completed.
24. It is the say of this PW. 11 that he seized
the copy of statement of Syndicate Bank
account, SBI, Credit Bill of Shiv Enterprises,
one quotation of Sai Fakade Solution, etc.
There is also detailed evidence given by this
witness in his examination-in-chief as to
what were the Fixed Deposits Receipts of
Canfin Homes, HDFC, LIC and GPF came to
be searched and seized by them. It is the say
of this witness that vide Ex.P. 2, detail
mahazar was drawn. Further, this witness
categorically has stated that they also came
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across the other documents i.e. to show that
the LIC policies are taken in the name of
AGO and his family members, Fixed Deposit
receipts of financial institutions. According to
this PW. 11, the household articles found in
that house was valued at Rs. 6,98,074/- and
those were referred in Ex.P. 2. It is the
further say of PW. 11 that during the search,
they found gold jewels totally weighing 74
grams and 200 miligrams, he seized them.
He also found gold chain and gold ring on the
person of the accused which was weighing 45
grams. His wife was wearing one gold
Mangalya Chain weighing 33 gms.200 mili
gms. and as it was a customary practice for
the wife to wear it, so he has not seized those
golden ornaments.
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25. According to this PW. 11, he secured one
appraiser by name Nagaraj, through him, he
weighed gold and silver items and he
assessed the gold items at Rs. 1000/- per
gram and totally on that day, it came up to
Rs. 74,200/-. He got assessed the value of
the silver items at the rate of Rs. 90 per gram
and the total was found to be Rs. 17,973/-.
There is also evidence given by this IO that
he has found a Maruthi Omni Van bearing
registration No.KA-02 P-6169 and its value
was fixed at Rs. 1,75,000/- approximately.
Through this witness his signature was got
identified at Ex.P. 2 as Ex.P. 2(b).
26. There is also evidence which could be
found in his examination-in-chief that, this
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PW. 11 came across bank locker in the Union
Bank of India, Rajajinagar Branch. On3-11-
2007, the said locker was opened, search
took place, totally weighing 1150 gms. of
silver articles were found, which were also
referred in Ex.P.3 separate panchanama was
drawn. According to this PW. 11, he
conducted the search of the official quarters
of the accused at Yelahanka, where no
valuable properties and records were found.
Even then, a separate panchanama was
drawn at Ex.P. 4 and his signature could be
seen at Ex.P. 4(b).
27. There is a evidence given by this witness
that he subjected the seized properties to the
property form (PF) and obtained the
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permission of the Court to keep those
properties in his custody till the filing of the
charge sheet. According to this IO, on 9-11-
2007, he addressed a letter to the Director
General and Inspector General of Police,
Karnataka Lokayuktha to furnish salary and
service particulars of the AGO. On 14-11-
2007, he obtained the copy of the sale deed
consisting of 8 sheets, which is marked as
per Ex.P. 68. On 22-11-2007, he received
the records pertaining to the educational
expenses of the daughter of the AGO. The
entire examination-in-chief is to show before
the Court that what were the documents
collected by the IO before filing the charge
sheet. There are materials in the form of
evidence to show that the accused has
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obtained the bank documents which are in
the nature of pass book, Fixed Deposits
Receipts standing in the name of the AGO
and his family members, encumbrance
certificate from the jurisdictional Sub-
Registrar in respect of immovable properties
owned by the AGO and his family members.
Likewise, according to this PW. 11, he wrote
a letter to the Income Tax department calling
upon IT returns particulars of the AGO.
Likewise, according to him, he also secured
documents from the Secretary of
Chandrapura Village Panchayath, Chief
Executive Officer, Taluk Panchayath, Anekal
Taluk in respect of the properties owned by
the AGO and his family members.
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28. On 21-04-2009, according to this
witness, he received a report from the
Manager, State Bank of India, West of Chord
Road, Bengaluru as per Ex.P. 139 in respect
of the monetary transactions that were
undertaken by the AGO and his family
members. All these documents were secured
by PW. 11 which was compiled, then
according to this PW. 11, he has filed the
charge sheet.
29. According to this PW. 11 the check
period of the AGO was fixed from 01-01-1987
to 03-11-2007 and that his investigation
discloses that the accused has amassed
wealth during that period. He reiterated that
the disproportionate assets amassed by the
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AGO was assessed, came up to 53.58%, he
was compelled to file the charge sheet.
Through this witness Ex.P. 163 to 174 came
to be marked, which were in respect of
securing documents from different offices
concerning both his movables and
immovable properties.
30. The above oral evidence of PW. 1 to 13
are to show before the Court that so far as
the assets, expenditure and income of the
AGO and his family members are concerned,
that were the documents on which PW. 11
has filed the charge sheet. To controvert the
same, apart from the AGO answering the
incriminating evidence found in Sec.313 of
Cr.P.C. statement, got examined totally 38
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witnesses on his side. These oral evidence
led on behalf of the AGO was only to show
that PW. 11 has under taken an incomplete
investigation and Ex.P. 1 and P.48 have been
filed when there is non-application of mind.
So, at the out set, charge sheet against the
accused for the alleged offences does not lie.
In this regard, I would like to first go through
the examination-in-chief of the defence
witnesses.
31. The DW.1 by name Shyam Sundhar,
according to him he was running a plastic
moulding powder agency business and he
was an income tax assessee. According to
this person, he knows the AGO and his elder
brother and the accused had a daughter by
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name Archana and two sons and the
marriage of Archana was took place in the
year 1998 and at that function, he has gifted
a sum of Rs. 50,000/- to Archana and in
this regard, an affidavit is marked as per
Ex.D. 17.
32. Coming to the evidence of DW. 2 by
name J.K.Jay Ram who was the relative of
the accused. According to him, he was an
employee of HMT company and this AGO has
constructed a house during the year 1988.
according to him, he had given a hand loan
in a sum of Rs. 25,000/- while he was
constructing the house and he has repaid
that amount during the year 2012. In this
regard, his affidavit is marked at Ex.D.18.
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33. Coming to the evidence of DW. 3 by
name Raj Kapur, who is the younger brother
of the AGO and according to him, the AGO
was owning a house at Subhash Nagar, TC
Palya, Bengaluru and his house is situated
about 2 KM away from the house of the
accused. He admits that he has signed a
lease deed which was executed in respect of
leasing of one of the house of the accused. He
has deposed further that the AGO's daughter
Archana's marriage took place in the year
1998 and he has gifted a sum of Rs.
25,000/- in hard cash and in this regard, his
affidavit is marked as Ex.D. 19.
34. Likewise, coming to the evidence of DW.4
by name Mrs.Aruna Ramchandra, she is the
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wife of the younger brother of the accused.
According to her, her husband was working
as an Administrative Officer in the Bowring
and Lady Curzon Hospital, who retired in the
year 2011. Since from the year 1992 to
2003, they were residing in the first floor of
the house belonged to the AGO as his
tenants. The accused used to stay in the
official quarters allotted to him and according
to her, she used to collect the rent from the
other tenants in the said tenement. There is
also evidence given by her that one Shivram
used to stay as a tenant in the ground floor
of that building, likewise she has taken out
the name of other tenants and what was the
lease amount paid by them. Through this
lady Ex.D. 20 to D.22 came to be marked.
38
Spl.C.C. No.125/2009
35. Coming to the evidence of DW. 5 by
name Sri.Ganga Channaiah, according to
him, he knew the accused when he was
serving as the ACP in the CR Head Quarters,
Bengaluru, he was a jeep driver. According to
this person, he knew about the fact that the
accused has a house at Thambuchetty Palya,
KR Puram, Bengaluru and the second house
at Rajajinagar, Bengaluru. It is the evidence
of this witness that the house at TC Palya
were given to the students of the Garden City
College on lease. There was a lease
agreement entered into between the AGO and
the concerned office bearers of the Garden
City College.
36. Coming to the evidence of DW. 6 by
39
Spl.C.C. No.125/2009
name R.Sathyanarayana who claims to be
the relative of the AGO, according to this
person he has issued Ex.P. 136 letter and his
signature is at Ex.P. 136(a). According to this
witness, when the wife of the accused
traveled to USA from Bengaluru during
March 2007, a payment was made through
cheque, that cheque was issued by one
Ashwathnarayana and that
Ashwathnarayana is none other than this
witness's brother-in-law and according to
this witness that cheque amount was paid by
the AGO. The wife of the AGO went to
America to join her daughter as she was due
for delivery of baby at USA. But according to
this witness, that trip to USA was canceled
as wife of Ashwathnarayana fell ill. This
40
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examination-in-chief was given only to show
that even though his son-in-law has issued a
cheque towards his Air fare were canceled on
account of no trip to USA later by AIR.
37. Coming to the evidence of DW. 7 by
name Sujatha Uday Kumar, according to her,
she knew the accused and she is the younger
sister of AGO's wife. When her husband was
alive, he was doing business in
telecommunication and liquor business. In
the year 2007, when AGO was constructing
his house at K.R.Puram, he has sought
financial assistance from them. According to
this lady, they advanced loan of Rs.
3,75,000/- to the AGO out of which Rs.
1,75,000/- was paid by way of cheque to her
41
Spl.C.C. No.125/2009
and another Rs. 2 lakhs was paid through
cheque to his husband. Through this lady,
Ex.D. 28 came to be marked.
38. The efforts undertaken by the AGO to
place his both oral and documentary
evidences are on the footing that as the
prosecution is under the onus of proving the
guilt beyond also reasonable doubt but it
shall have to be proved in accordance with
law, and lastly beyond all shadow of doubt or
suspicion. In this line of contention, again
DW. 8 by name Ranganath C.N., S/o
C.M.Narayana Iyer, who claims to be the
relative of the AGO, the cousin brother and
in the year 1998 according to him, he has
gifted an amount of Rs. 5,000/- to the
42
Spl.C.C. No.125/2009
daughter of the AGO in her marriage. It is
also the version of this witness that it is in
the year 2003 when the betrothal ceremony
of the son of the AGO Raghavendra, he has
also gifted a sum of Rs. 5,000/- to him.
According to this witness the accused
constructed two house at K.R.Puram. He
also constructed a house in the same layout
at K.R.Puram and he came to know that the
AGO has let out those houses and getting the
rental income from both the houses. At the
same time, this AGO was residing at a house
constructed at Rajajinagar and this witness
spoke about what was the regular and
consistent income received by the AGO.
39. Another witness by name
43
Spl.C.C. No.125/2009
Smt.D.G.Geetha, W/o Ranganathan has
been examined as DW. 9. According to this
lady, the AGO is her cousin brother, she also
gifted Rs. 5,000/- to Archana, the daughter
of the AGO at her marriage which took place
on 06-12-1998. Likewise, again this lady
claims that she also gifted equal amount of
money i.e. Rs. 5000/- to Ragavendra at his
betrothal or Bramhopadesham ceremony.
40. Another witness by name Smt.Gayathri,
w/o Venkatasubbu has been examined as
DW. 10. According to this lady, this AGO is
her younger sister's husband and according
to this lady, she attended the marriage of
Archana, the daughter of the AGO, she has
presented a sum of Rs. 10,000/- to that bride
44
Spl.C.C. No.125/2009
and in the year 2003, she attended the
betrothal ceremony of Raghavendra/vatu,
she said to have gifted cash of Rs. 2,000/- to
him. According to this lady, her husband
Venkatasubbu was an employee of BEML,
KGF and he passed away in the year 1998,
she received the DCRG of her husband and
out of that amount, she has presented these
gift amounts to both Archana and
Raghavendra.
41. Another witness by name Gurudath, S/o
Ramachandraiah was examined as DW. 11
by the AGO. According to this witness, the
AGO is his paternal uncle and in the
year1992, he was residing at the 1 st floor of
his uncle's house situated at 6th A Main, West
45
Spl.C.C. No.125/2009
of Chord Road as a tenant and he was tenant
in that premises till 2003. Initially he was
paying rent of Rs. 2,700/- and that was
periodically enhanced to Rs. 4,000/-. So, in
his evidence, the document styled as a lease
agreement came to be marked as Ex.D. 20
and this witness has identified his signature
at Ex.D. 20(c).
42. Another witness by name Ranganath,
S/o D.R.Narayana Iyer has been examined as
DW. 12. According to this person, he is an
agriculturist by profession and the AGO is
his relative. He was owning 8 acres of land
near the Venkatamma Tank situated at
Devaraya Samudra and the land of the AGO
is situated towards the western side of his
46
Spl.C.C. No.125/2009
land. The AGO had 1 acre 30 guntas of land
and another piece of land which is survey
Thopu or Neelgiri grove measuring 1 acre 12
guntas. The AGO was growing paddy,
groundnut and ragi every year. According to
this witness, the AGO used to get annual
income of Rs. 50,000/- to 60,000/-.
43. Coming to the evidence of DW. 13
Ramesh, S/o Gangadharappa, who was a
Supervisor in the Garden City College. He
claims to have known the accused and in the
year 1998-99 this AGO was constructing a
building next to their college, so he came to
know about the AGO. The AGO at that time
told him that he is constructing rooms in the
said building for the students and has
47
Spl.C.C. No.125/2009
requested him to refer their college students
to this building and the construction of that
building was completed in the year 1999, it
had 4 floors, ground floor had 3 houses of
one BHK, 1st floor and other two floors had 2
BHK accommodations. According to this
witness, he had referred some students to
this building to occupy them as tenants. It is
also the say of this witness that some of the
tenants used to pay the rents either to the
AGO or to his wife Saraswathi.
44. Coming to the evidence of DW. 14 by
name Nagarajaiah, S/o Ramaswamy, who is
a Carpenter by profession, according to this
witness, he identified the accused and claims
that he knew this accused for the past 25
48
Spl.C.C. No.125/2009
years from the date of giving this evidence
before this Court. From 1981 to 1991, he
was working with the accused when the
construction of his building was going on. He
has prepared doors, windows, furniture and
he was working initially on a daily wages of
Rs. 30/- to 35/-, later it was enhanced
periodically. It is also the claim of this
witness that he has prepared/manufactured
all the wooden furniture belonging to the
AGO.
45. Coming to the evidence of DW. 15
V.S.Rajendra, S/o V.S.Srinivas, who claims
to be a Contractor and he had supplied
building materials through his three lorries.
He had given registration numbers of 3
49
Spl.C.C. No.125/2009
lorries and the building materials supplied by
him was sand, size stones, baby jalli stones
and other steel items. According to this
witness, he has obtained license from the
department of mines and genealogy, but he
has not produced that license in this case. It
is in his evidence that the AGO used to
contact him for the supply of building
materials and through this witness 7
documents which are in the nature of
vouchers, bills at Ex.D.29 to 35 came to be
marked. The claim of this witness is that
some of them are the relevant portions of the
credit books.
46. Coming to the evidence of DW. 16 by
name Dr.Mallappa, W/o M.Veerabadrappa,
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Spl.C.C. No.125/2009
he claims to have known the accused. This
accused approached him for obtaining his
annual agricultural income in respect of his
agricultural properties situated at
Devarayasamudra Village, Havani Holbi,
Mulabagal Taluk. According to this witness,
he visited the three agricultural lands and
also inspected the nature of crops grown by
the AGO in the said lands, then he collected
the RTCs commencing from the years 1974-
75 to 2009-10 and also have considered the
nature of soil and came to a conclusion that
the estimated income of the accused
especially the agricultural income in respect
of Sy.No. 45/7 of the above said village was
Rs. 46,597/-. Likewise, he has quoted
different figures in respect of Sy.No. 155/12
51
Spl.C.C. No.125/2009
and 138/11 of the said village. Through this
witness, his reports/estimations with
covering letters came to be exhibited at Ex.D.
36 and 37 and this gentleman has identified
his signatures on those two documents as
Ex.D. 36(a) and 37(a).
47. Coming to the evidence of DW. 17 by
name Chandramouli, S/o Krishna Iyer, who
was an Accountant in Lalith Associates. The
said Lalith Associates is the dealers in pump
sets. According to this witness, he came to
know about the accused as he had
purchased a pump set from their association
and through this witness, Ex.D. 38 which is
the carbon copy of a bill came to be marked.
