Bangalore District Court
State By vs Mr.K.Anjinappa on 25 January, 2022
1
Spl.C.C. No.21/2009
KABC010193702009
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS COURT AND SPECIAL
COURT FOR TRYING OFFENCES UNDER THE
PREVENTION OF CORRUPTION ACT, AT
BENGALURU CITY (CCH-78)
DATED THIS THE 25 th DAY OF JANUARY 2022
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE &
SPECIAL JUDGE, BENGALURU CITY.
SPL. C.C.No. 21/2009
COMPLAINANT: State by
Karnataka Lokayuktha
Police.
(Rep.Public Prosecutor)
/VS/
ACCUSED: Mr.K.Anjinappa,
S/o K.Chikkanarayanappa,
2
Spl.C.C. No.21/2009
52 years, Director (Marketing),
Karnataka Soaps & Detergent
Ltd.,Bengaluru.
R/at No.11, Paradise
Apartment, 5th Cross,
Prashanth Nagar,
Bengaluru.
(Rep by Sri.Shankar P.
Hegde.,Advocate)
TABULATION OF EVENTS
01. Date of commission of offence : 20-09-2005
02. Date of report of offences to
the Police Station (FIR date) : 20-09-2005
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : Lokayukth 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 : 06-03-2009
08. Date of commencement of
recording of evidence : 05-11-2013
3
Spl.C.C. No.21/2009
09. Date of closing of evidence : 09-04-2018
10. Date of judgment : 25-01-2022
11. Opinion of the Judge in : Accused is
respect of the offences. acquitted.
*****
JU DG ME N T
1. The Police Inspector, Bengaluru City Division, Karnataka Lokayuktha, Bengaluru has filed the charge sheet against the accused for the 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 being that, the accused when he was working as the Director (Marketing), Karnataka Soaps & Detergents Ltd., Bengaluru and in that tenure as a public servant, for the check period from 4 Spl.C.C. No.21/2009 06-08-1984 to 21-09-2005 acquired the properties and assets disproportionate to his known source of income and on or about 20 th September 2005, the accused was found in possession of pecuniary resources and properties in his name and name of his family members, which amounted Rs. 81,76,539/- and that the accused and his family expenses for the said period was Rs. 43,74,034/- and that their known source of income was Rs. 86,40,255/-, so according to the prosecution/PIKL, the accused and his family members found in possession of properties disproportionate to their known source of income to the extent of Rs. 39,10,318/- which accounted for 45.25%, for which the accused could not satisfactorily account for and 5 Spl.C.C. No.21/2009 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, all the prosecution papers were supplied to him. As the application filed by the accused seeking for discharge under Sec.227 of Cr.P.C. came to be rejected by this Court and as this Court found prima-facie material to frame charges against the accused, this Court framed charges and read over to the accused in his known language, for which, he pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused, the 6 Spl.C.C. No.21/2009 prosecution in all has examined PWs.1 to 13, exhibits at Ex.P.1 to P.80 came to be marked.
On the other hand, as there was incriminating evidence found against the
accused, statement as contemplated under Sec.313 of Cr.P.C. came to be recorded. The accused denied the same and choose to lead defence evidence. In pursuance of the opportunity extended to him by this Court, he got examined DW. 1 to 12 and Ex.D.1 to D.122 came to be marked.
5. Heard the arguments.
6. During the course of arguments, the learned counsel for the accused submitted his written arguments with a list of citations. I have gone through them carefully in detail. 7
Spl.C.C. No.21/2009
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 named above was working as the Director (Marketing), Karnataka Soaps & Detergents Ltd., Bengaluru and being a public servant, for the check period commencing from 06-08-1984 to 21-09-2005 acquired the properties and assets disproportionate to his known source of income and on or about 20 th September 2005, he was found in possession of pecuniary resources and propert ies in his and his family members name, to the tune of Rs. 81,76,539/-, both his and his family members' expenses was Rs. 43,74,034/- and their known source of income was Rs.
86,40,255/-, besides that, the accused was found in possession of properties disproportionate to his known source of income of Rs.
39,10,318/- which came up to 45.25%, for which the accused 8 Spl.C.C. No.21/2009 could not satisfactorily accounted for, thereby has committed criminal misconduct and offences under Sec.13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 ?
