Karnataka High Court
State By Lokayuktha Police vs Gurumallappa S/O Channaveerappa on 16 February, 2016
Equivalent citations: 2016 (2) AKR 518, (2016) 4 KCCR 3453
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL APPEAL NO.136/2010
BETWEEN:
State by Lokayuktha Police,
Mysore.
...APPELLANT
(By Sri Venkatesh S. Arbatti, Adv.)
AND:
Gurumallappa,
S/o. Channaveerappa,
Aged about 68 years,
Retd. Secretary, Ubdur Mandal Panchayath,
Mysore Taluk,
R/o. House No.2172, 3rd Cross,
Basaveshwara Road,
Mysore.
... RESPONDENT
(By Sri C.M. Jagadeesh &
Sri Veerabhadra Swamy H.P., Advs.)
This Crl.A. is filed under S.378(1) and (3) Cr.P.C.,
praying to grant leave to file an appeal against the
judgment and order of acquittal dated 29.08.2009 passed
by the Prl. District and Sessions Judge, Mysore in Special
Case No.69/1997, acquitting the respondent/ accused for
the offence punishable under Ss.7, 13(1)(e) r/w S.13(2) of
the Prevention of Corruption Act, 1988.
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This Crl.A. coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
Based on a complaint (Ex.P-1) dated 15.02.1994 submitted by M.N. Shivananjaiah alleging that the respondent demanded Rs.500/- for transfer of katha of a site, FIR (Ex.P-2) in Crime No.3/1994 was registered by the appellant for the offences under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short 'the Act'). A pre-trap panchanama (Ex.P-4) was drawn. CW.53 applied and obtained search warrant and conducted the search panchanama (Ex.P-5). The intended trap did not materialise. Permission vide Ex.P-8, to investigate and add Section 13(i)(e) r/w 13(2) of the Act was obtained on 16.02.1994. After the investigation of the case, sanction order vide Ex.P-224 was issued on 30.09.1996, by PW.32. Charge sheet was filed on 15.04.1997 against the respondent, under Sections 7, 13(i)(e) and 13(2) of P.C. Act, stating that the accused was a Village Accountant, Mandal Panchayat in Mysuru Taluk, T.Narasipura Taluk and 3 Udbur Mandal Panchayat from 10.09.1970 to 15.02.1994 and possessed assets worth Rs.9,07,494.84/-, as against his income of Rs.6,56,094.27/- and thus, possessed disproportionate assets worth Rs.2,51,458/-. Charge sheet was registered as Special Case No.69/1997 in the Court of the Sessions Judge and Special Judge at Mysuru. The respondent/accused appeared, pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution examined 32 witnesses and marked 237 documents. Accused was examined under Section 313 Cr.P.C. and that he denied the incriminating evidence appearing in the statements of the prosecution witnesses. He examined one witness and marked 4 documents. The learned Trial Judge taking into consideration the rival contentions and upon assessment of the evidence by recording a finding that the prosecution has failed to prove the charges leveled against the accused, "that he has amassed the wealth disproportionate to his known sources of income", passed the judgment dated 29.08.2009, acquitting the accused in respect of the charged offences, 4 noticed supra. This appeal is directed against the said judgment and order of acquittal.
2. Sri Venkatesh S. Arbatti, learned advocate, contended that the learned Trial Judge has taken liberal view in appreciating the evidence on record. He submitted that the accused having failed to account substantially and the prosecution having established beyond reasonable doubt that the accused has amassed the wealth disproportionate to his known sources of income, the judgment of acquittal passed being erroneous is liable to be set aside. Learned counsel submitted that the evidence of PWs.1, 23 and 27 being credible and the guilt of the accused having been proved, the impugned judgment is liable to be set aside and the respondent is liable to be convicted and punished for the offence under Sections 13(i)(e) r/w 13(2) of the Act.
3. Sri C.M. Jagadeesh, learned advocate, on the other hand, by referring to the oral and documentary evidence, submitted that the prosecution having failed to 5 establish its case beyond reasonable doubts, learned Trial Judge is justified in arriving at the conclusion i.e., in respect of the purchase of house property, agricultural income, income from the sale of milk and the sale of sheep and also the food expenses. Learned counsel submitted that there being too much exaggeration on the part of the prosecution and its case being not credible, suffering from discrepancies and contradictions, going to the root of the matter, learned Trial Judge is justified is passing the judgment of acquittal in respect of the charged offences. Learned counsel made submissions in support of the finding recorded by the learned Trial Judge and sought dismissal of the appeal.