52
Spl.C.C. No.125/2009
48. Likewise, coming to the evidence of DW.
18 Belliyappa, S/o Thammaih, according to
him in the year 2007, he was running a
Hallow bricks manufacturing unit at the
Venkatala near Yelahanka in the name of
Padmavathi transport. According to him, in
the month of September 2007, this AGO has
visited to their unit and placed an order for
supply of hallow bricks, 20 mm jelly and dust
to his building site situated Thambuchetty
Palya, K.R.Puram. According to this witness,
at that time, the AGO purchased
construction materials worth Rs. 2,01,950/-
and in this regard, he has passed a credit
bill. The examination-in-chief discloses that
as the AGO went on to mark the Xerox copy
of the credit bill, the Learned Public
53
Spl.C.C. No.125/2009
Prosecutor raised objections. Subject to the
said objections, the xerox copy of credit bill is
marked at Ex.D. 39 and the signature of this
witness was marked at Ex.D. 39(a).
49. Coming to the evidence of DW. 19 by
name Jagadish C.S., son of the AGO and
according to this person, he is a MBA
graduate and he has completed BCA degree
in the year 2007 and then he joined Aaura
Data Networks Pvt.Ltd. And he was getting
monthly salary of Rs. 14,000/- plus
allowances and incentives of Rs. 10,000/-.
The said salary and perquisites were credited
to his SB account at ICICI Bank and he has
produced his pay slip and according to the
Learned Public Prosecutor as it was a xerox
54
Spl.C.C. No.125/2009
copy, the same cannot be marked as
document, then the admissible documents at
Ex.D. 41 to 43 came to be marked. Likewise,
it is the evidence of this DW. 19 that he came
to know about the negotiations that took
place after the sale agreement between his
father and one Ragavendra and he has
spoken about the sale agreement in respect
of that immovable property.
50. Coming to the evidence of DW. 20 by
name H.S.Chandrashekar, S/o
H.R.Subramanya Iyer, who claims to be the
relative i.e. the brother in law of the accused.
He claims to have attended the marriage
function of Archana, the daughter of the AGO
and that he has presented a cash of Rs.
55
Spl.C.C. No.125/2009
5,000/- to her and in the year 2003, he has
attended the thread bearing ceremony of
Raghavendra and he presented cash of Rs.
10,000/- as gift.
51. Coming to the evidence of DW. 21 by
name Ashok Kumar who is the relative of the
AGO and he has spoken about the fact that
the AGO had two sons and a daughter and
he claims to have attended the marriage
function of Archana which took place at
Shilpashri Kalyana Mantapa situated at the
Bannergatta Road and presented cash of
Rs.5,000 and his mother presented cash of
Rs. 10,000/-. According to this witness, he is
an Engineering graduate working with
Enclotek Ready Panels Pvt. Ltd. and he was
56
Spl.C.C. No.125/2009
getting a salary of Rs. 18,000/- per month
with incentive. He also claims to have
attended the Upanayana Ceremony of
Raghavendra and presented cash of Rs.
15,000/-, at that time, he was working at
German Company.
52. Coming to the evidence of Smt.Gayathri,
W/o Prasanna Kumar examined as DW. 22
by the AGO, according to her, the AGO is her
cousin brother, she is an Engineering
Graduate and did her MA in sociology, from
the year 1990, he was running a tutorial in
her home and taking classes up to 8th
Standard and she was also conducting
tailoring classes. From the year 2000, she
was getting monthly rent of Rs. 10,000/- and
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Spl.C.C. No.125/2009
she claims to have attended the marriage
ceremony of Archana and Bramhopanayana
ceremony of Raghavendra and she has gifted
cash of Rs. 5,000/- and Rs. 10,000/-
respectively.
53. Coming to the evidence of DW. 23 by
name Kumar, S/o Jaipal who claims to have
known the accused and this person is a
plumber by profession. He has undertaken
the plumbing contract work of the accused
building in the year 2006 and he tookk Rs.
1,41,000/- to complete the plumbing work
and initially the accused has paid Rs.
65,000/- and the balance amount of Rs.
86,000/- was paid in the year 2008-09 and
through this witness, receipt at Ex.D. 40
58
Spl.C.C. No.125/2009
came to be marked and this witness has
identified his signature on that document at
Ex.D. 40(a).
54. Coming to the evidence of DW. 24 by
name Prabha, W/o Sathyan, she claims to be
the relative of the AGO and she has deposed
that her husband was an operator in
Kirloskar company and she claims to have
attended the Upanayana ceremony of
Raghavendra and gifted Rs. 10,000/- as
present. Likewise, she was also an invitee to
the marriage ceremony of Archana, she
claims to have gifted Rs. 10,000/- to
Archana. There is also evidence given by her
that she had brought the service particulars
documents of her husband and according to
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her, her husband had taken voluntary
retirement.
55. Coming to the evidence of DW. 25 by
name G.S.Krishnamurthy, S/o
G.M.Subramanya Iyer, who was a Chartered
Accountant by profession and according to
him, the AGO is his clients. According to
this witness, the AGO has appeared before
him for settlement of his case with regard to
the notice issued by the Income Tax
Department and after accepting the brief, he
also verified all the records produced by the
AGO and submitted his return before the IT
department and after verifying the returns
and considering the evidence, the IT
department has accepted their submissions
60
Spl.C.C. No.125/2009
and through this witness the assessment
order issued by the IT Officer and their
explanation are marked at Ex.D. 44 to 46.
56. Coming to the evidence of DW. 26 by
name Pathraiah, S/o Appaiah Hiremat who
claims to be the Journalist. According to
him, in the month of May 2003, he occupied
the 2nd floor of the building of the accused in
his property bearing No.993 of
Mahalakshmipuram, Bengaluru. Initially he
was paying the rentals to the said house in a
sum of Rs. 5,350/- and paid advance
amount of Rs. 1,00,000/-. The rent used to
be issued through his wife's SB account
cheque with Apex Bank, Vidhana Soudha,
Bengaluru in the name of the AGO. Through
61
Spl.C.C. No.125/2009
this witness, the rental agreement of Ex.D.
47 came to be marked. Coming to the
evidence of DW. 27 by name L.Narayan, who
was the businessman and he also claims to
be the tenant of the AGO in respect of house
No.993 of Mahalakshmipuram. According to
him, he was paying the monthly rentals of
Rs. 4,500/- and advance amount of Rs. 2
lakhs and the rent was subjected to
fluctuations and enhancement.
57. Coming to the evidence of DW. 28 by
name D.Nagaraj who was the approved
valuator. His evidence came to be recorded
as the accused thought it right on his part to
examine this witness in spite of the
prosecution examining PW. 7 who was the
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registered Engineer who has issued Ex.P. 17
in respect of all the immovable properties.
So, in a way this evidence was to rebut the
evidence led by PW. 7. According to this DW.
28, as he knew the accused, on 02-01-2009,
he visited the property bearing house List
No.1025 of Battarahalli village, Bengaluru
and on 5-01-2009, he prepared valuation
report. According to this person, the AGO
constructed the said building in the year
2005. So, he visited that property in the
month of May 2005. Through this witness,
his report at Ex.P. 50 came to be marked,
who later on goes to identified his signature
at Ex.D. 50(a). In his further examination-in-
chief, again this witness dwells upon giving
evidence in respect of another property i.e.
63
Spl.C.C. No.125/2009
Site No.993 of Mahalakshmipuram, West of
Chord road, Bengaluru and that property
was constructed in the year 1988-89. Then,
so far as the 1st and 2nd floor building, it was
constructed in between 1988-89 and second
floor was constructed in between 1990-91
and 3rd floor in the year 1993-94. Through
this witness Ex.D. 51, which is the separate
report in respect of this property came to be
marked. Another valuator by name
Gundappa who who has not been examined
by the prosecution being marked at Ex.D.
51(b). So far as the wife of the AGO by name
Saraswathi is concerned, she has
constructed house property No.54 of
Subashnagar, Battarahalli i.e. th 1st, 2nd and
3rd floor on different years of construction.
64
Spl.C.C. No.125/2009
This witness has spoken about when was the
construction under taken, when was it
completed and also issued a separate report
which is at Ex.D. 52. Now, in this case, this
AGO has taken all precautions to get the
signatures of both this witness and one
Gundappa on all the reports which are at
Ex.D. 50 to 53, as even though Gundappa
has signed those reports, he has not
attended the Court to give evidence. So, the
accused knows very well that so long as said
Gundappa has not come to the Court to give
evidence or to face the cross-examination, his
reports at Ex.P. 50 to 53 is not complete.
Likewise, this witness speaks about Ex.D.
53, which is the valuation report of the site
bearing No.1910, situated at the
65
Spl.C.C. No.125/2009
Srigandadakavalu, 'D' Group Employees
Housing Society, Bengaluru and identified
his as well as Gundappa's signatures on that
report.
58. Coming to the evidence of DW. 29 by
name Jitendra M.Patel who claims to be the
Timber Merchant and according to him, the
AGO used to purchase timber/wood for the
purpose of construction from his shop. He
was also selling timber, plywoods and
hardware materials. So, in the year 2007,
the AGO had purchased timber from him
through one Jayaram worth Rs. 1,89,318/-
on credit basis and through this witness bill
at Ex.D. 54 came to be marked. Coming to
the evidence of DW. 30 by name Manjunath
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Spl.C.C. No.125/2009
who claims to be the Manager in
Raghavendra Agencies, which dealt with sale
of Pump sets and electrical items. According
to this witness, on 30-10-2007, the accused
had purchased a set of borewell motor and
its accessories including pipes. The total
costs of them was Rs. 11,388/- and again on
31-10-2007, he purchased extra pipes worth
Rs. 1,897/- and through this witness, Bill as
well as invoice came to be marked at Ex.D.
55 and D.56. Coming to the evidence DW. 31
by name Shivaram S.K. who also claims to be
the close acquaintance of AGO and his family
members. According to him, he was a tenant
in the ground floor of House No.993 of
Mahalakshmipuram and was paying initial
monthly rent of Rs. 2,300/- and also spoke
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about the earnest money and execution of
rent agreement between him and the AGO.
59. Coming to the evidence of DW. 32 by
name Khaleel Ur Rahman who was the
Manager at HN Trading Company, which was
selling sanitary articles to the customers and
according to him, the accused was their
permanent customer, he had purchased
sanitary articles worth Rs. 45,000/- and
issued 3 cheques of Rs. 15,000/- each. Out
of the said 3 cheques, 2 cheques were
hounoured and one cheque came to be
dishonoured. Through this witness, letter at
Ex.D. 57 and 58 came to be marked.
60. Coming to the evidence of DW. 33,
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Spl.C.C. No.125/2009
Chandrashekar, who was the Writer and
Head Constable attached to the KSR,
Bengaluru and he claims to have worked
under the AGO. According to this witness,
the AGO had constructed buildings at
Tambuchetty Palya and K.R.Puram and had
let out the same to various tenants. This
witness speaks about the monthly rents paid
by the tenants to the AGO and his wife
Saraswathi.
61. Coming to the evidence of DW. 34
C.A.Ramachandra Iyer, according to this
witness, present AGO is his elder brother and
in the year 1992, he occupied the premises of
his brother situated at Rajajinagar,
Bengaluru till 2003 and he was staying in
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Spl.C.C. No.125/2009
the first floor and one Deepak was in the
ground floor from 1-8-1999 to 2002 and after
he vacating the said premises, one
Mr.Pallakki has occupied that ground floor
portion and this younger brother of the
accused has spoken about different tenants
paying different sums of money as rentals to
the AGO and his family members. Through
this witness, lease agreements at Ex.D. 59
and 60 came to be marked.
62. Coming to the evidence of DW.35 by
name Girish, S/o Jayappa, who claims to be
doing business in transportation of steel and
one Mr.Singh was running a hardware shop
under the name and style as T.D. & Co. and
about 10 years back, this witness claims to
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Spl.C.C. No.125/2009
have transported steels to the accused, which
was in the year 2007-2008 and the accused
has purchased steel worth Rs. 2,00,000/-
and odd. He also speaks about the proprietor
of that hardware shop said to have issued
receipt to the AGO in this regard.
63. Coming to the evidence of DW . 36 by
name Archan Ayyar, W/o Narendra.
According to this lady, she is a daughter of
AGO, according to her, she has completed
B.Sc degree in Computer Science in the year
1998, her marriage was solemnized in the
month of December 1998 and her marriage
expenses were borne out by her husband and
his family members. At that time, her
husband was working as a Senior Software
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Spl.C.C. No.125/2009
Engineer in Wipro Technologies and at her
marriage, this witness received presentations
in the form of cash to the tune of Rs.
80,000/-. Apart from that, another Rs.
50,000/- from her junior uncle
Ramachandra Ayyar, Rs. 50,000/- from
Shamsundra Ayyar and from another uncle
Rs. 25,000/- were received as presentations.
According to this lady, she went to USA in
the month of January 1999 and stayed till
2000. According to this lady, her mother is
getting rent from 3 tenements in a building
and that building is situated at
Tambhuchettipalya. Coming to the evidence
of DW. 37, Raghvendra C.S., who is the son
of the AGO and according to him, he
completed his B.C.A. graduation in the year
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2003, then he joined in M/s.M.Source India
Pvt.Ltd. and he was getting a salary through
City Bank, M.G.Road Branch, Bengaluru and
apart from his salary he was also given
incentives. According to this witness, he was
attending to night shifts and he was provided
with conveyance by the Company. Further,
according to this witness in the month of
June 2005, he joined Symphony Services
Private Ltd., they used to credit his salary
through ICICI Bank and even in this
company also he was provided with
conveyance. During his tenure, the company
has credited amount of Rs. 1,17,072/- to his
account. Then in the year 2006, he joined
Retail Academy Pvt. Ltd. Bengaluru and
worked there up to December 2007 and a
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total salary of Rs. 2,29,900/- was received by
him and in the year 2008, he started his own
company and net profit earned by him was
Rs. 8,60,767/-. It is also the say of this
witness that his sister Archana Iyer was also
receiving rents from their building at
T.C.Palya and his father sold a site at
Kachanayakanahalli to one Raghavendra for
sale consideration of Rs. 4 lakhs and also
has spoke about the sale agreement entered
into between his father and the purchaser in
that regard. Through this witness, Ex.D. 61
to D.66 came to be marked.
64. Coming to the crucial evidence of the
accused at DW. 38, this witness/the AGO
has taken pains to narrate all those events
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Spl.C.C. No.125/2009
which ought to have formed particulars of his
schedule which he did not submit to the IO
either during the course of investigation or
after filing the charge sheet in this case. This
DW. 38 spoke about the fact that on 12-04-
1973 he joined as the Sub-Inspector of
Police, then in the year 1981 as the Reserved
Police Inspector, then in the year 1993 he
was promoted as Dy.S.P., D.A.R. Tumkur and
in the year 2005, he was promoted as S.P.,
posted to A.P.T.S., Yelahanka, Bengaluru and
retired in the year 2008. According to this
person, his service was unsuspected and
there was no any complaint against him to
the higher authorities. According to him, his
father was an agriculturist at
Devarayasamudra in Mulabagilu Taluk,
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Spl.C.C. No.125/2009
Kolar District, they were owning 3 acres 26
guntas of land at the said village. Those
lands were fertile and his father used to
irrigate the said lands with the help of tank
water and they were growing crops like
paddy, ragi, jawar and groundnuts and his
father died in the year 1987. It is also the
say of this witness that in the year 1993, he
had planted honge trees, neelagiri trees and
survey trees in the land bearing Sy.No.
138/11 of Keelaholali and he was getting
regular income from the agricultural lands.
This witness also spoke about the evidence
given by DW. 16 by name Dr.Mullappa,
Director of Agriculture and his report at
Ex.D. 36 and 37.