2). What order?
8. After carefully going through the materials available on record and on thorough evaluation of both oral and documentary evidence, my findings to the above points are as under:
POINT NO.1: In the negative.
POINT NO.2: As per my final order
for the following:
REASONS
POINT NO.1;-
9. It is the specific case of the Investigating Officer i.e. the Pws No. 1 and 9 of the Karnataka Lokayuktha, Bengaluru that the 9 Spl.C.C. No.21/2009 accused had amassed wealth, wherein the total assets of him and his family members was in a sum of Rs. 81,76,539/-, total expenditure came up to Rs. 43,74,034/- and total income was Rs. 86,40,255/-. So, it is the allegation of the IO that the AGO had an amount of Rs.39,10,318/-, which was the disproportionate asset known to his source of income which accounted to 45.25%. When this allegation was made by the IO, the investigation undertaken by her was totally on a different direction, because, the moment, the AGO became the Engineering Graduate, first he joined HMT Ltd. in sales (marketing) division, for few days he worked at Bengaluru, then he shifted to Hyderabad and for having worked for totally 6 years, then he resigned 10 Spl.C.C. No.21/2009 from that post and joined Karnataka Soaps and Detergents Ltd., Bengaluru.
10. At the same time, this Court cannot loose sight of the important element i.e., the check period. But, according to IO, when the check period is considered which commences from 06-08-1984 to 21-09-2005, the accused was found possessing a sum of Rs. 39,10,318/- which was found to be in possession of property disproportionate to his known source of income. So, according to the prosecution, when AGO failed to account for this disproportionate asset, hence, the source report Ex.P. 1 was acted upon, later the IO was compelled to file a charge sheet before this Court by invoking Sec.13(1)(e) r/w Sec.13(2) of Prevention of Corruption Act 11 Spl.C.C. No.21/2009 1988. Quiet naturally when the calculation provided by the prosecution is looked into, the assets and expenditure are seems to be on higher side when compared to the income of the AGO and his family members.
11. On the other hand, the very first grievance of the AGO being that there is an unfair investigation that was undertaken by the IO, because, the IO has not considered the emoluments and benefits received by the AGO from HMT Ltd. According to the AGO, the very fact that Sec.13(1)(e) r/w Sec.13(2) of Prevention of Corruption Act 1988 are invoked which clearly envisages the fact that the moment raid and search of the house of the AGO and his family members take place, which is followed by seizure, then the IO must 12 Spl.C.C. No.21/2009 give an opportunity to the AGO to offer his explanation. In this case, according to the AGO that no such opportunity was given to him by the IO in this case. In this regard, the counsel for the accused relies upon the decision in re - Vedagiri case reported in 1985 MLJ, Criminal 151, wherein the Hon'ble High Court of Karnataka has held "it is thus obvious that the IO should give an opportunity to the person investigated against to explain the disproportion found by him". Likewise, according to the defence counsel, if an allegation is made under Sec.5(1)(c) of the said Act, first the IO must necessarily satisfy himself that the concerned public servant is not satisfactorily in possession of pecuniary 13 Spl.C.C. No.21/2009 resources or property found by the IO disproportionate to his known source of income." So, according to me, whether the IO committed mistake or not in giving opportunity for offering explanation by the AGO or she has jumped to the conclusion that she found disproportionate asset to the known source of income of the accused can be known only on appreciation of both oral and documentary evidence.
12. Now, the very important aspect that has to be very seriously scrutinized is the fact that whether the IO has considered all the items of assets, expenditure and income. Now, when we use the word 'AGO', obviously it includes his or her family members, they are 14 Spl.C.C. No.21/2009 wife/husband, children. In the instant case, undoubtedly on a birds eye view of the matter, both assets and income possessed and acquired by the wife of AGO was substantially more than that of the AGO. The documents also show that Smt.Geetha wife of the accused earlier was a business woman selling silk sarees, then she turned out to be a beautician running a Beauty Parlour at Basaveshwara Nagar, Bengaluru, was trading in shares and debentures then lastly she received rents from her property, wherein many tenements were let out.