4. Sri Venkatesh S. Arbatti, submitted that the consideration of the case be restricted to the offence punishable under Sections 13(i)(e) r/w 13(2) of the Act, since the trap did not materialize. Submission of learned counsel stands recorded.
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5. According to the appellant, the property which is the subject matter of the sale deed, as at Ex.P-92, is Rs.2,12,400/-. To substantiate the same, reliance is placed on the receipt Ex.P-90. Undisputedly, Ex.P-90 does not contain the signature of the respondent. The author of Ex.P-90 has not been examined. Mere production and marking of the said document as an exhibit is not enough. Execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouch safe for truth of the contents appearing therein. Even otherwise, the registered sale deed, Ex.P-92, shows the value of sale consideration paid is Rs.72,000/- only. Vendor of the property, covered as per Ex.P-92, having purchased the property in the year 1985 for Rs.47,000/-, had mortgaged the same for Rs.10,000/- and sold the same in the year 1992 vide Ex.P-92 for Rs.72,000/-. Though the vendor of the sale deed as per Ex.P-92 has been examined, nothing with regard to Ex.P-90 has been elicited through him. It is on account of the said fact, the Trial Judge by assigning cogent reasons in para 35, has rightly held that the 7 prosecution has failed to prove that the value of the immovable property purchased as per Ex.P-92 is Rs.2,12,400/-. In my view the burden of proving Ex.P-90 has not been discharged by the prosecution.
6. Sri Venkatesh S.Arbatti, was unable to point out any other material placed on record to arrive at the conclusion that the value of the property purchased under Ex.P-92 is Rs.2,12,400/-. Ex.P-90 having not been proved in accordance with law and the vendor who sold the property as per Ex.P-92 having stated that the property was sold at Rs.72,000/- and the sale deed also having reflected the said amount, I do not find merit in the contention that the sale consideration paid for purchase of the property was Rs.2,12,400/- and not Rs.72,000/-.
7. The learned Trial Judge is justified in taking the income received from sale of 45 sheep by the accused at Rs.38,500/-, instead of Rs.22,500/-, as claimed by the prosecution. The prosecution has not examined even an expert or a valuer in proof of its claim that the value of 45 8 sheep should be taken at Rs.22,500/- i.e., at Rs.500/- per sheep. The finding recorded by the Trial Judge with regard to the income out of sale of sheep at Rs.38,500/- does not suffer from any infirmity.
8. The respondent being a resident of a Village and not a town or city, the food expenditure assessed by the prosecution being an exaggeration, the Trial Judge is justified in holding that the assessment is hypothetical. The standard of living of the town/city cannot be a basis for assessing the living expenditure of the person living in the village. Hence, the finding recorded by the learned Trial Judge with regard to food expenditure is justified.
9. Even with regard to the agricultural income, there being exaggeration on the part of the prosecution, the Trial Judge is justified in arriving at the conclusion that the income claimed by the accused is justified. The expenditure towards agriculture has been taken by the prosecution as 2/3rd. Even in land acquisition cases, in respect of the acquisition of agricultural land, to ascertain 9 the market value, 50% of the amount is deducted towards expenditure. Hence, the basis adopted by the prosecution to assess the agricultural income being erroneous, the learned Trial Judge is justified in holding that Ex.P-30 cannot be accepted.
10. There being no dispute with regard to the family of the accused maintaining cows and having had income from sale of milk and wife of the accused, also being an office bearer of a Milk Producers Society, the learned Trial Judge is justified in taking the income, as claimed by the accused, at Rs.35,000/-. Reasons assigned by the Trial Judge at para 39 with regard to the income from the sale of milk do not suffer from any perversity.
11. The excess value of the assets possessed by the respondents being comparatively small-less than ten percent of the total income, the learned Trial Judge is justified in holding that the assets found in possession of the accused is not disproportionate to his known sources of income.
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12. The learned Trial Judge has very meticulously examined the record of the case and has not committed any error in rendering the finding that the accused is not possessing assets disproportionate to his known sources of income. Since the Trial Judge has not committed any error and as the relevant evidence has been correctly assessed and appreciated, the finding of fact recorded cannot be termed as perverse.
In view of the above, the appeal being devoid of merit is dismissed.
Sd/-
JUDGE ca