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Spl.C.C. No.125/2009
65. According to this witness he was married
to one Smt.Saraswathi on 03-012-1976 and
his father-in-law had given all the household
articles to his wife, he had two sons and a
daughter and his daughter's marriage took
place on 6-12-1998 and the marriage
expenses were incurred by her daughter's
father-in-law. He has spoken about the gifts
offered by his friends and relatives in the
marriage ceremony of his daughter. It is the
say of this witness that in the year 2007, his
wife had been to America to attend his
daughter's second delivery and at that time
also, his daughter's father-in-law had paid
the air ticket charges in a sum of Rs.
65,707/- and that he has not spent single
pai towards this. According to this witness,
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Spl.C.C. No.125/2009
his property situated at West of Chord Road,
Bengaluru consists of ground, first, second
and third floors and he constructed ground
floor in the year 1984-85, he borrowed a loan
of Rs. 60,000/- from his department and
then he constructed the first floor of that
building in the year 1988-89 and also claims
to have borrowed hand loans from his
brother-in-law Mr.Jayaram and his mother
had given Rs. 25,000/- to him. There is an
evidence found in this DW. 38 ocular
evidence that the construction costs of this
building estimated by PW. 11 at Rs.
20,63,000/- is incorrect as according to this
witness PW. 11 has not considered the SR
rates of the relevant period, but he has
considered the SR rate of 2002 and 2004.
78
Spl.C.C. No.125/2009
According to him, he got estimated the total
costs of that building at Rs. 3,55,000/-.
66. According to DW. 38, even to the date
on which he gave this evidence, both himself,
his wife and children were residing jointly.
He has also given the reason also to the fact
of the loan of Rs. 40,000/- obtained by him
that he was able to purchase Site No.54 of
Battarahalli. According to this witness, he
has disclosed all these aspects in his APRs.
But, according to him, the IO has not
considered these aspects while conducting
the detailed investigation. The further
examination-in-chief of this witness was to
give answers to the charge sheet queries of
the IO in respect of how he satisfactorily
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Spl.C.C. No.125/2009
accounts for those both movable and
immovable properties. The examination-in-
chief also spoke about the fact that at the
time of marriage of Archana and also
upanayana ceremony of Raghavendra, they
received lavish gifts which he had deposed in
page 13 to 16 of his examination-in-chief.
Likewise, according to this witness, he also
received a sum of Rs. 1,50,914/- out of the
matured KGID and LIC policies, but the IO
has wrongly taken into consideration the
total amount in this regard. When he was
the PSI, he has received a cash price of Rs.
1,000/- from his SP and also one
Mr.Ashwath Narayan has spent a sum of Rs.
65,707/- towards the flight ticket of his wife
Smt.Saraswathi to USA and his family
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Spl.C.C. No.125/2009
members. According to him, in respect of
Maruthi van bearing Reg.No.KA02 P 6169,
his wife Saraswathi has spent a sum of Rs.
20,000/- towards its maintenance. Likewise,
he has borne the Hero Honda Motor bike
expenses of Rs. 6,000/-. So the expenditure
of his daughter's marriage has been
considered by the IO as Rs. 2,50,000/-, but
it was borne out by his brothers, cousins,
sisters and sister-in-laws. According to this
witness, the total family expenditure comes
to Rs. 25,39,212/-, whereas the PW. 11 has
considered the same as Rs. 34,44,798/-. So,
here the big difference of Rs. 10,87,503/-.
Through this witness, Xerox copies of bank
account extracts of his wife have been
placed, so also the documents which are at
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Spl.C.C. No.125/2009
Ex.D. 70 to 75 came to be marked.
According to this person, after registering the
present case, TD & Co. had issued a letter
directing him to pay their due amount
regarding purchase of iron and steel on 29-
03-2007. That document also came to be
marked through this person.
67. In a nut shell, this DW. 38 has given
evidence to state that the IO has not recorded
his statement or that of his wife
Smt.Saraswathi. He reiterates the fact that
both his wife and children used to get rents
from the property situated at K.R.Puram and
he has received a sum of Rs. 2,12,184/- by
way of gift and presentations from family
functions and other ceremonies. According
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Spl.C.C. No.125/2009
to this witness, he has also purchased Omni
car by borrowing a loan of Rs. 55,000/- from
the Syndicate Bank, Chamarajpet Branch,
Bengaluru and NSC certificates worth Rs.
92,220/- were encashed by him. According
to this witness, he has deposited a sum of
Rs. 5,38,982/- in the Recurring deposit
accounts of the State Bank of India, West of
Chord Road, Bengaluru and a sum of Rs.
13,184/- and Rs. 10,120/- as RD's in the
Post Office. According to this witness, the
rents received from the tenants used to be
credited to his and his wife's bank accounts,
which were maintained at SBI, West of Chord
Road and Syndicate Bank, Rajajingar
branch, Bengaluru. According to this
witness, before he could undertake
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Spl.C.C. No.125/2009
construction work, he had obtained
permissions from the competent authorities
and he has raised loans from different banks
and financial institutions. He had obtained
agricultural loans and raised gold loans for
putting up those house constructions.
According to this witness, all the buildings
were constructed by his personal
supervision by taking the help of his
brother-in-laws, who are qualified architects
and engineers.
68. Ultimately, according to this DW. 38,
PW. 11 has not considered his total assets,
income and expenditure while determining
his disproportionate assets whereas, the
assets were considered on higher side by
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Spl.C.C. No.125/2009
lowering the value of articles, hence, a false
charge sheet came to be filed. So, DW. 38
has craved leave of this Court not to consider
the evidence tendered by PW. 11 and sought
for his acquittal in this case.
69. Now, it is the calculation of PW. 11 that
after completion of his investigation, when
the final report was submitted, the total
assets of the AGO and his family stood at Rs.
81,92,997-27, total expenditure Rs.
34,44,798-43 and the income of their family
was Rs. 75,77,471-29. The excess asset
which is branded as disproportionate assets
of the accused from the unknown sources
was Rs. 40,60,324-41 which accounts for
53.58%. So, according to PW. 11, this DW .
85
Spl.C.C. No.125/2009
38 in spite of getting time to reply could not
satisfactorily accounted for this excess assets
which the PW. 11 brands it as
disproportionate assets of the accused.
Quite naturally, when the calculation table of
PW. 11 is taken note of, assets and
expenditure are on the higher side, whereas
the total income is on the lower side. So far
as assets are concerned, one cannot rule out
sight of the fact that the immovable
properties in the form of vacant sites and
house buildings situated at Bengaluru is
taken note off, their value cannot be
undermined or under quoted. Each building
has got three storied complex and apart from
it, the accused also claims that so far as
ancestral and joint family properties are
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Spl.C.C. No.125/2009
concerned, he is in possession and
enjoyment of the same as his brothers have
relinquished their rights over it in his favour.
So, the only available contention of this
accused is that he shall have to satisfy before
the Court that how this excess assets is not
disproportionate to his known source of
income. When the oral and documentary
evidence of the accused are gone through,
the major crunch of his amount comes from
the gifts which both he and his family
members claims to have received by them
and their respective values other than cash.
He also urged another contention to convince
this Court that by obtaining loans from
various financial institutions, and also by
raising hand loans from his relatives and
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Spl.C.C. No.125/2009
friends, he has completed the construction.
70. The other limb of the arguments on the
part of the AGO is that PW. 11 has not taken
into consideration the rental income as well
as the earnest money deposits received by
him and his wife from different tenants.
Likewise, it is also contended by him that
wantonly the IO has not taken into
consideration the income of his wife
Smt.Saraswathi. Admittedly, if the AGO is
able to convince before the Court that all the
buildings either at West of Chord Road or at
K.R.Puram or at Thambuchetty Palya were
constructed by mobilizing his lawful source,
then there is no question of disproportionate
assets at all. Here the difficulty is that the
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Spl.C.C. No.125/2009
price of item No.1 of the assets which is
quoted by the IO in a total sum of Rs.
20,63,000/-, which is the value of the house
building No.993 of West of Chord Road,
Bengaluru excluding the sital value. But, the
AGO has valued the same only Rs.
3,55,000/-. The difference amount is Rs.
17,08,000/-. This is a small example to show
that how the accused is trying to bridge this
gap. Because, if the prosecution is able to
show successfully that ill-gotten wealth was
used to construct the house properties,
which has several tenements, then the IO
considering the rental income of either DW.
38 or his wife Smt.Saraswathi does not arise
at all. If the property is either purchased or
constructed through unknown source of
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Spl.C.C. No.125/2009
income, then any income or profit generated
out of it can only be a mesne profit or a
unlawful gain.
71. So far as gifts received by Smt.Archana
or Raghavendra at their respective marriage
and betrothal ceremony cannot have a
bearing on the merit, because, the AGO has
examined many friends and relatives who
having given their ocular evidence only were
busy in marking self claimed affidavits and
nothing else. In fact, all these witnesses in
their cross-examinations categorically stated
that they have no any documents to show
that so much amount was gifted either to
Archana or Raghavendra in their respective
family functions. So, the main trumph card
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Spl.C.C. No.125/2009
of the accused is house properties which
according to him were constructed out of
lawful source to which he has to disprove the
case of the prosecution. Likewise, so far as
receiving gifts, which runs to lakhs of rupees
cannot be proved only on the basis of oral
evidence. Further there are no other
circumstance to connect it.
72. During the course of arguments, the
Learned Public Prosecutor submitted that
this AGO was highly irregular in submitting
his APRs to his higher authorities and for
some years he has not at all submitted his
APRs at all. Another grey area highlighted by
the Learned Public Prosecutor was that when
PW. 11 caused notice to AGO calling for his
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Spl.C.C. No.125/2009
explanation, no schedules were submitted to
him during the course of investigation or
after filing the charge sheet. Even when this
case was pending, the AGO made no
attempts to submit his schedules before the
Court. According to me, I find it a tenable
submission of the Learned Public Prosecutor,
because when the AGO claims that no
amount was ill-gotten, no property was
amassed by making use of the illegal money,
then he is at responsibility to show that all
his acquisitions and properties are through
known and lawful sources. What the law
expects is that the AGO must satisfactorily
account for. In this regard I am guided by the
principles laid down in 1993 Cri LJ 308
(SC); M.Krishna Reddy Vs. State of
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Spl.C.C. No.125/2009
Andhra pradesh wherein the Honble Apex
court held, "it is not mere acquisition of the
property that constitutes an offence under
the provisions of the Act but it is the failure
to satisfactorily acccount for such possession
that makes the possession objectionalble as
offending the law." Ratio is aptly applicable to
the case on hand. - But, having scanned the
materials, this Court has not noticed the
same. With this background, I would like to
discuss each item and each category of
movable and immovable properties.
ASSETS
73. The IO, PW. 11 has considered the TAC
value of the house building No.993, 10 th B
Cross, Nagapura, West of Chord Road,
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Spl.C.C. No.125/2009
Bengaluru as Rs. 20,63,000/-. According to
PW. 11, he has come to this conclusion on
the basis of detailed report furnished by PW.
7 by name Pranesh Kumar, who was the
Asst.Executive Engineer, Bengaluru. In his
examination-in-chief, he has spoken about
how he visited that property and also
submitted his Ex.P. 40 and 41, which are the
valuation reports in respect of that property.
Coming to the cross-examination of this
witness, the learned defence counsel could
not elicit anything except the fact that total
valuation of the building also includes 10% of
the contractor's charges. So far as what were
the other factors that has to be taken into
consideration in order to see that Ex.P. 40
becomes complete to which there are some
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Spl.C.C. No.125/2009
questions and suggestions. On the whole
when the evidence of PW. 7 is gone through,
there is nothing which can show before the
Court that evidence of PW. 7 is not reliable.
Coming to Ex.P. 40, which is the valuation
report in respect of the property under
consideration, this PW. 7 has considered the
year of construction, built up area in square
meters and also has taken into consideration
costs of evaluation as per S.R. schedule of
rates of building circle, Bengaluru. This PW.
7 comes to the conclusion that ground floor
which was constructed to that building was
in the year 1986-87 thats value is Rs.
2,21,500/-, first floor was constructed in the
year 2001-02 in a sum of Rs. 5,71,000/-,
second floor in the year 2003-04 in a sum of
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Spl.C.C. No.125/2009
Rs. 5,17,000/-, 3rd floor in the year 2003-04
in a sum of Rs. 6,64,500/-, Terrace room
with parapet in the same year which is
valued at Rs. 1,09,000/-. So, in all it comes
to Rs. 20,63,000/-. According to me, when
Ex.P. 40 and 41 are gone through, the break
up shown in this document which is a report
definitely stands corroborated on account of
the ocular evidence of PW. 7.
74. It is a settled law that so long as the
expert or the author of that
report/commissioner report does not enter
the witness box, does not give his
examination-in-chief and does not tender
himself for cross-examination, till then, his
report cannot be accepted in the eye of law.
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Spl.C.C. No.125/2009
When this Court takes the help of PW. 7's
ocular evidence and his opinion by way of
written of Ex.P. 40 and 41, definitely it is for
the purpose of appreciation as per Sec.3 of
the Indian Evidence Act. Now, the accused
who had taken up many contentions that
Ex.P. 40 and 41 cannot be accepted,
because, there is no whisper in respect of
what were the constructions materials when
those three floors were constructed, that
report is silent as to whether it was
constructed under self supervision or
whether contractor was entrusted with this
work. So, according to him, this Ex.P. 40
and 41 are got up for the purpose of filing
this charge sheet, of course usual
contentions in this type of disproportionate
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Spl.C.C. No.125/2009
assets cases are that prosecution invariably
inflates the rates of assets and shows the
expenditure on the higher side and when it
comes to income, it will be on lower side only
to see that net amount or the residue to be
treated as disproportionate asset. Having
said so, this accused has invited the burden
of disproving before the Court that Ex.D. 40
and 41 cannot be accepted as gospel truth.
In this regard, when the evidence of DW. 38
is gone through, he has reiterated the fact
that before he could commence the
construction of the said building, that site
was gifted to him by his father-in-law, but to
substantiate the same, there are no
documents. In this regard I rely upon a
decision reported in AIR 2002 SC 486 -
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Spl.C.C. No.125/2009
Punjab rao Vs. St. of Maharastra- wherein
the Hon'ble apex Court held; "in case
accused gives an explanation for
accepting illegal gratification he has not
to prove it beyond all reasonable doubt
and can establish it by preponderance of
probablities." Of course, Ex.P. 40 and 41
rates are excluding the sital value. PW.11
has not taken into consideration the sital
value of item No.1 of the asset. Otherwise,
the real value could have touched the sky.
75. Coming to the examination-in-chief of
DW.38 1 having spoken about the fact that
according to his calculation, the true value of
item No.1 of assets according to him stands
at Rs. 3,55,000/-. So according to him, the
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Spl.C.C. No.125/2009
difference amount is only Rs. 17,08,000/-.
But, in the cross-examination of this DW. 38,
this witness ultimately surrendered by giving
some admissions which show that there are
no materials placed by him to show that
either the construction materials were very
low or that he undertook the construction of
the said building under self supervision.
Some of the admissions are extracted as
under:
"In the year 1990, I took
construction of second floor. ... I
cannot say the total construction
cost of the second floor, I cannot
say about the rental income,
advance amount received from the
tenants and the loan borrowed
from the others without looking
into my documents. I am not
remembering the date of electricity
connection taken to my second
floor."
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Spl.C.C. No.125/2009
Other admissions given by him touching his
properties is as below:
"I constructed the third floor in
the year 1993-94. It is true that, I
constructed the third floor without
obtaining the permission from
BDA ... I cannot say as to how
much amount I spent for
construction of third floor of my
building, but I spent total amount
of Rs. 3,55,000/- for the
construction of entire building. I
constructed the third floor of that
building out of the rental income,
advance amount of ground floor,
first floor, second floor, my salary
income, agricultural income and
hand loans". This definitely will not
suffice the requirement.