13. In the calculation given by the IO as per the Charge sheet, when that is carefully looked into, for the reasons best known, the IO has not at all considered either the assets 15 Spl.C.C. No.21/2009 or the income of the wife of the AGO by name Smt.Geetha. During the course of arguments, the learned counsel for the accused having placed Ex.D. 1 and D.2, they are the schedules, also submitted that let alone IO not holding investigation in the right direction of collecting the documents to know whether Smt.Geetha had acquired the assets and also had a substantial income, but, when both Smt.Geetha and AGO were examined as defence side witnesses as DWs.5 and 12, the prosecution has shown least interest in verifying as to whether Smt.Geetha, DW. 5 had lawful source of income or not. He also went on to submit that it is the requirement of law that if either the assets or income are not declared in ITR for a particular year, then 16 Spl.C.C. No.21/2009 by way of defence evidence, they can be proved as lawful source. Because, according to the accused, they enjoyed placing both oral and documentary evidence, wherein they have to be appreciated as per Sec.3 of the Indian Evidence Act by applying the principles of preponderance of probabilities.
14. The defence counsel also highlighted that share transactions held both by DW. 5 and 12 with M/s.Innova Securities Pvt.Ltd. have not at all been considered by the investigating Officer. According to the defence counsel, this counts for substantial amount being ignored by the prosecution for the reasons best known to it. According to them, the share transaction or the amount involved in that share business are not taken into 17 Spl.C.C. No.21/2009 consideration. Quite naturally, the income particularly of the accused and his family members cannot be on higher side. Likewise, it is also the grievance of the AGO that the market value, construction costs and also the house hold articles found in two houses, one situated at Prashanthnagar, another situated at HSR Layout, Banasawadi, have not at all been properly considered and their value have been very badly inflated only to see that this accused is implicated in this case. So, on one hand, it is the bald claim of the prosecution that the disproportionate assets held by the AGO was such that he could not account for the same. But, on the other hand, the rudimentary attack on the part of AGO that, as the IO did not provide an opportunity to 18 Spl.C.C. No.21/2009 AGO to account for assets and income held by him and his family members, apart from that, in spite of placing Ex.D. 1 to D.122, the prosecution has made little effort to find fault with the accused. According to the AGO, mere production of documents by collecting from various agencies by themselves cannot prove those documents. The learned Counsel for the accused highlighted inaction on the part of the IO, PW. 9 in not making any effort to ascertain whether M/s.Innova Securities Pvt.Ltd. office exists or not. Whereas on the other hand, the AGO himself has examined a stock broker by name Chandrashekar S/o Guruswamy DW.10. So, these were some of the instances highlighted by the AGO's counsel to bring home the fact that how 19 Spl.C.C. No.21/2009 serious P.W.- 9 has taken investigation. So, with these allegations and counter allegations in the back ground, this Court shall have to go through the available oral and documentary evidence.
15. Coming to the examination-in-chief of PW. 1 by name B.S.Rama Mohan, S/o Sanna Rudrappa. He was the Police Inspector at the relevant point of time with the City Division, Karnataka Lokayuktha, Bengaluru. This gentleman makes it clear that on 19th September 2005, he has collected the source report in respect of AGO by receiving a credible information that the AGO was found in possession of the assets disproportionate to his known source of income. Accordingly, that report was prepared and the same was 20 Spl.C.C. No.21/2009 marked at Ex.P.1. Having obtained permission from his higher authority, FIR Ex.P. 2 came to be registered. Through this witness, authorization received from the SP, Karnataka Lokayuktha marked at Ex.P. 3. Subsequently, search warrant at Ex.P. 4 came to be obtained, then with the help of panchas PW. 3, search of premises standing in the name of DW. 7 Smt.Geetha took place. Likewise, some documents came to be seized. According to this PW. 1, the information which he received was credible, so Ex.P. 1 and P.2 have taken place and subsequently search and raid of accused and his family members' premises took place. There was evidence found in this witness deposition that if at all they have acted, it was on account of reliable 21 Spl.C.C. No.21/2009 source and nothing else.