76. In order to get himself supported, this
witness relies upon the evidence of the
approved valuator by name D.Nagaraj who
has been examined as DW. 28. According to
this expert, he was working as the approved
valuator and he knows the accused since
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Spl.C.C. No.125/2009
many years. On 2nd January 2009, he visited
some of the properties of the AGO and his
family including the property situated one at
West of Chord Road. According to this
witness, in the year 1985-86, the AGO
constructed ground floor of house at No.993
and first floor in the year 1988-89 and
through this witness, report given by one
Mr.Gundappa and this witness has been
marked at Ex.D. 51. So, one thing is clear,
the person who is said to have inspected the
the present property is one Gundappa, he
has not come before the Court, instead, DW.
28 is before the Court. Ex.D.51 is to show
that how how that property was valued for a
sum of Rs. 3,55,000/-. In this regard, cross-
examination of this witness is really
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Spl.C.C. No.125/2009
interesting. There are some of the admissions
which only goes to show that as
Mr.Gundappa is his colleague, some
valuation work they took jointly in the
instant case, Ex.D. 51 is exclusively signed
by Gundappa, but covering letter and his one
signature on the document is signed by him
symbolically. There is a candid admission of
this witness that they require
commencement and completion certificates
so far as they undertaking valuation work is
concerned. When Ex.P. 40 and 41 were
confronted and some questions were posed,
this witness virtually had no answer and
gave evasive answers which is extracted as
under:
"I cannot say why there is
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variation of one lakh and odd in
between my report and PWD
engineer report of PW. 7,
appearing in Ex.P. 40. Since the
measurement of that property at
27-1C in the statement submitted
by the accused along with his 313
statement, I cannot say as to
whether the estimate cost of that
building stated as Rs. 5,33,000/-
is correct or not".
77. Likewise, there are other admissions
which clearly go to show that the AGO has
constructed different floors in that building
in different years and further according to
this witness, he does not know the valuation
of the entire building. So this entire evidence
of DW. 28 on comparison with Ex.D. 51
instead of helping this Court has only raised
many unresolved questions. So, the excess
amount claimed that when the first item of
the assets is hardly Rs. 3,55,000/-, PW. 11
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Spl.C.C. No.125/2009
was wrong in taking its value at a higher
rate.
78. Coming to Ex.D. 51, it is the report
issued under the heading of Pradeep
Associates signed by one D.Gundappa of
Davanagere. When this Ex.D. 51 is gone
through, some of the break ups and the
specifications under different categories
which are mentioned there has to be proved
by the AGO and this cannot be done only on
the basis of evidence of DW. 28 and Ex.D. 51.
But the very fact that there is no any
acceptable explanations from the AGO as to
why he did not submit his schedules to PW.
11 at the time of his investigation, even after
filing the charge sheet why they were not
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Spl.C.C. No.125/2009
submitted, is the matter to be taken note of.
Other than that, as I have already discussed
earlier, this DW.38/AGO has not filed the
APRs regularly. Now his higher authorities
have initiated any action for not filing the
APRs is immaterial for deciding as to what
was the value of item No.1 of the assets. So,
looked from any angle, the claim of DW. 38
that, that item's value was Rs. 3,55,000/-
cannot be acceptable at all. On the other
hand, when that property No.993 which has
got ground and 3 floors, that itself suggests
that it is not only palacious, but heavy
investment has taken place from the side of
the AGO. Even in his Ex.D. 1, the
specifications like type of wood, nature of
flooring, electrical and sanitary fittings which
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Spl.C.C. No.125/2009
were used, quality of sand, brick and
whether it is a brick or pillar construction to
which some aspects are wantonly silent.
Under these circumstances, Court accepts
the oral and documentary evidence of the
prosecution especially PW. 7, PW. 11 and
Ex.P. 40 and 41. Hence, the TAC value of
item No.1 i.e. house No.993 of West of Chord
Road is considered in a total sum of Rs.
20,63,000/-.
79. Coming to the another item of the
property which is the building No.54 of
Battarahalli, according to PW. 11, he has
valued this property in a total sum of Rs.
25,71,000/-. Coming to the contention of the
AGO, he conveniently has valued this
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Spl.C.C. No.125/2009
property in a sum of Rs. 13,28,000/- and
according to him, the difference amount will
be Rs. 12,43,800/- and he also puts it to
convince before the Court that this major
difference amount in considering the real
value of the immovable properties has
resulted in unnecessarily inflating the price
of the of assets only to see that charge sheet
is filed against him.
80. So, far as this valuation is concerned,
when the evidence of PW. 7 and Ex.P. 40 are
taken into consideration, the expert who
visits the property has given the break-ups
at Ex.P. 40 to show that by considering the
schedule of rates for the relevant year, he has
considered this amount as Rs. 25,71,000/-.
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Spl.C.C. No.125/2009
The very important aspect is, this property
admittedly according to the AGO stands in
the name of Smt.Saraswathi, wife of the
AGO. For the reasons best known,
intentionally DW. 38 has not examined his
wife before the Court. All along DW. 38, his
son Raghavendra, daughter Archana or his
brother appeared before the Court one by one
and given evidence only to lend support to
DW. 38 and not Smt.Saraswathi. It is also
the admitted fact that except Smt.Saraswathi
being the house wife, she had no any
independent source of income. There are
major contradictions found in the evidence of
DW. 38 because on one hand, he claims that
his wife had no independent source of
income, on the other hand, he says he is able
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Spl.C.C. No.125/2009
to acquire those properties on account of the
rents received by him and ultimately, he says
that Smt.Saraswathi was managing all these
property affairs. But, none of these aspects
have been proved with clinching evidence.
The evidence of DW. 38 when is gone
through, it can be safely said that the basis
for him to bank upon Ex.D. 52 and 53 and to
contend that this property No.54 of
Battarahalli was only valued at Rs.
13,28,000/- has no locus standi at all. On
the other hand, DW. 38 repeats that he has
obtained loans from Can-Fin Homes, from
his department, KGID loans and also some of
his relatives have helped him by advancing
the hand loans. But, the witnesses
examined by him, who are the relatives of
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Spl.C.C. No.125/2009
this AGO, they were only content with
marking of their respective affidavits as the
documents before this Court and in the
respective cross-examinations, these relatives
of DW. 38 admitted that, but for their self
proclaimed affidavits, they have no any other
independent documents. So, one thing is
sure that only to see that the efforts under
taken by the prosecution in proving the items
of the assets and expenditure are not done,
this AGO by under quoting the property
prices has given the evidence of his relatives
who are the interested witnesses, who have
no any documents in that regard.
81. Likewise, this DW. 38 has examined
plumber, person claimed to have supplied the
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Spl.C.C. No.125/2009
construction materials, person claiming to be
a contractor, etc. and their general evidence
is that as and when the accused required
their services, they have rendered it on
professional basis. This type of general
evidence only to support the stand that
construction on different sites at Bengaluru
were under taken by the AGO and his wife
purely out of their hard earned money is
unfounded.
82. I have already made it very clear that if
at all, DW. 38 claims that he was able to
acquire sites and put up buildings, different
stories at different point of time only on
account of rents received by him also has no
basis at all. Because, if items No.1 and 2 are
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Spl.C.C. No.125/2009
purchased out of the ill-gotten wealth, there
is no question of giving a lawful colour to the
income generated out of their building as
lawful source. For these reasons, the assets
and expenditure of the AGO and his family
are on higher side.
83. This DW. 38 has pinned his hopes
exclusively on DW. 28 by name Sri.Nagaraj,
who is an approved valuer in respect of Ex.D.
52 and 53. So far as item No.2 is concerned,
the relevant document is Ex.D. 52 and this
witness in his cross-examination gives
admission that when he undertook Ex.D. 52
work, he had no completion certificate in his
hand. It is also admitted by this witness that
Ex.D. 52 is issued by one Gundappa, but, as
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Spl.C.C. No.125/2009
he has not entered the witness box and in his
place, this witness has appeared and this
type of ocular evidence to support the
Commissioner Report given not by the author
will have to be evaluated in a very stricter
sense. Some of the admissions of DW. 28 is
extracted as under:
" If the valuation of that property
is determined by considering the
standard Rate of 1998-99, its
value will be more. ... I do not
know the fact that Gundappa has
estimated the value of that
property as Rs. 13,00,000/-. It is
true that at the time of
construction of all the buildings,
this accused was serving in police
department."
84. Likewise, when Ex.D. 52 in particular is
gone through, it does not lend support or has
not uprooted the evidentiary value of Ex.P. 40
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Spl.C.C. No.125/2009
or that of PW. 7.
85. This DW. 38 has examined some of the
persons connected with construction and to
begin with, that of DW. 18 by name
Belliyappa, who claims to be running a
Hallow bricks manufacturing unit at
Venkatala near Yelahanka in the name and
style of the Padmavathi Transport. According
to this person, the accused at that relevant
point of time, has purchased materials worth
Rs. 2,01,950/- and he has issued a credit
bill. Through this witness, Ex.D. 39 came to
be marked. But, in the cross-examination,
the cat has come out of the basket. It is the
admission of this witness, which is extracted
as follows:
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"It is true that no documents
are prosecution before the Court
to show that I am doing hallow
bricks and jelly sales".
This is the quality of the evidence which DW.
38 has let in, in this case.
86. Coming to the evidence of DW. 17 by
name Sri.Chandramouli, according to him,
he was the Accountant at Lalith Associates,
who were the dealers in pump set
distribution. Through this witness, Ex.D. 38
came to be marked. According to this person,
the AGO has purchased pump set from their
business concern. But, in his cross-
examination, according to him, Ex.D. 38
amount was not paid by the AGO
immediately and after two years, it was paid.
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Spl.C.C. No.125/2009
But, in the cross-examination, the answer
given is quite opposite to what he deposed
which is as follows:
"I am not remembering as to
on what date we received the
amount mentioned in Ex.D. 38,
but I am remembering that we
received that amount in the year
2008. We have no any receipt for
having received that amount.
This accused has not paid that
amount for 2 years. During the
said two years, we have not
issued any notice or letter to the
accused requesting him to pay the
due amount . This accused has
borrowed two HP Pump set motor
for installing to a bore well drilled
over his site."
Again this evidence looks more tutored one
to suit the convenience of the accused.
87. Coming to the evidence of DW. 14 by
name Nagarajaiah, according to him, he was
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the Carpenter and he has attended to
carpentry work for making doors, windows
and furniture of the AGO. Again in the cross-
examination, the admission of this witness
is, " I am not possessing any documents
with me with rgard to the work of the
accused house attended by me and for
having received my wages from him". On
similar notes, the evidence of DW. 7 by name
Sujatha Uday Kumar is to show before the
Court that her husband when alive had paid
hand loan of Rs. 3,75,000/- to the AGO for
the purpose of putting up construction.
Through this lady, bank statement is marked
at Ex.D. 28. But, in the cross-examination,
the real truth has come out, which is
extracted as below:
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" I do not know about the door
number of that house said to have
been constructed by the accused.
... I have not obtained any receipt
or document from the accused for
having paid the amount of Rs.
1,75,000/- to him. ... There are no
documents to show that my
husband paid an amount of Rs.
2,00,000/-to this accused. In
respect of payment of amount of
Rs. 1,75,000/- by my husband's
younger sister to this accused,
there are no documents."
88. So, nothing more is required to cull out
the evidence of the accused to show that he
is blowing hot and cold only to save his
property. At no stretch of imagination, the
accused can contend that in spite of the fact
that he has not produced schedules either to
the PW. 11 or before this Court to show that
the IO has improperly conducted the
investigation. It is not merely the reply or the
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Spl.C.C. No.125/2009
answer of the accused is called for and that
must be satisfactorily to the IO. Under such
circumstances, the prosecution has proved
that so far as item No.1 i.e. property No.54
of Battarahalli is Rs. 25,71,000/- and not Rs.
13,28,000/-. If according to the accused, the
prosecution has to prove the guilt of the
accused beyond reasonable doubt and even
though this principle is not applicable to the
accused, even then the principles of
preponderance of probabilities demands that
their evidence must be so much clinching
that the Court has to accept it as a rebuttal
evidence. In the instant case, the accused
has completely failed in that regard.
89. So far as assets at items No.27-2-b to
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27-3-d-6 and 27-4-c are undisputed. So far
as 27-1-c- i.e. item No.3 of the assets,
property No.86, Bhattarahalli, Bengaluru,
construction of compound wall to site
No.1910, Srigandadakavalu, 'D' Group
employees co-operative society are
concerned, again the dispute is in respect of
their TAC values. The only available
documents of the AGO is his evidence at DW.
38, Nagaraj Valuer's report at Ex.D. 50 to 53
and D.90 and his evidence at DW. 28 and the
evidence of those witnesses whom I have
referred in my above discussion who claim to
have supplied building materials. So far as
the relatives who claimed to have lent money
for the purpose of alleged construction of the
properties are concerned, they have no
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documents, but their self serving affidavits
which also have been marked. So far as
Ex.D.1 to 7 are concerned, they are in
respect of sanctioned plan to properties at
the West of Chord Road, Thambuchetty
palya, Battarahalli and no more. The IO has
not disputed that the properties were not
constructed after obtaining the sanctioned
plan from the competent authorities.
According to me, the DW. 38 being the public
servant initially joined as the Sub-Inspector
rose up to the level of Superintendent of
Police has failed to show before the Court
that in spite of taking into account the help
from the financial institutions, relatives, how
he could construct properties which run to
several lakhs about few decades back and
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now they are few crores.
90. The learned counsel for the accused
highlighted the aspect that mere marking of
the documents is no proof of the same and
intentionally PW. 11 and 7 have considered
construction rates not of the relevant year,
but schedule rates have been taken of
different years. Hence, there is a huge
difference. In spite of this aspect even
though, it is not all that right equally, when
the evidence of DW. 28 and Ex.D. 50 to 53
and 90 are gone through, they also don't give
correct picture.
91. It is a usual stand on the part of the
accused that all the immovable properties
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constructed were under self supervision.
But, DW. 38 has failed to convince before this
Court that when he was a full time public
servant, how he could have devoted his time
for construction of immovable properties.
Likewise Smt.Saraswathi, the AGO's wife had
no any independent source of income, but
DW. 38 claims that from the rental incomes
generated out of his property many other
properties were acquired. But to substantiate
this aspect, this DGO has not filed APRs for
each financial years. In fact, it is admitted
by the AGO himself that he was not regularly
filing the APRs. Whether his higher
authorities have taken action or not in this
regard is secondary. But, there is no material
to form an opinion that all that acquisitions
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and construction of buildings which consists
of many tenements were out of his hard
earned money. There were some of the
admissions given by DW. 38 which I would
like to extract which only shows the
investments made on the properties either
for purchase of sites or for construction was
not on account of hard earnings of the AGO.
They are as under:
" It is true that my wife is a
housewife. ... I have not produced
any documents before the Court
about the income of my wife.... It
is true that site bearing No.54 of
Bhattarahalli, K.R.Puram was
purchased for a sum of Rs.
40,000/- in the name of my wife.
... I do not know the fact that on
10-02-1998 my wife borrowed a
loan of Rs. 5 lakhs from Canfin
Homes. I do not know the fact that
on 10-02-1998, my wife borrowed
a loan of Rs. 5 laksh from Canfin
Homes. I do not know the fact
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Spl.C.C. No.125/2009
that on 15-03-2004 my wife
borrowed a loan of Rs. 2 lakhs
from Canfin Homes."
92. The fairness on the part of the AGO also
requires to be doubted for more than one
reason. If Smt.Saraswathi had really an
independent source of income, nothing
prevented the AGO approaching this Court
and to give her evidence, but intentionally
she has not been examined and there seems
to be suppression of material facts in this
regard. Now, if the evidence of PW. 7 and
PW. 11 has to be either doubted or discarded
on the ground that they do not project or
depict correct picture in respect of assets of
the AGO. Then there must be such
documents. The only work which the AGO
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Spl.C.C. No.125/2009
seems to have done is to examine witnesses
one by one to disprove the case of the
prosecution but to which there is no
documents at all. When Ex.D. 50 to 53 have
not attained finality as the authour
Sri.Gundappa has not entered the witness
box, not subjected himself for cross-
examination, I don't think the Court can
form any opinion on the basis of those
Commissioner's report.
93. During the course of arguments, the
Learned Public Prosecutor submitted that
this Gundappa is the regular valuer to all the
accused where the Lokayuktha files charge
sheet for the offences punishable under
Secs.13(1)(e) and 13(2) of Prevention of
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Corruption Act, 1988. She went on to further
submit that the valuation report is a
cyclostyled one only with minimum changes,
such as property number, its address or
place and measurements. In the instant case
also, the said report, it is baseless. As the
said report has not been further corroborated
and I have not come across any other
document other than that. Some of the
documents referred at Ex.D. 50 to 53 are not
supported with any other documents at all.
Mere oral say of any witnesses can not show
that they were all that right and reliable.
Likewise, it is admitted by DW. 28 that when
he came for giving evidence or when he
signed some of the reports as a joint valuer,
he was not provided with completion
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Spl.C.C. No.125/2009
certificates. Same thing stands true for even
for construction of the compound wall also.
According to me, when DW. 38 says that PW.
7 has involved in guess work, I have no any
hesitation in answering that even the
evidence of DW. 28 and Ex.D. 50 to 53 are
not on better footing. Under such
circumstances, the rate quoted by the IO in
his charge sheet at that rate has to be
accepted.
94. Likewise, so far as the last disputed
items i.e. value of gold jewels and silvers are
concerned, the IO has not assessed or given
its rate. But, coming to the household
articles, which are at Sl.No.27-4-a, according
to IO, it is in a sum of Rs. 4,10,631/-. This
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Spl.C.C. No.125/2009
also has been disputed by the AGO on the
ground that this has been badly inflated.
DW.38 went on to submit that the IO has not
taken into consideration the presents
received by him from various relatives and
friends. According to this DW. 38, none of the
witnesses have acknowledged the same, even
Ex.P. 2 panchanama has not been proved.
According to me, in order to discard
household articles which were only valued at
Rs. 1,20,000/-, there is no material at all.
On the other hand, Ex.P. 2 stands proved on
account of the mahazar witnesses PWs. 2 to
the fact with consistency that search took
place at AGO's premises in their presence, IO
by holding consultation with family members
and also bringing to their notice, prices were
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Spl.C.C. No.125/2009
fixed. So, this evidence and stand is more
reliable. It is seen from the records that
during the course of investigation, when the
IO had completed the search and seizure,
had secured some of the documents,
immediately he issued a notice calling upon
the accused to furnish his schedule. But, in
spite of the same, this DW. 38 did not come
forward to either put forth his explanation or
his schedules. Some of the admissions given
by DW. 38 is extracted as under:
" It is true that, after raid on my
properties on 03-11-2007 and
during investigation, the IO issued
4 notices on 9-11-2007, 13-02-
2008, 25-11-2008 and on 05-01-
2009 to submit my schedule 1 to
23. Witness volunteers that, he
has received only one notice. ... It
is true that my schedule is not
produced along with the charge
sheet. Witness volunteers that
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though he had been to submit his
schedule, the IO did not receive
the same.... It is not true to say
that in the inward sectionof
Lokayukta they use to accept all
the papers produce before them.
... It is true that, I did not produce
the said 5 volumes schedule before
the Court after my appearance
before this Court."
95. So, when this is the correct picture,
definitely it will not lie in the mouth of DW .
38 to contend to the contrary. Even
assuming for the sake of arguments, that the
prices quoted by the IO in respect of
household articles are incorrect, when this
DW. 38 himself has stated them to be in a
sum of Rs. 1,20,000/-, he can as well give
the break ups, but when the entire evidence
of DW. 38 or his family members are looked
into, there is no piece of material which show
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Spl.C.C. No.125/2009
that valuation under taken by the IO in
coming to the conclusion in a total sum of
Rs. 4,10,631/- was wrong.
96. Another important aspect is the list
enclosed with Ex.P. 2 i.e. different items have
not been disputed. Under such
circumstances, the quoted value of them by
the IO in a sum of Rs. 4,10,631/- looks more
realistic and acceptable. According to me,
PW. 11 with the help of Ex.P. 1, FIR, Ex.P-14
and the documents discussed supra has
shown that for the check period, the total
assets of th accused was in a sum of Rs.
81,92,997-27ps. The calculation under taken
by the AGO was not proved and as he rightly
set the prices of the immovable properties
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and their value depends upon the correct
valuation which also includes furnishing of
all documents i.e. the commencement and
completion certificates. When Ex.D. 50 to 53
and D.90 are gone through, they have not
conveyed that Ex.P. 40 and evidence of PW. 7
are untrustworthy. Accordingly, I accepted
the calculation furnished by the PW. 11 in
respect of the assets as correct.
EXPENDITURE
97. The claim of PW. 11 that the expenditure
of the AGO and his family totally comes to
Rs. 34,44,798-43 is concerned, I should say,
the AGO for most items of the expenditure
has admitted the same. Except the major
expenditure, this AGO has not disputed. The
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admitted items on the part of the AGO are
28-7-a and 28-2-c, 28-2-d to 28-7-a and
from 28-6-a to 28-18-d of the list provided by
the IO in his charge sheet. That means to
say, in respect of stamp and registration
charges, tax paid in respect of immovable
properties at West of Chord Road, Site No.13
of Hosur Road, Electronic City water
connection deposit, electricity connection
deposit, expenditure towards Cooking gas
connection, telephone expenditure,
Membership fee paid to the Bengaluru City
Police Housing Co-operative Society Ltd.,
plan approval expenses of the West of Chord
Road property, repayment of loan to Canfin
Homes Ltd., Bhavasar Kshathriya Co-
operative society, HUDCO Bank,
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Spl.C.C. No.125/2009
Vishweshwaraiah Co-operative Bank, SBI
West of Chord Road branch have not been
disputed. So, this Court will have to check
only the disputed items by the accused of the
expenditure. In this regard, the major
expenditure shown by the IO is at Sl.No.28-1
i.e. the domestic expenditure of the AGO and
his family members during the check period.
According to PW. 11, it is only Rs.
5,41,601/-, but according to DW. 38, it can
only be Rs. 2,31,601/- and intentionally PW.
11 has inflated the rate, so the difference
amount which could be seen in the naked
eyes Rs. 3,10,000/-.
98. It is the version of DW. 38 that even
though PW. 8 by name Jayadev Prakash, who
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Spl.C.C. No.125/2009
is the Joint Director of Statistics has given
his opinion at Ex.P. 44 that is incorrect. The
plausible explanation offered by the DW. 38
is that from the year 2003 and 2007 both the
sons of the AGO by name Raghavendra and
C.S.Jajadish, they started earnings and they
were contributing to the family expenses and
though PW. 8 vide his letter dtd.25-05-2009
was requested to recalculate the family
expenditure by the PW. 11, but PW. 8 has not
undertaken that work very seriously. It is
the grievance of DW. 38 that as he was
growing agricultural products such as rice,
ragi, coconut, vegetables, etc. obviously his
expenditure towards family expenses will be
less. But, this aspect has not been very
seriously and meticulously considered by PW.
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Spl.C.C. No.125/2009
11.
99. Let it as it may, but when the evidence of
PW. 8 by name Jayadev Prakash is looked
into, he was asked to furnish the food
expenditure of the AGO and his family
members for the check period 01-01-1987 to
03-11-2007 and very important aspect is
Ex.P. 44 is not as though it has no basis,
because this PW. 8 in his examination-in-
chief makes it very clear that while preparing
Ex.P. 44, he has relied upon the pay
commission report and the year wise State
Consumer Price Index then, has to taken into
consideration the probable expenditure.
Another beauty of this examination-in-chief,
this Court on its own suo-moto has posed
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Spl.C.C. No.125/2009
some questions to this witness and according
to this witness, for preparing Ex.P. 44, he
has taken into account the per capita income
and the per capita expenditure. Likewise, in
the cross-examination, again this Court has
posed suo-moto question and elicited an
answer that this PW. 8 has also considered
average National sample report and has come
to Ex.P. 44 conclusion.
100. Further, this PW. 8 makes it very clear
that this Ex.P. 44 was purely in respect of
vegetarian diet and not the other way
around. An expert who claims to be with
special knowledge has placed Ex.P. 44. Even
on going through Ex.P. 44, each page which
is a statistical information and it is a
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Spl.C.C. No.125/2009
compilation of many of the reports which are
discussed above. If at all according to DW.
38, the IO has not taken into consideration
the salary of DW. 19 and DW. 37 who are his
sons. To form a right opinion in respect of
food expenditure, he is called upon to state
with accurate statistics. But for the reasons
best known, the entire defence of the AGO is
nothing but cat sitting on the fence.
101. In the entire evidence of DW. 38, he has
consistently canvassed that he was getting
regular agricultural produce. Of course, in
this regard, he also got examined DW. 16
Dr.Mallappa, but point for consideration is
whether these crops according to him which
were claimed to be yield have been made use
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Spl.C.C. No.125/2009
of by the AGO family or not is a question. My
answer to this question is, no, because, none
of his family members either DW. 19, 36 or
37 have whispered in their respective
evidence that they were consuming the
agricultural produce for their personal
consumption and no provisions were bought
or purchased. Even his two sons DW. 19 and
36's evidences when are gone through, they
are silent in respect of this crucial aspect.
Why even, for the reason that this DW. 38
either in his chief or in his cross-examination
has not given evidence that what was the
quantity of agricultural produce that was
consumed or meant for internal consumption
and what quantity was sold at the respective
APMCs. Under such circumstances, the
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serious attempts made by DW. 38 either to
impeach the creditworthiness of the PW. 8 or
to defeat the contents of Ex.P. 44 has not
been successfully made. A word or two has to
be stated here that if at all the AGO is trying
to lay his hands to give both oral and
documentary evidence, it is only on
conjecture and surmises basis. Under such
circumstances, the expert report at Ex.P. 44
is to show that, that report is bereft of any
basis because there is no any clinching
material at all to support his contention at
all. Under such circumstances, the valuation
as offered by PW. 8 in Ex.P. 44 has to be
accepted. Accordingly, the version of AGO is
baseless. Hence, I considered domestic
expenditure of the AGO and his family in a
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total sum of Rs. 5,41,601/-.
102. Coming to another item i.e. 28-2-f, the
IO has considered the stamp and registration
charges for purchase of Site No.1910 at
Group-D Housing Society in a total sum of
Rs. 34,805/-. But, according to AGO, it is
only Rs. 30,805/-. This AGO has relied upon
the copy of the sale deed and also his APR.
According to me, PW. 11 has considered this
amount on the basis of the letter issued by
the competent Sub-Registrar, so a letter of
competent Sub-Registrar who furnished this
information cannot be found fault with,
because, it is not the case of DW. 38 that the
information collected by the IO from the
competent office or the official was in-
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correct. Hence, I consider the stamp and
registration duty or charges paid by the AGO
in a sum of Rs. 34,805/-.
103. Coming to another item i.e. 28-4-b-1, the
IO has considered the Electricity deposit and
usage for the house No.993, West of Chord
Road for the check period, according to DW.
11 it is Rs. 39,045/-, whereas according to
DW. 38, it is Rs. 22,740/-. It is the
explanation of the AGO that this expenses
were borne out of the rental advances and
rents in respect of three floors. But, so far
as this explanation is concerned, there is no
material placed by the AGO. But, again I
state that this amount is considered by the
IO is on the basis of the information provided
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by the concerned department. At a right
point of time, this AGO has not disputed the
same. Hence, I considered the same as
correct amount, which is furnished by the
AGO.
104. Coming to item No.28-7-A, which is the
expenditure incurred on Maruthi Omini van
bearing Reg.No.KA-02 P-6169, PW. 11 has
considered as Rs. 55,959/-, but according to
this AGO, his wife had purchased this vehicle
out of her own source of income and she has
borne all the expenses. Again I say that
intentionally Smt.Saraswathi's evidence is
not available. First of all, when this Court
has already held that she had no any
independent source of income as admitted by
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DW. 38, question of she purchasing this
Maruthi Van out of her own savings or
source will not arise at all. Even if
Smt.Saraswathi has received rents in respect
of different tenements i.e. on account of the
major investments made by the AGO in the
name of his wife and nothing else. Here this
explanation of the AGO cannot be accepted
at all. So, I considered this amount of Rs.
55,959/- of the expenditure of the AGO
himself.
105. Likewise, coming to another item No.28-
7-B Hero Honda Motor Cycle bearing
Reg.No.KA-02-J-3998, according to this AGO
as he was traveling in a Government vehicle,
the expenses is not to the tune of Rs.
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Spl.C.C. No.125/2009
25,550/-. But, according to the AGO he has
failed to give details as to from which
particular year to which particular year he
was provided with Government Vehicle. Quite
naturally, in the initial years of joining
service, there would not be any Government
vehicle. But, when the AGO only reached to
the post of SP or at the fag end of his service,
he might have been provided with
Government vehicle. But, this court is unable
to hold any discussion or come to the
conclusion, because, there is no any
material. So, in the absence any such
material placed by the AGO, the version of
the AGO in this regard has to be accepted.
Same yardstick applies to item No.28-7-c in
respect of expenditure incurred to Yamaha
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bike bearing Reg.No.KA-01 S-7650. So, I
have not accepted the explanation offered by
the AGO in this regard and I have considered
the expenditure offered by PW. 11 in a sum
of Rs. 3,640/-.
106. Coming to the major part of the expenses
towards educational expenses of children of
AGO, so far as 28-8 is concerned, the IO has
quantified in a sum of Rs. 93,869/-, but
according to the AGO it is only a sum of Rs.
45,786/-. According to this DW. 38, Ex.P. 69
which is the consolidated information
containing letters is with incorrect
information that cannot be accepted. But, to
uproot this Ex.P. 69 no any paper documents
placed by DW. 38. Under such
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Spl.C.C. No.125/2009
circumstances, so long as DW. 38 does not
come out with proper figures, the version of
PW. 11 has to be accepted.
107. Coming to the marriage expenditure on
the part of the AGO's family is concerned,
PW. 11 has given his statistics stating that
towards the marriage expenses of AGO's
daughter by name Archana, a sum of Rs.
2,50,000/- was spent. This was strongly
refuted by DW. 38 on the ground that hardly
it was Rs. 11,500/- as the entire expenses
came to be borne by the in-law of DW. 36. It
is also the claim of DW. 38 that the PW. 11
has not produced any proof to show that a
sum of Rs. 2,50,000/- was spent by this
AGO. According to this person, as no dowry
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was demanded, no dowry was given. So, it
was more or less it was a simple function,
hence, they had to bear only the minimum
expenses in a sum of Rs. 11,500/-. The right
person who can speak about this was the
father-in-law of DW. 36. But, there is no
piece of material to form an opinion that
whether he is alive or not, if he is alive what
prevented to DW. 38 to get him examined.
No doubt, initial burden is on PW. 11 to show
that how it was Rs. 2,50,000/-. Apart from
that, when DW. 38 has strongly opposed this
say of PW. 11, there should have been some
material on his part also. But, in the instant
case, when the contradictions found in the
evidence of DW. 36 to 38 are looked into, it
can be safely said that DW. 38 for the
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purpose of this case is blowing hot and cold.
108. Coming to the evidence of DW. 36 by
name Archana and according to her, in the
month of December 1998, her marriage was
solemnized with one Narendra from
Bengaluru and she reiterates that her
marriage expenses were met out by her in-
laws. It is also the claim of this lady that her
husband was a Software Engineer with Wipro
Technologies and that she received
presentations in the form of cash to the tune
of Rs. 80,000/- from her friends, cash of Rs.
50,000/- from her relatives. But, in the
cross-examination, there are strange
admissions given by this lady, which raised
eyebrows as to the contentions taken up by
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her father DW. 38. Some of the admissions
given in her cross-examination are extracted
below:
" Personally I do not know about
my marriage expenses. I do not
know as to whether we have spent
minimum sum of Rs. 3 lakhs
towards our marriage expenses. ...
My marriage is a arranged
marriage. I do not know as to in
whose name our marriage hall was
booked. I do not know the fact
that it was booked in the name of
my father. ... I do not know the
fact that the finance condition of
my father is far better than my
above said three uncles or not."