16. Coming to the evidence of PW. 2, Moodalagiri S/o Moodalagiri who was the SDA attached to the Directorate of Technical Education who assisted the police Inspector, Lokayuktha as a pancha. This PW. 2 with another pancha Smt.Usharani along with KLA officials went to the house of the accused at Prashanthnagar, wherein search and raid took place in their presence, panchanama was drawn. He identified that document and his signature is marked at Ex.P. 5(a). One notable aspect which could be seen is that this witness is treated as a partly hostile witness. The Learned Public Prosecutor has cross-examined this witness to that portion of evidence, which is not supported by this 22 Spl.C.C. No.21/2009 witness. According to this witness, subsequently, they were taken to the Beauty Parlour run by Smt.Geetha, where they found no articles inside and a separate panchanama was marked at Ex.P. 6. This witness also identified his signature at Ex.P. 6(a). So, the very purpose of examining PW. 2 was to lend support to Ex.P. 5 and P.6. But, the prosecution was not successful in demonstrating before this Court that this witness acted voluntarily out of his free will and volition.
17. Coming to the evidence of PW. 3 by name Smt.Ushamani D/o Sudheendrachar, who was also working as a SDA at the PUC Board, Bengaluru. According to this lady, on 20 th September 2005, she reported before the 23 Spl.C.C. No.21/2009 Lokayuktha office and met the police inspector by name Rama Mohan and spoke about what was the assistance to be given by her to them. According to this lady, she went with them, where PW. 2 was also accompanied them to the house situated at the Prashanthnagar belonging to AGO and spoke about how the search and seizure took place in the said house, drawing Ex.P. 5 from morning 8.30 to 5 p.m. and noting down the house hold articles, gold and silver articles and also visiting Beauty Parlour at Basaveshwara Nagar, Bengaluru. This witness also failed to support the prosecution in respect of the KLA independently drawing Ex.P. 5 and P.6 in their presence.
18. Coming to the evidence of PW. 4 by name 24 Spl.C.C. No.21/2009 R.Umashankar S/o B.Rudrashetty. According to this person, he was serving as a FDA with the Excise Department, Bengaluru and he also spoke about how he assisted the Lokayuktha police as a mahazar witness. According to this PW. 4, he reported before the Dy.S.P. Rama Mohan and then, they visited another house of AGO in HSR Layout House No.552. According to this person, Ex.P. 7 which is the spot panchanama was drawn in the said house from 1.15 PM to 5.15 PM. This witness identifies his signature on that document. But, this witness is treated as a hostile witness, then the Learned Public Prosecutor cross-examined this witness. Then the very fact that PWs. 2 to 4 have not fully supported the prosecution, signal the fact 25 Spl.C.C. No.21/2009 that Ex.P. 5 to P.7 are not corroborated or they does not find any support from the ocular evidence of these witnesses.
19. Coming to the evidence of PW. 5 by name V.Umesh, S/o M.T.Vishwanathaiah. According to this person, he had served as the Principal Secretary to the Department of Industries and Commerce and he was also holding additional charge of the Chairman of Karnataka Soaps and Detergents Ltd., Bengaluru. According to PW. 5, he receives a requisition from the ADGP, KLA, Bengaluru on 11-08-2008 seeking for sanction to prosecute the accused for the above said offences. This witness spoke that along with that requisition letter, there were other annexures in the nature of source report, 26 Spl.C.C. No.21/2009 statement of witnesses, FIR, mahazar and other documents. On 04-12-2008, he receives another letter from ADGP, Karnataka Lokayuktha asking him to rectify some of the errors found in the sanction order. This PW. 5 makes it very clear that he was the appointing as well as the dismissing the AGO cadre officials and as he was satisfied with the fact that there were prima-facie materials to launch prosecution case against the accused under Sec.13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988, he accorded sanction vide Ex.P. 39 and got identified his signature on the document at Ex.P. 39(a).
20. The prosecution has also taken pains to 27 Spl.C.C. No.21/2009 examine PW. 6 by name B.C.Pankaja and her role in this case seems to be very little. According to this lady, during the year 1988, she was working as an Assistant Revenue Officer of BBMP and since she received a requisition from Lokayuktha Police Inspector, she issued true statement of property tax paid in respect of property No.11/1, Amarjyothi Nagar, Govindarajnagar, Bengaluru and that document came to be marked at Ex.P. 41. This witness has not been cross-examined by the accused because, this Ex.P. 41 is an undisputed one.