109. According to me, this lady is giving
evidence against the documents especially
that when the marriage hall was booked by
DW. 38 that document was not produced by
the AGO before the Court which according to
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Spl.C.C. No.125/2009
him in a way amounts to with holding of
material document. To this aspect, the
learned counsel for the defence in his written
arguments by relying upon plethora of
decisions cited that the accused is not duty
bound to prove the statement of imputations.
But, on the other hand it is the prosecution.
No doubt, this cardinal principle is correct.
But, here is a different situation, where this
AGO disputes every aspect. In that scenario,
when he says that the IO was wrong then he
should be in a better position to place correct
and better documents, in this regard he has
failed to do so.
110. Coming to the evidence of DW. 37, he is
the last son of DW. 38 and this gentleman is
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Spl.C.C. No.125/2009
also very intelligent and conspicuously has
not touched the aspect of performing the
marriage of his sister either by her father or
in-laws. So, this move on the part of DW. 37
raises suspicion. Likewise in the cross-
examination of DW. 37, touching this aspect
there is a little help available to this Court to
show that it was not DW. 38, but it is the in-
laws of DW. 36 who performed her marriage.
111. Likewise, coming to the evidence of DW.
19 by name Jagadish, he is the son of
DW.38. I should say he has not touched
those aspects which really because of
concern to the accused, because, on one
hand DW. 19 and 37 claimed that they were
earning members of the family were caring
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after completion of their eduction, but have
failed to show before the Court that how they
did the marriage of their sister was
performed.
112. Lastly coming to the evidence of DW. 38,
again in the examination-in-chief, this Court
has came across some stray evidence which
cannot show before the Court that his
daughter's marriage was performed by her
in-laws. Equally this DW. 38 also completely
failed in placing any material to show that he
did not spend marriage expenses. In the
cross-examination, the Learned Public
Prosecutor was able to show before the Court
having denied the evidence of PW. 11, this
DW. 38 intentionally failed to furnish
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Spl.C.C. No.125/2009
schedules prior to preparing of final report or
after the charge sheet, again he is trying to
avoid his responsibility by adopting skin
saving method, hence, the version of DW. 37
cannot be accepted. According to me, the
accused enjoys the benefit of preponderance
of probabilities. Firstly, he is called upon to
show that how the IO was incorrect, then
they must also prove before the Court that
what is the correct position. In the instant
case, the limited role of the AGO has only
ended up in attacking him casually, but not
placed those documents which are of much
help. Even now, so far as marriage expenses
of DW. 36 is concerned, none of them have
given break up as the said marriage has
taken in the year 1998. Considering the
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Spl.C.C. No.125/2009
social and economic status of the accused,
the rate one quoted by PW. 11 in a sum of
Rs. 2,50,000/- is more near to the truth and
not the one claimed by DW. 38 in a meager
sum of Rs. 11,500/-. There are cases where
the in-laws of a bride may perform her
daughter-in-law's marriage, but that is an
extremity or in some extraordinary
circumstances but this aspect is not pleaded
before the Court by DW. 38. Under such
circumstances, I have to accept that a sum of
Rs. 2,50,000/- which is the amount towards
the marriage expenses of DW. 36 was borne
out by DW. 38.
113. As I have stated, the rests of the items of
the expenditure have been squarely admitted
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Spl.C.C. No.125/2009
by the AGO and his family members. This
admission can also be on account of the fact
that they were spent towards LIC premium,
amounts spent towards obtaining passport
and repayment of loans. Under such
circumstances, the calculation in respect of
expenditure of the AGO and his family
members given by PW. 11 supported with the
reports has to be accepted in a total sum of
Rs. 34,44,798-43ps and the counter
contentions of the accused in this regard
have not been proved by him.
INCOME
114. The Investigating Officer, the PW. 11
has quoted a total sum of Rs. 75,77,471-
29ps. as the total income of the AGO and his
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Spl.C.C. No.125/2009
family members. In this type of
disproportionate asset cases, the only
trumph card on the part of the AGO is to
contend that intentionally IO has inflated the
rates of assets and expenditure and has
under quoted the rates of the income. In
this case, it is also the grievance of the AGO
that rental income, agricultural income, his
salary including surrender leave, DA given by
the Government from time to time and other
allowances have not been considered.
According to him, for the purpose of putting
up house construction at West of Chord
Road, K.R.Puram, Thambuchetti Palya and
Bhattarahalli, he has availed loans from his
department, housing Co-operative societies,
Canfin Homes Ltd. and hand loans from his
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Spl.C.C. No.125/2009
relatives and friends. These aspects in spite
of bringing the same to the knowledge of the
IO, he has not considered. Hence, there is
omission on the part of the PW. 11 in not
considering these incomes which has
resulted in PW. 11 coming up with a wrong
calculation so as to contend before the Court
that the total disproportionate asset was in a
sum of Rs. 40,60,324-41ps. which accounts
for 53.58%.
115. When Sec.13(1)(e) and 13(2) of the
Prevention of Corruption Act, 1988 (prior to
amendment), its interpretation is looked into,
the IO can come to the conclusion as to what
percentage of disproportionate asset the AGO
has amassed or made that is only after
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Spl.C.C. No.125/2009
considering the lawful sources. So what is
the meanings of expressions "known sources
of income" and "known source of property"
are elaborately discussed by the Hon'ble
Apex court in 2009 Cri.L.J 1767 (SC)
N.Ramakrishnan Vs. State of Andhra
Pradesh, AIR 2017 SC 2530 - Vasantha
Rao Guha Vs. State of Madhyapradesh
and 1996 Cri.LJ 1127 (SC) State of
Maharastra Vs. Piraji Kalpatri. First, the
IO has to calculate the lawful sources in
respect of assets, expenditure and income
only after deducting the total/sum of rupees
out of the assets and expenditure from the
total lawful income, only then the residue
will be unlawful income or the
disproportionate asset. Now, in the instant
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Spl.C.C. No.125/2009
case, after thorough evaluation of both oral
and documentary evidence placed by the
AGO, for the reasons best known this DW.38
has not furnished cogent materials by way of
reply to some of the assets acquired by him
and his family members so also in respect of
the expenditure. He only focuses and his
concentration is in respect of income and
nothing else.
116. The big vacuum which was earlier
created was in respect of Ex.D. 50 to 53 b
being incomplete. Out rightly, this DW. 38
rejected the report of PW. 8 Ex.P. 40 on the
ground that, that commissioner report is
baseless as he has not considered many
aspects of construction. Equally, he failed to
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Spl.C.C. No.125/2009
convince before the Court that Ex.D. 50 to 53
were complete and even though he has
examined the approved valuer Mr.Nagaraj
who was not the author of those documents
in fact one Mr.Gundappa has visited,
inspected and completed the work. So,
initially only there is a complete failure on
the part of the accused to disprove the
contention of PW. 11 that the construction
was from lawful source. As I have stated
earlier one Smt.Saraswathi who claims to be
the owner of some of the immovable
properties, according to DW. 38 who happens
to be his better-half who has received rental
income is also tight-lipped. If she were to be
fair she would appeared before the Court to
show how PW. 11 was wrong in not
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Spl.C.C. No.125/2009
considering the rental incomes. So according
to me, the construction of house properties,
receiving of rental income accounts for the
major lapse on the part of the AGO in not
disproving the contention of PW. 11.
117. Quite naturally, during the course of
arguments, the learned defence counsel
submitted that it is the IO who has to prove
the case beyond reasonable doubt and
burden is on him. It is undoubtedly true,
but here we have the AGO in this case who
inspite of receipt of notices has not submitted
his schedules/reply to the IO either during
the course of investigation or after filing the
final report or after submitting the charge
sheet. Likewise, it is categorically admitted
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Spl.C.C. No.125/2009
by DW. 38, he has not submitted his APRs
and ITRs to the concerned authorities in
time. So, these major laps have only added
fuel to the fire.
118. There is no clarity forthcoming in
respect of how can the AGO consider the
income of Archana, his daughter DW. 36
after her marriage. Likewise, so far as DW.
37 his son Raghavendra is concerned, there
is no clarity as to whether he was
contributing to the income of the family of
the AGO or was living separately, because,
from his ocular evidence there is nil material
which is of any help to the Court. Under
such circumstances, I am of the considered
opinion that this is not a fit case where the
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Spl.C.C. No.125/2009
AGO can enjoy benefit of doubt. With this
background, now I would like to discuss
further.
119. So far as Sl.No.28-1 of Income shows in
the charge sheet is looked into, it is the
salary of the AGO, where IO has considered
the same to be Rs. 15,21,943/- and
according to the AGO, it is only Rs.
16,78,820/- and according to him, there is a
difference amount of Rs. 1,56,877/-. Again
when the entire evidence of DW. 38 is gone
through, inspite of taking into consideration
the contents of Ex.P. 102 and 103 are
concerned, the Court is not convinced,
because in the further cross-examination of
PW. 11, the defence counsel has posed a
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Spl.C.C. No.125/2009
suggestion to this IO that he should have
considered the salary of the AGO even prior
to the check period. According to me, this
may not be the correct position of law.
Under such circumstances, even giving
margin to Ex.P. 102 and 103 that they were
the documents secured by PW. 11 in all
fairness, the salary and other perquisites of
the AGO during the check period will have to
be accepted. Hence, I deem it proper to
consider only Rs. 15,21,943/- and in this
regard PW. 11 stands correct.
120. Another disputed income which of
course not considered by the PW. 11 is the
agricultural income claimed by DW. 38 in a
sum of Rs. 5,27,023/-. Here, this aspect
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Spl.C.C. No.125/2009
looked to me very ticklish. It is because,
admittedly the AGO is a public servant. It is
also the evidence and admission of DW. 38
that even though his parents had their
ancestral properties at Devarayasamudra of
Mulbagilu Taluk and those properties came
to him as his brothers have relinquished
their right of share over those properties.
But, in the cross-examination of DW. 38
there is an admission that there is no
document in the form of relinquishment deed
or he has failed to place any documents to
show that such relinquishment of share of
their brothers has taken in his favour. So,
claiming that entire agricultural income he is
entitled to falls to the ground. This DW. 38
pins hopes on evidence of DW. 13, who spoke
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Spl.C.C. No.125/2009
about the agricultural income and also relies
upon Ex.P.155 and 156. According to me, if
the IO during the course of investigation
secures all the documents in respect of
various aspects, what he has to show before
the Court is that having considered them as
they are not fit to be taken into account for
calculation for valid reasons, he need not
consider the same. So, the arguments on the
part of the accused is that in spite of
evidence of PW. 30 and Ex.P. 155 and 156,
IO has not considered the agricultural
income of the AGO in a sum of Rs.
5,27,023/-. Here, the catch is that as there
are no documents suggesting that this AGO
had become exclusive owner of those
properties, cultivation was done under his
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Spl.C.C. No.125/2009
supervision. Hence, he had a regular
proceeds. Very interestingly, this DW. 38
apart from referring the same in his ocular
evidence did not dare only to place any APRs
or ITRs in this regard. DW.38 has also
examined his Chartered Accountant in this
case, but his evidence is in no use of at all.
Under such, circumstances, the so called
agricultural income claimed by the DW.38 in
a sum of Rs. 5,27,023/- cannot be taken into
account for calculation at all.
121. This AGO has given certain admissions
that he is not disputing some of the items of
income which are at Sl.Nos.29-5-a to 29-5-k,
29-6-a to 29-6-e. So, I deem it proper not to
hold any discussion in respect of them.
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122. According to PW. 11, he has considered
the rents obtained from the House No.993 of
Rajajinagar by the AGO in a total sum of Rs.
8,10,329/-, whereas according to the AGO, it
is a sum of Rs. 32,24,073/-. Here is the
major difference amount is Rs. 24,13,744/-.
The explanation offered by DW. 38 is that
this rental belongs to him. He received them
by way of cheque, Demand Drafts, cash and
he places his reliance on pass book which is
found at Ex.P. 46. Now, according to me,
when the evidence of DW. 38 is looked into,
again this aspect has been referred by the
AGO, but what he has not answered is that
whether this total sum which he claims was
his earnings during the check period or not.
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Spl.C.C. No.125/2009
Further more, some tenants have also been
examined and they go on to depose that there
was a periodical enhancement in the rent
and also spoke about executing lease
agreement either in favour of this AGO or his
wife.
123. The point which requires to be clarified
by DW. 38 is that this total amount is only
for the check period or prior to it. There are
evidences found which are contradictory to
each other in the evidence given by DW. 38,
even when Ex.P. 2 raid took place in his
house at Thambuchetty Palya and
Battarahalli were under construction. So
even assuming that the house at Rajajinagar
was fully completed and he has let out the
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Spl.C.C. No.125/2009
same, to which according to Ex.P. 46 itself
alone is not sufficient. Apart from this, this
DW. 38 at a regular interval as and when
different floors of this Rajajinagar house was
constructed, made no efforts either to
intimate to his higher authorities or the IT
authorities in respect of the earnest money
deposits and rental received from different
tenants so in this regard an adverse
inference has to be drawn. In this regard I
am guided by the principles reported in 2000
Cri.LJ. 619, J. Prem Vs. State; Wherein
the Hon'ble Court held; "under the
circumstances the only conclusion that
can be drawn is that there is a prima-
facie material to proceed further against
the accused and it cannot be said that
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Spl.C.C. No.125/2009
the charge is groundless against them."
But the tenants whom he got examined were
only given limited evidence, which has no
impress of truth at all. So, according to me,
as far as PW. 11 is concerned, Ex.P. 46 was
only to show that for the check period, the
AGO has received the rentals of Rs.
8,10,329/- that has to be accepted so far as
evidence of DW. 38 is concerned, it is silent
and bald to convince this Court in this
regard.
124. Coming to the rents received from the
house at Battarahalli property No.54, again
there is a sea of changes in the claim of rents
by the AGO. According to him, he has
claimed rentals of Rs. 35,18,840/-, but
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Spl.C.C. No.125/2009
according to the IO, it is only Rs.
13,27,549/-. This DW. 38 has adopted
similar explanation which was given to house
No.993 at Rajajinagar. This DW. 38 goes to
say that this excess amount of Rs.
17,26,851/- has not been considered by PW.
11 and according to him, he comes out with
explanation that some of the rooms found in
the 3rd floor of the building were given to
Garden City students who occupied the same
as tenants. But, in this regard, he has
examined the Manager. Again I say that his
evidence is bereft of any quality and impress
of truth. Even his so called claim that this
amount is declared in the APRs is not found
from the documents. Some where I should
say that there is a suppression of material
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Spl.C.C. No.125/2009
fact on the part of the AGO in not disclosing
the correct income and information both to
the Court and to the IO at the relevant point
of time.
125. So far as the claim of the AGO that AGO
has sold a site for a sum of Rs. 4 lakhs vide
Ex.D.69, which is the copy of the sale deed is
concerned, again I should say, this has
occasioned, because DW. 38 himself has not
produced the schedules. If to the notice
caused by PW. 11, had this DW. 38 replied,
all the queries are submitted, Ex.P. 69,
things would have been different. According
to this DW. 38, the person with whom a sale
agreement is entered into by name
Raghavendra is no more. Hence, he has not
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Spl.C.C. No.125/2009
examined this witness. But, I should say
that nothing prevented DW.38 to place the
cards fully before the IO before filing of the
final report. There is a lot of difference
between IO collecting the documents as a
part of his investigation and AGO furnishing
the documents by way of a reply through his
schedules in a disproportionate asset case.
Under such circumstances, as of now, the
income as quoted by the IO, I don't find that
there is any flaw or intentionally IO has
under quoted only to see that final report is
submitted to the higher authorities for
seeking sanction.
126. Of course, usual stand on the part of the
AGO in a disproportionate assets case is that
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Spl.C.C. No.125/2009
intentionally assets and expenditure rates
are quoted on higher platform, whereas
income on lower side. If this contention has
to be accepted, first the AGO must show that
there is some enmity between either with the
Police Officer who filed source report, then
registered FIR or with Lokayuktha Police
Officer who undertook investigation. This
Court cannot presume that in every
disproportionate assets case, there is a
source report and FIR was registered and
final report is filed, they are all ill motivated
or for extraneous reasons.