21. Coming to the evidence of PW. 7 by name C.N.Anand, who was the Assistant Executive Engineer attached to the Karnataka 28 Spl.C.C. No.21/2009 Lokayuktha and according to him, he receives a letter of request from his superior i.e. the Chief Engineer, who directed him to furnish the work estimation of costs of construction. It is the say of this witness that the properties which were shown to him for inspection work was House No.8, Paradise Apartment, situated at Prasanth Nagar, Bengaluru another house No.552, Mistique Nilaya, 16 th A Cross, 6th Sector, HSR Layout, Bengaluru, property No.63/53, Old No.506A, 4th Floor, Brookline Apartment, Ward No.86, Banasawadi Main Road, Bengaluru, then Farm House bearing Khatha No.33 and Sy.No. No.43/5, and from 44/2 to 44/4 which consisting of coconut trees and pump house. 29
Spl.C.C. No.21/2009
22. According to this witness out of 4 properties, he inspected items 1 and 2 on 31- 05-2006, but he did not inspect item No.3. There was a direction to him to value the costs of construction and he was of the opinion that item No.1 property formed one out of nine apartments reported to have been constructed during the year 1993 and the value of construction of that property was Rs. 3,55,000/-. In respect of 2nd item of the property, which consisted of ground plus two floors said to have been constructed in the year 2002-03 and the estimated costs of construction and expenditure was Rs. 26,93,000/-. As said earlier, he did not inspect item No.3 i.e. Brookline apartment. So far as 4th item, it consists of land with coconut 30 Spl.C.C. No.21/2009 trees, pump house, form house with a sheet roofed house and the estimated value was Rs. 1,55,000/-. This PW. 7 makes it very clear that he has not taken into consideration the value of the land nor measured the same as he was not instructed to do so in this direction. Likewise, according to PW. 7, he has also not taken into consideration the value of borewell and connected pump motor. According to PW. 7, the estimated value of fencing and gate erected was Rs. 55,000/- and he has followed the Schedule rates of the PWD building and as per Ex.P. 36, he has furnished his report.
23. Coming to the evidence of PW. 8 by name Jayadeva Prakash, who has served as a Joint 31 Spl.C.C. No.21/2009 Director in the Karnataka Lokayuktha for the period between 2007-2012 in Statistics Branch. This witness also claims to have received the letter from the IO on 25-02-2008 and he was directed to furnish details of the expenditure incurred by the accused and his family members on food during the period 07- 08-1984 to 21-09-2005. So, on the basis of the documents made available to him by the IO, he came to the conclusion that a sum of Rs. 4,75,498/- has been spent towards the expenditure on the food. He has given Ex.P. 42 which is a report in this regard.
24. Coming to the evidence of PW. 10 by name S.M.Srinivas, who was the SDA attached to the office of the Assistant Director 32 Spl.C.C. No.21/2009 of Land Records, Bengaluru. On 23-09-2005, he was summoned by the Lokayuktha Police Inspector and he along with Lokayuktha Police staff reached the house of the accused at HSR Layout, Bengaluru on 23-09-2005 at about 12.35 PM. One Smt.Geetha, wife of the AGO opened the door. This PW. 10 being the Mahazar witness has given evidence as to what were the articles found in the said house. According to this witness, spot panchanama at Ex.P. 7 came to be drawn. He too has affixed his signature on this document.
25. Coming to the evidence of PW. 11 by name Smt.Lakshmamma, according to his lady, property bearing house No.121 at 33 Spl.C.C. No.21/2009 Basaveshwara Nagar is owned by her and that since 15 years from the date of giving this deposition, she is residing in that house. According to this lady, her husband late Srikantaiah had purchased the house from KHB. This PW. 11 makes it very clear that she has not seen the accused and her husband had let out the house to a tenant and his name she does not know. According to this lady, she came to know that the name of accused as Anjinappa only when she came to give evidence before this Court. This evidence seems to be very formal and she denied her statement at Ex.P.72. This PW. 11 being a land lady also gives admission that she cannot take out the names of those tenants who are occupying in different 34 Spl.C.C. No.21/2009 tenements in the property. The burden is on the prosecution to show before this Court that how this evidence of PW. 11 made use in connection with this case.
26. Coming to the evidence of PW. 12 who was the Asst. Director of Agriculture at Doddaballapur between 2005 to 2008. In the month of December 2007, he receives a requisition from the Police Inspector, Karnataka Lokayuktha where he was requested to furnish the annual income of the lands in respect of land bearing Sy.No. 43/1 to 43/5 and 44/2 to 44/4 of Alahalli Village in Doddaballapura Taluk from 1999-2000 to 2006-07 and along with the said requisition, the Police Inspector has also sent copies of 35 Spl.C.C. No.21/2009 the RTCs pertaining to those lands.
27. According to this witness, he considered those RTCs more particularly in respect of the crops grown in the said land and on that basis, he has given estimation in respect of total gross income of the above said lands during the above said period as Rs. 1,23,977/-, out of this amount, he has deducted a sum of Rs. 59,620/- towards the expenses. So, the remaining amount of Rs. 64,357/- is the net amount which is the annual income from these agricultural lands. So, in this regard, he has given his calculation sheets which are marked at Ex.P. 74 and 75 in this case.
28. Coming to the evidence of PW. 13 by 36 Spl.C.C. No.21/2009 name M.Devarajappa, S/o T.M.Marulappa, who was the Senior Assistant Dy.Director of Horticulture at Doddaballapur. He also receives a letter of requisition from Dy.S.P., Karnataka Lokayuktha requesting him to visit the land standing in the name of Smt.Geetha in Sy.No. 43/1, 44/2, 44/3 and 44/4 of Halahalli Village of Doddaballapur. According to this witness, in view of the said direction contained in the said letter, he visited those lands and also verified the number of coconut trees existing over them. He found 185 coconut trees, out of which 74 were 12 years old and 111 coconut trees were 20-25 years old, out of the total 125 coconut trees, the yield from 74 coconut trees was too low for want of maintenance. So, the remaining 37 Spl.C.C. No.21/2009 coconut trees, he observed that the average yield was below the normal. According to this expert, on the basis of the yield of the coconut trees from the said lands, he calculated the income of the owner of the said lands as Rs. 1,81,000/- and its expenditure was Rs. 1,33,850/-. So, the net income of the said crop was Rs. 47,150/-. So he issued Ex.P. 76 and P.77 in this regard.
29. Coming to the crucial evidence of the IO PW. 9 by name Smt.Radhamani, according to her, she was the Dy.S.P., Karnataka Lokayuktha, Bengaluru for the year 2007 to 2011. On 04-12-2007, she has taken further investigation of this case from her predecessor one Mr.Shekar as per the directions of the 38 Spl.C.C. No.21/2009 S.P. She has given evidence as to what were the documents collected by her. According to this lady, she has recorded the statements of witnesses by name K.Ramdas, Vidyananda, Subbappa, Dinesh, Sundarmurthy, Cheluvaraju, Byrappa and etc. According to this lady, after completing her investigation, she has submitted her final report to her superior on 08-08-2008. On 25-03-2009, she submitted a charge sheet to this Court.
30. According to this PW. 9, on 04-03-2008, she received explanation in the form of schedules from the accused. The claim of the accused for having borrowed a loan of Rs. 8 lakhs from Govindappa to purchase an apartment was not considered by her. 39
Spl.C.C. No.21/2009 Likewise, according to this PW. 9, the claim of the AGO that he borrowed a loan of Rs. 3,50,000/- from one Venkataramanappa for construction of building at HSR Layout was not considered by her. Again this lady further goes on to give evidence that another loan claimed to have been borrowed by the AGO in a sum of Rs. 4 lakhs from Venkatesha is also not considered by her.
31. According to PW. 9, the accused also claimed to have sold his site to one Mohan Padma of Andhra Pradesh for a sum of Rs. 3,50,000/- and in this regard, she had issued a notice to the accused to secure that Mohan Padma, but the accused has not secured that person. So far as another loan of AGO in a 40 Spl.C.C. No.21/2009 sum of Rs. 5 lakhs from his mother-in-law Smt.Sanjeevamma was not considered, because PW. 9 undertook an enquiry and she came to know that Mrs.Sanjeevamma is not in a position to lend money. In respect of another loan in a sum of Rs. 3,50,000/- claimed by the AGO or his father-in-law was also not considered by the IO, because, on an enquiry, it was found by PW. 9 that it is a false claim.