127. In the instant case, the AGO has availed
an opportunity to lead evidence, either he or
any of his witnesses no where whispered that
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Spl.C.C. No.125/2009
a particular Lokayuktha Police Officer
wanted to take vengeance or vendetta against
this accused. When such being the case,
what is that benefit PW. 11 is going to get if
he quotes income of the AGO on lower side.
In order to over come this suspicion or in
order to see that fair investigation takes place
and the AGO is heard before completing the
investigation notices are issued calling for
explanation. If for any reason, the AGO does
not come forward to reply or to furnish
documents, then the AGO cannot find fault
with law implementing agencies. In the
instant case, when DW. 38 is looked into, he
comes up with an explanation that thrice he
has visited Karnataka Lokayuktha to submit
his schedules, but the PW.11 has refused to
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Spl.C.C. No.125/2009
accept it. According to me, this is nothing
but a cruel joke, because the documents
submitted to the Government office will not
be submitted directly to the concerned
officer, but shall have to be submitted to the
Filing Section and there is a process where
those received documents will reach the
concerned officer or his chamber. In the
instant case, as I have said conveniently this
DW.38 tried to change his skin colour only to
suit his convenience and nothing else.
128. In support of his contentions, the AGO
has cited the following decisions:
1) (2013) 3 AIR (Jhar) 825 in the
case of Vasanthrao Guhe Vs. State of
Madhya Pradesh.
2) (2009) 15 SCC 200 in the case of
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Spl.C.C. No.125/2009
State of Maharashtra Vs.
Dhyaneshwar Lakshman Rao
Wankhede.
3) (2010) 2 AIR Kar 413.
4) Gurumallappa Vs. State by
Lokayuktha Police.
5) Alamelu Vs. State.
6) AIR 1977 SCC 796 in the case of
Krishnanad Agnihotri Vs. State of
M.P.
7) 2008(3) ILR (Raj) 766 in the case
of Ashok Kumar Thakur Vs. State of
Rajasthan.
8) (2010)5 SCC 401 in the case of
S.Kaladevi Vs. V.R.Somasundaram
& Ors.
9) 62 (1996) DLT 202 in the case of
Gunjit Singh Vs. State.
10) (2009) 9 SCC 709 in the case of
Ramesh Chandra Agrawal Vs.
Regency Hospital Ltd. & Ors.
11) (2009) 9 SCC 221 in the case of
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Spl.C.C. No.125/2009
Malay Kumar Ganguly Vs.
Dr.Sukumar Mukhedrjee & Ors.
12) AIR 1974 SCC 171 in the case of
Jayadayal Vs. MST Bibi Hazra &
Ors.
13) (2004) 1 SCC 691 in the case of
State of M.P. Vs. Awadh Kishore
Gupta.
14) (1992) 4 SCC 45 CRI 801 in the
case of M.Krishna Reddy Vs. State
Deputy Superintendent of Police,
Hyderabad.
15) (1992) 4 SCC 39 in the case of
P.Satyanarayana Murthy Vs. State of
A.P.
129. There are some other aspects like only to
fill up the gap of adjusting the income on
higher note, DW. 38 has brought new aspects
especially he in his examination-in-chief
deposes that every year his daughter
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Spl.C.C. No.125/2009
Archana used to give him 500-800 dollars to
him and his wife, but in this regard, there is
not even a scrap of paper produced by him.
According to me, this improvisation on the
part of DW.38 was under taken only to see
that the income is shown on higher side and
nothing else.
130. Likewise, DW.38 in his further
examination-in-chief at page No.13, para-24
has given the list of presents received by his
daughter Archana and Son Ragavendra at
their Marriage and Upanayana. Likewise,
this evidence also quotes the amounts
received as presents and the evidence of
DWs.8 to 10, 15,17, 21 to 24 and 29 have
been let in, only to show before the Court
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Spl.C.C. No.125/2009
that both Archana and Ragavendra received
the presents generously as they were flooded
and for the reasons best known, through
these witnesses their own affidavits have
been marked which is rather surprising.
What is found in the evidence is also found
in their affidavits, both respective evidences
of the witnesses and the affidavits marked
are one and the same. Why they have been
mechanically marked it is for the DW.38 to
offer explanation.
131. Likewise, this DW.38 has examined a
person who claims to have supplied electrical
fittings, borewell motor, plumbing pipes,
person who supplied sand. According to me,
these witnesses help are taken only to cover
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Spl.C.C. No.125/2009
up the lacuna, which are found in Ex.D. 50
to 53. When the evidence of the valuer
Mr.Nagaraj DW. 28 is gone through, he
admits that so far as construction materials
prices are concerned, they have applied an
element of guess work. Under such
circumstances, these oral evidences only to
show before the Court that huge presents
were received at the marriage of Archana and
thread bearing ceremony of Raghavendra
unless properly corroborated, cannot be
accepted. When Smt.Saraswathi visited USA
to help her daughter Archana in Post
pregnancy period, it is the claim of the AGO,
his daughter's in-laws have arranged for the
air tickets. Again this oral testimony is in
vacuum. Had this aspect disclosed prior to
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Spl.C.C. No.125/2009
filing of the charge sheet, definitely it would
have held water on the ground that this AGO
had replied to the notice caused by the PW.7.
132. There is also admission in the cross-
examination of DW. 38 that he has no
documents to show that he had purchased
seeds, pesticides, sale of agricultural
produces and further that he had consumed
all the agricultural produces by himself.
Person who claims that he had agricultural
income has failed to produce either RTC or
Mutation Register extract in respect of those
properties. For having received a gift of Rs.
25,000/- by DW. 38 , there is no any piece of
document. In respect of the alleged loan
obtained by Smt.Saraswathi in a sum of Rs.
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Spl.C.C. No.125/2009
5 lakhs, according to DW.38 he does not
know. I have extracted some stray
admissions of DW.38 only to assess the
quality of the evidence tendered by this
witness, but nothing else.
133. Much hue and cry was made by DW.38
was that even though he has received hand
loans from his relatives, they were not well
considered by the IO while calculating. In
this regard, he heavily banks upon DW. 7
Sujatha Uday Kumar and her Ex.D. 28. But,
in the cross-examination, this lady admits
that she does not know so far which property
her husband had advanced that loan and she
had not obtained any receipt in that regard.
On the same stretch, even when we look at
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Spl.C.C. No.125/2009
the evidence of DW. 12, who claims to be the
relative of the AGO, he has spoken about the
so called agricultural income derived by the
AGO, but in the cross-examination this
witness failed to support his own relative the
AGO.
134. Lastly coming to the evidence of another
son by name Jagadish, who also failed to
support his father in respect of sale
transaction entered into between his father
and G.Raghavendra in respect of Ex.D. 41.
Under such circumstances, this explanation
by way of oral and documentary evidence of
the AGO did not convince this Court that the
AGO has satisfactorily accounted for the
alleged disproportionate assets shown by the
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Spl.C.C. No.125/2009
PW. 11.
135. It was also the cry of the DW.38 that the
IO has not considered some of the incomes of
their family intentionally. He attaches much
importance to Ex.D. 49, the loan supposed to
have been given by Sujatha Uday Kumar just
now discussed above. As that lady herself in
the cross-examination disowns this
transaction, there cannot be any special
reason to attach importance to it. So far as
loan of Rs. 60,000/- received by this AGO
from his department, KGID loan, loan
received from Indian Bank, etc. according to
me, if at all DW. 11 according to DW.38 has
not considered either they have been referred
in APRs or disclosed in ITRs by the AGO. If
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Spl.C.C. No.125/2009
the documents of the PW. 11 obtained during
the course of investigation are incomplete,
this DW.38 should substitute those
documents with proper documents as they
form part of service records. So, under these
circumstances, even though PW. 11 in his
cross-examination has denied that there was
any omission and very strangely this AGO
has failed to properly elicit information from
the mouth of PW. 11. Under these
circumstances, the income as considered by
the PW. 11 for the purpose of holding an
investigation and to file final report looks
natural and realistic. Even while answering
Sec.313 of Cr.P.C. questions, this DW.38
used to have taken different stand depending
upon the validity of those documents.
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136. One can make out that the so called
documents produced by the AGO which are
more or less marked are on various dates
and not at one stretch. Even there is an
admission in the cross-examination of DW.
38 that some of the stamp papers were just
few months prior to date of giving evidence or
it was suggested to him by the Learned
Public Prosecutor that the stamp papers'
dates and date of the execution of the
documents does not match and one can
make out the discrepancy. So, the possibility
of producing th documents only for the
purpose of filing them in this case cannot be
ruled out. Looked from these angles, the IO
was right in showing before the Court that
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the income of the AGO and his family was
just Rs. 75,77,471/-. This Court has also
noticed that the platform for the accused to
show that the major investment was made on
account of his hard earned money is hard to
believe. The public servant who started his
carrier as a Police Inspector and reaches the
post of a Superintendent of Police through
evolution or gradually, to whom this sudden
rise in amassing property may not be
possible and this ascending order looks
unnatural. Quite naturally, it is not only the
public servant who is answerable to his
department, but in a developing Country like
us he is answerable to the society at large
and he should see that he sets positive
example and should be a role model if not a
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Spl.C.C. No.125/2009
trend setter. Undoubtedly, I have no any
hesitation in answering that by amassing the
wealth disproportionate to the known source
of income, he has committed the criminal
misconduct also. In this regard, I rely upon a
decision of the Hon'ble Apex court reported in
A.I.R. 2009 S.C. 1397- Surain Singh Vs.
State of Punjab wherein the Hon'ble Apex
court held; "the efficiency in public service
would improve only when the public
servant devotes his sincere attention and
does the duty diligently, truthfully,
honestly and devotes himself assiduously
to the performance of the duties of his
post". The ratio laid down in this case
squarely applies to the case on hand.
193
Spl.C.C. No.125/2009
137. It is a regrettable aspect that the Police
Sub-Inspector, the AGO who should be a
watchman to others was made to be watched
by the another watchman. In a reported
judgment; 2021(5) KLJ 658 - G. Krishne
Gowda Vs. State of Karnataka wherein the
Hon'ble High Court has held; "Good laws
alone would not be sufficient to make our
country corruption free, but there has to
be effective enforcement of the same and
efforts should be towards making the
concerned accountable". This principles
laid down in this case also applies to this
case. Under such circumstances, the reason
offered by DW. 38 in respect of the
allegations and imputations made by the PW.
11 has not convinced this court and is found
194
Spl.C.C. No.125/2009
not satisfactory. Hence, for these reasons, I
have answered this point No.1 in the
affirmative.
POINT NO.2:
138. Having gone through the materials, the
PWs. 1 and 11 with their convincing
approach, cogent and cohesive evidence were
able to show that either the amassing of
properties/assets or the income was on
account of unknown source of income. The
Hon'ble Apex court held that "The concept
of known source of income has undergone
a radical change now the prosecution is
relieved of the burden of investigating
into the source of income of an accused.
Because it has cast a burden on the
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Spl.C.C. No.125/2009
accused not only to offer a plausible
explanation as to how he acquired large
wealth but also to satisfy the court that
his explanation is worthy of credence."
This principle was laid down by the Hon'ble
Apex court in State of M.P. Vs. Awadh
Kishore Gupta, AIR 2004 (SC) 517. There
is no clarity in the approach of the accused,
because, even he has considered income of
his daughter after her marriage and when
she ceases to be a his family member for the
purpose of calculation but this aspect
wantonly has been ignored. Likewise, DW.
19 and 37 are concerned, so far as their
income is concerned, no proper break ups
are given. No doubt, the prosecution has to
prove these aspects, if according to DW . 38,
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Spl.C.C. No.125/2009
PW. 11 has failed to prove it then, he should
give a proper explanation. In this regard, the
AGO has completely failed to do so. It is also
noticed that the for the reasons best known
to the prosecution it has not identified any of
the material objects in this case so it is also
one of the reasons for this court to consider
this aspect in quantifying the compensation
amount payable by the offender/accused.
Hence, having found merit, I proceed to pass
the following:
O R DE R
The accused is found guilty of
the offences alleged against him.
Acting under Sec.235 (2) of
Cr.P.C., the accused is hereby
convicted of the offences
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Spl.C.C. No.125/2009
punishable under Secs. 13(1)(e)
r/w Sec.13(2) of the Prevention
of Corruption Act,1988.
The bail bond and the surety
bond of the accused shall stand
hereby cancelled.
Call on for hearing on question
of imposing of sentence.
(Dictated to the judgment-writer,
transcript thereof and then corrected and
pronounced by me in the open Court on
this the 28 th DAY OF JUNE 2022).
(S.V.SRIKANTH),
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE,
BENGALURU CITY.
198
Spl.C.C. No.125/2009
ORDER ON SENTENCE
1. Heard both sides and the accused in
respect of imposition of sentence.
2. The Learned Public Prosecutor with all
force contends that the AGO being a public
servant more so, Superintendent of Police,
has involved in a commission of heinous
offence and considering his long stay as the
public servant, no leniency can be shown to
him while imposing sentence. Further, the
Learned Public Prosecutor has also argued
that when the IO has issued notice thrice
calling upon his explanation, that has been
ignored and not cared for by this AGO. So,
this in a way he has shown that the AGO has
no regards for the rule of law. Hence, the
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Spl.C.C. No.125/2009
Court should take this aspect very seriously
and punish the offender by imposing
maximum punishment prescribed under the
law for the said offences. The learned Public
Prosecutor also went on to submit that as it
is an economic offence, maximum sentence
prescribed for the proved offence in the said
Section shall have to be imposed.
3. On the other hand, the learned defence
counsel submitted that this Court should
consider the entire facts and circumstances
of the case in the light of the fact that the
AGO is a senior citizen, having many
ailments, such as BP, Diabetic and he is
alone, whereas his children are abroad and
also submitted in respect of practical
200
Spl.C.C. No.125/2009
difficulties ahead of them to prefer an appeal.
According to him, the present offence is
under prior to amendment of the P.C.
Act.1988. He also highlighted the family
antecedents, social status and that as the
AGO is senior citizen, his health condition
also must be taken into consideration and
this Court should take a liberal view while
passing sentence order.
4. Even though vide Ex.P. 2, it is the claim of
the PW. 11 that in the presence of PW. 2
search and seizure took place and even
though some of the properties were reported
to this Court and necessary orders were
obtained at PF, but the prosecution for the
reasons best known did not get identified any
201
Spl.C.C. No.125/2009
of those properties during trial. So, under
such circumstances, in respect of the
properties, both movable and immovable, as
they have not been identified, so I deem it
proper to impose fine to be paid by the
accused/offender.
5. So far as the offence is concerned, it has to
be considered as not against any one person
but against the society. when a citizen is
appointed as a Police Sub-Inspector, a great
responsibility is shouldered on him to
discharge his official duties as per law.
When a watchman duty is entrusted to this
AGO, who then was deputed to Training
Institute, he must be more careful and
vigilant in setting example to new and young
202
Spl.C.C. No.125/2009
cadets. But, in the circumstances of the case,
some of the stand taken by the AGO that he
was personally supervising the construction
work, he was personally attending to the
agricultural work, attending to other
household works raises million dollar
question as to whether he was left with any
time to discharge his office work or not.
These were some of the admitted indiscipline
and official misconduct noticed by the Court
on the part of the AGO. Even though the
accused/offender is a senior citizen, but the
offence dates backs to a decade back. When
that offence took place, this accused was
maintaining good health. Under such
circumstances, keeping in mind all these
surrounding circumstances, this Court has
203
Spl.C.C. No.125/2009
come to the considered view that the
punishment shall have to be awarded which
shall be proportionate to the severity of the
offence committed by the accused/offender.
6. So far as the offence under Sec.13(1)(e) of
Prevention of Corruption Act, 1988 is
concerned, even though it does not
contemplate life imprisonment, but the
Hon'ble Apex Court and Hon'ble High Courts
have held that the imposition of sentence
must be proportionate to the severity of the
crime. In this regard I am guided by the
principles laid down by the Hon'ble Apex
Court in 2003(4) State of M.P. Vs.
Ghanashyam Sigh, 2004(4) Crimes 175
(S.C.) Aduram Vs. Mukna and others and
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Spl.C.C. No.125/2009
lastly Niranjan Hemachal Sashittal Vs.
State of Maharastra, 2013(4) SCC, 642.
Under such circumstances, even though the
disproportionate assets runs to several lakhs,
that itself is a bad signal to the society as to
how the public office was abused and
misused. Considering all these aspects, I am
of the considered opinion that while imposing
sentence, Court will also take into
consideration the interest of the public at
large, the post which the accused held before
his retirement and the responsibility he was
supposed to shoulder. Further extending or
applying any provisions of the Probation of
offenders Act does not arise because same is
not applicable to the case on hand. Like wise,
as the substantial sentence of imprisonment
205
Spl.C.C. No.125/2009
imposed is four years, question of this court
suspending the sentence of imprisonment in
this forum itself will not sustain for any
consideration at all. Hence, with this
observation, I proceed to pass the following:
ORDER
The accused/offender is sentenced to undergo simple imprisonment for a period of 4 years ( four years) and further sentenced to pay fine of Rs.
1,00,00,000/- (Rupees One Crore only), in default simple imprisonment for a period of 2 years for the offences punishable under Secs.13(1)(e) r/w Sec.13(2) of Prevention of Corruption Act, 206 Spl.C.C. No.125/2009 1988.
I call upon the office to furnish free certified copy of this judgment to the offender/ accused forthwith.
Issue conviction warrant.
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 M.G.Subba Rao
PW.2 Pushpa
PW.3 G.K.Aruna
207
Spl.C.C. No.125/2009 PW.4 Smt.Harishilpa PW.5 K.V.Srinivasappa PW.6 M.N.Omprakash PW.7 Pranesh Kumar PW.8 Jayadev Prakash PW.9 T.Narasimhalu PW.10 Rangaswamy Naik PW.11 V.Shekar PW.12 T.V.Jaya Prakash PW.13 Chandra Shekara LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Source Report Ex.P.1(a) Signature of PW.1 Ex.P.1(b) Endorsement Ex.P.2 Mahazar dtd.3-11-2013
Ex.P.2(a) & (b) Signature of pws 2 & 11 Ex.P.3 Mahazar dtd.3-11-2013 Ex.P.3(a & b) Signatures of PW.2 & 11 Ex.P.4 Mahazar Ex.P.4(a) & b) Signatures of pw; 2 & 11 Ex.P.5 Mahazar dtd.01-12-2007 Ex.P.5(a & b) Signatures of pw; 3 & 11 Ex.P.6 to 35 30 RTC Extracts Ex.P.36 Copy of Mahazar dtd.4-5-2009 Ex.P.37 Covering letter dtd.4-5-2009 Ex.P.38 Reply letter dtd.14-11-2007 of Garden City Edu.Trust Ex.P.39 Reply letter dtd.24-11-2007 Ex.P.40 Valuation Report 208 Spl.C.C. No.125/2009 Ex.P.41 Abstract/valuation Ex.P.42 Letter addressed to Joint Director Ex.P.43 Letter addressed to Lokayukta dtd.22-4-2009 Ex.P.44 Statement of Calculation of expenditure Ex.P.45 Letter of the Jewellers Association Ex.P.45(a) Signature of PW.9 Ex.P.46 Rent Paid details Ex.P.47 Order of Suptd.of Police Ex.P.48 FIR Ex.P.48(a &b) Signature of PW.11 Ex.P.49 Copy of Statement of Syndicate bank.
Ex.P.50 Copy of statement of SBI
Ex.P.51 Credit Bill
Ex.P.52 Quotation of Sai Solutions
Ex.P.53 Bill bearing No.33956
Ex.P.54 Bill bearing No.63335
Ex.P.55 Cash Invoice of Nagson & Co.
Ex.P.56 Xerox copy of passport
Ex.P.57 Copy of certificate issued by
CRS & Associates.
Ex.P.58 Provisional Income Tax
Certificate of CanFin Pvt.Ltd. Ex.P.59 Xerox copy of HDFC/Personal Pension Letter Ex.P.60 & 61 Xerox copy of LIC Premium Receipts Ex.P.62 Xerox copy of LIC policy. Ex.P.63 Xerox copy of GPF Statement 209 Spl.C.C. No.125/2009 Ex.P.64 Pay Slip of accused Ex.P.65 Pay Slip issued by AG. Ex.P.66 Letter of Canfin Homes Ex.P.67 Telephone bill Ex.P.68 Copy of the sale deed Ex.P.69 Records pertaining to education Ex.P.70 Certified copy of sale deed Ex.P.71 Covering letter Ex.P.72 EC of Ex.P. 70 Ex.P.73 Certified copy of sale deed Ex.P.74 Covering letter Ex.P.75 Letter of Maruthi RNS Motors Ex.P.76 Letter bearing vehicle Reg.
No.KA02-J-3988 Ex.P.77 Letter for maintenance & expenditure of the vehicle Ex.P.78 EC of Site No.13 Ex.P.78(a) Signature of PW.12 Ex.P.79 Covering letter Ex.P.80 Letter from Sr.Sub-Registrar. Ex.P.81 Certificate of EC. Ex.P.82 Copy of sale deed Ex.P.83 Covering letter of Sub.Registrar, K.R.Puram Ex.P.84 Copy of Sale deed.
Ex.P.85 E.C.
Ex.P.86 Letter of NMKRV College
Ex.P.87 Service Particulars of AGO
Ex.P.88 Baraward Extract of accused
Ex.P.89 Covering letter
Ex.P.90 letter of Canfin Homes
Ex.P.91 Letter of SBI
210
Spl.C.C. No.125/2009 Ex.P.92 Income tax intimation Ex.P.93 to 96 Enclosures Ex.P.97 Letter of CEO Taluk Panchayath Ex.P.98 Report of Secretary Chandapura Ex.P.99 Extract of property register Ex.P.100 Letter of CEO of Taluk Panchayath Ex.P.101 Letter of Hennagar Panchayath Ex.P.102 Letter of Principal, Armed Police Yelahanka, Bengaluru. Ex.P.103 Acquittance Roll extract Ex.P.104 Letter of Benaka Enterprises Ex.P.105 Enclosure of Ex.P.104 Ex.P.106 Letter of Secretary, Bengaluru City Police Housing Society Ltd. Ex.P.107 Xerox copy of Receipt Ex.P.108 Letter of HUDCO Niwas Ex.P.109 Letter of LIC Ex.P.110 Enclosure of Ex.P. 109 Ex.P.111 Letter of Shilpa Kala Mantap Ex.P.112 Letter of Benaka enterprises Ex.P.113 Enclosure to Ex.P. 112 Ex.P.114 Two Bajaj Insurance Certificate Ex.P.115 Letter of BBMP Ex.P.116 Extract of property Ex.P.117 Xerox copy of property tax payments Ex.P.118 Letter of Majestic Mobikes P.Ltd.
Ex.P.119 Letter of LIC Ex.P.120 Letter of BESCOM 211 Spl.C.C. No.125/2009 Ex.P.121 Letter of DIG & IGP Ex.P.122 to 130 Original Assets & Liabilities statement of AGO Ex.P.131 Letter of Passport Officer Ex.P.132 to 135 Enclosures to Ex.P. 131 Ex.P.136 Letter of Armen goods & travels Ex.P. 136(a) Signature of DW. 6 Ex.P.137 & 138 Enclosures to Ex.P. 136 Ex.P.139 SBI Letter dtd.2-04-2009 Ex.P.140 & 141 Syndicate Bank Account details Ex.P142 Electrical Expenses Bill Ex.P.143 Letter of Tahasildar Ex.P.144 Letters of Retail Acadamy India P.Ltd.
Ex.P.145 Letters of AG of Karnataka Ex.P.146 Letter of Dept.of Telecommunication Ex.P.147 Letter of Chief Accounts Officer, BSNL Ex.P.148 Call particulars of Telephone Ex.P.149 Letter enclosed with Ex.P. 148 Ex.P.150 & 151 Letter of BSNL Ex.P.152 Letters of Symphony Service corporation India Pvt.Ltd. Ex.P.153 & 154 Letters of Asst.Dir.of Agriculture, Mulabagilu Tq. Ex.P.154(a) Signature of PW. 13 Ex.P155 & 156 Enclosures of Ex.P. 154 Ex.P.155(a)&156(a) Signatures of PW. 13 Ex.P.157 Letter of Joint Director Ex.P.158 Letter of Chief Engineer Ex.P.159 to 162 Notices Ex.P.163 C/C of sale deed & EC 212 Spl.C.C. No.125/2009 Ex.P.164 Document received from Dist.
Registrar, Shivajinagar, B'lore. Ex.P.165 Documents pertain to Hero Honda bike Ex.P.166 'B' extract of Vehicle No.KA02-P 6169 from RTO, R.R.Nagar. Ex.P.167 RD accounts and loan details from Manager, SBI, WOC Road, Bengaluru.
Ex.P.168 Loan and repayment details from Manager, Bhavasar Kshathriya Co.Op.Bank Ltd. Ex.P.169 LIC Policy details from Sr.branch, Manager, Jayanagar Ex.P.170 Insurance Policy details from HDFC, Legal & Compliance Sec. Ex.P.171 Water connection details from AEE, BWSSB, Bengaluru West Ex.P.172 Salary particulars from DCP, CAR, Bengaluru from 1-8-1988 to 1-10-2005 Ex.P.173 Vehicle Loan details from Branch Manager, Sir M.V. Co.op.Bank,Jayanagar, Bengaluru.
Ex.P.174 Loan and clearance details from AGM, Canfin Homes Ltd., B'lore LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
DW.1 Shyam Sundhar
DW.2 J.K.Jay Ram
213
Spl.C.C. No.125/2009 DW.3 C.A.Raj Kapur DW.4 Aruna Ramachandra DW.5 Ganga Channaiah DW.6 R.Sathyanarayana DW.7 Sujatha Uday Kumar DW.8 Ranganath C.N. DW.9 Smt.D.K.Geetha DW.10 Smt.ayathri DW.11 Gurudath DW.12 Ranganath DW.13 Ramesh DW.14 Nagarajaiah DW.15 V.S.Rajendra DW.16 Dr.Mullappa DW.17 Chandramouli DW.18 Belliyappa DW.19 C.S.Jagadish DW.20 H.S.Chandra Shekar DW.21 Ashok Kumar DW.22 Smt.Gayathri DW.23 Kumar DW.24 Smt.Prabha DW.25 G.S.Krishnamurthy DW.26 Pathraiah DW.27 L.Narayan DW.28 D.Nagaraj DW.29 Jitendra M.Patel DW.30 Manjunath DW.31 Shivaram S.K. DW.32 Khaleel Ur Rahman DW.33 M.Chandrashekar DW.34 C.A.Ramachandra DW.35 Girish 214 Spl.C.C. No.125/2009 DW.36 Archana Iyer DW.37 C.S.Raghavendra DW.38 C.A.Srinivas Iyer LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Ex.D.1 Xerox copy of Building plan Ex.D.2 Letter of KGID Ex.D.3 Letter dtd.08-06-2009 Ex.D.4 Xerox copy of Building plan Ex.D.5 Xerox copy of proceedings of DIG & IGP Ex.D.6 Xerox copy of Building plan Ex.D.7 Xerox copy of proceedings of Commissioner of police Ex.D.8 Xerox copy of Ledger extract of Can Fin Homes Ltd.
Ex.D.9 Xerox copy of Building plan Ex.D.10 Letter of Commandant, KSRP Ex.D.11 Letter of Suptd.of police,Kalaburagi Ex.D.12 Xerox copy of Pay particulars of accused Ex.D.13 to 15 Xerox copy of Rental agreement Ex.D.16 Letter Ex.D.17 Affidavit of DW. 1 Ex.D.18 Affidavit of DW. 2 Ex.D.19 Affidavit of DW. 3 Ex.D.20 Lease agreement 215 Spl.C.C. No.125/2009 Ex.D. 20(a) Signature of DW. 11 Ex.D.21 Affidavit Ex.D.22 Affidavit of DW. 4 Ex.D.23 to 27 Rent/Lease agreements Ex.D.28 Bank statement Ex.D.29 Sand supply bills Ex.D.30 Material slip Ex.D.31 to 35 Sri Chennakeshava Lorry material bills Ex.D.36 & 37 Agricultural income certificates issued by DW. 16 Ex.D.36(a) &37(b) Signatures of DW. 16 Ex.D.38 Carbon copy of purchase bill Ex.D.39 Credit bill Ex.D. 39(a) signature of DW. 18 Ex.D.40 Letter pad Ex.D. 40(a) signature of Suresh Ex.D.41 Salary certificate of DW. 19 Ex.D.42 Experience certificate of DW. 19 Ex.D.43 Releaving letter of DW. 19 Ex.D.44 Assessment order issued by IT Department Ex.D.45 Demand notice issued by IT Ex.D.46 Submissions of the accused to IT department Ex.D.47 Rent agreement Ex.D.47(a) Signature of DW. 26 Ex.D.48 Letter issued by DW. 26 Ex.D.48(a) Signature of DW. 26 Ex.D.49 Copy of letter written by wife of DW. 26 Ex.D.49(a) Signature 216 Spl.C.C. No.125/2009 Ex.D.50 Valuation report of Battarahalli house.
Ex.D. 50(a) Signature of DW. 28 Ex.D.50(b) Signature of Gundappa Ex.D.51 Valuation report of West of Chord Roadhouse. Ex.D. 51(a) Signature of DW. 28 Ex.D.51(b) Signature of Gundappa Ex.D.52 Valuation report of Subash Nagar, Battarahalli house.
Ex.D. 52(a) Signature of DW. 28 Ex.D.52(b) Signature of Gundappa Ex.D.53 Valuation report of Srigandacavalu compound wall.
Ex.D. 53(a) Signature of DW. 28 Ex.D.53(b) Signature of Gundappa Ex.D.54 Shiv Enterprises Shop bill Ex.D.55 & 56 Ragavendra Agencies bills Ex.D.57 Letter dtd.7-12-2007 Ex.D.57(a) Signature of DW. 32 Ex.D.58 Courier Cover Ex.D.59 to 61 Rental agreements Ex.D.59(a) to 61(a) Signatures Ex.D.61(A) Appointment letter Ex.D.62 Salary certificate Ex.D.63 Promotion letter Ex.D.64 Releaving letter Ex.D.65 Offer letter issued by Retail academy Ex.D.66 Joining letter & salary details issued by Symphony co.217
Spl.C.C. No.125/2009 Ex.D.67 Citi Bank statement of DW.37
Ex.D.68 ICICI Bank statement of DW.37 Ex.D.69 Agreement of sale Ex.D. 69(a) Signature of DW. 38 Ex.D.70 & 71 Bank statements Ex.D.72 Quotation of Veerabhadra Electricals Ex.D.73 Confirmation letter Ex.D.74 Statement of Canfin Homes Ltd. in respect of Saraswathi Ex.D.75 Bank statement of Ashwath narayana Ex.D.76 Letter of TD & Co. Ex.D.77 Tax Invoice of TD & Co. Ex.D.78 Syndicate Bank SB Account ledger extract Ex.D.79 ACP permission for construction of house Ex.D.80 Memo issued by SP Ex.D.81 Letter issued by tenant Ex.D.82 Information letter issued by S.K.Shivaram Ex.D.83 Statement of Canfin Homes Ltd. in respect of Saraswathi Ex.D.84 Syndicate bank Statement of accused Ex.D.85 SB account statement of SBI Ex.D.86 Loan sanction offer letter of Canfin Homes Ltd.
Ex.D.87 Police commissioner order Ex.D.88 DIG order dtd.7-5-1986 218 Spl.C.C. No.125/2009 Ex.D.89 ADGP Certificate LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
NIL (S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.