32. According to PW. 9, the AGO had claimed that he had purchased an apartment at Brookline building for a sum of Rs. 9,75,000/- in the year 2000 and he claimed to have sold the said property to his mother- in-law Smt.Sanjeevamma for a sum of Rs. 41
Spl.C.C. No.21/2009 7,50,000/- during the year 2003, subsequently, Smt.Sanjeevamma is said to have bequeathed this property to the daughter of the accused in the year 2003. So, this claim of the accused was not considered and that property was taken as one belonged to the accused as the arrangement made by the accused and the documents were false.
33. It is also in the evidence of PW. 9 that the accused has received funds worth Rs. 48,12,515/- from M/s.Innova Securities, but this AGO has given a statement that he has not received any funds from that Innova Securities. Likewise, the claim of the accused as income received by his wife from Beauty Parlour in a sum of Rs. 14,05,550/-. In this 42 Spl.C.C. No.21/2009 regard, this IO has undertaken investigation by enquiring the building owner Smt.Pankaja and Asst. Savitha and had came to her knowledge that this claim is also fake. So, according to PW. 9, during her investigation, she came to know that for the check period i.e. from 1984 to 2005, assets of the AGO was Rs. 81,76,539/-. Subsequently, this PW. 9 got produced the Will which came to be marked at Ex.P. 71 contended that the mother of Smt.Geetha i.e. Sanjeevamma had executed a Will in favour of her grand-daughter Smt.Uma in respect of the property which was purchased by her. This PW. 9 by way of further clarification again was further examined by the Learned Public Prosecutor on 01-12-2021 and according to her, as soon 43 Spl.C.C. No.21/2009 as the accused furnished the schedules at Ex.D. 1 and D.2, during the course of investigation, she came to know that the AGO had let out a house situated at HSR layout, property No.552, 2nd floor in favour of one Mr.Veerabhadraiah, who was a practicing advocate at Bengaluru. The lease amount was Rs. 9 lakhs. So, in this regard, according to PW. 9, she issued notice to this person notifying him to appear before this lady. In spite of receipt of the same, said Veerabhadraiah did not appear before her. So, according to this lady, she has not considered the said lease amount. It is also in her evidence that during the investigation, she came to know that the AGO had not declared Rs. 9 lakhs which was received from 44 Spl.C.C. No.21/2009 said Veerabadraiah.
34. According to PW. 9, she came to know during the investigation that this AGO had obtained hand loan in a sum of Rs. 1,95,000/- from IND Bank Housing Ltd., Richmond Circle branch, Bengaluru for the purpose of construction of a house at Flat No.11 situated at Prashanth Nagar, Bengaluru. So, in this regard, the relevant document at Ex.P. 78. According to PW. 9, earlier PW. 1 who was the first IO had written a letter to the KSDL seeking for furnishing service details in respect of the AGO. Likewise, on 11-6-2008, she had written a letter to the Post Master, GPO, Bengaluru seeking information in respect of NSCs purchased by the AGO. According to this PW. 45
Spl.C.C. No.21/2009 9, the AGO through schedules had provided information that his wife Smt.Geetha was running a Beauty Parlour at Basaveshwara Nagar, Bengaluru from 1998 to 2008. So, this IO claims to have visited the said shop and enquired with the building owner and came to know that the said shop premises was let out on a monthly rental of Rs. 2000/- and a yearly hike of Rs. 200/- to Smt.Geetha. It is also the claim of PW. 9 that said building owner told this IO that there was a lease agreement entered into between him and Smt.Geetha. So, she has calculated the rentals on this basis till the date of raid which comes to Rs. 2,01,000/-. According to PW. 9, she has also recorded the statement of Smt.Pankaja, who was the land owner and 46 Spl.C.C. No.21/2009 also the Assistant of Smt.Geetha at that Beauty Parlour by name Kum.Savitha. According to PW. 9, these were the documents collected by her and having completed the investigation, she filed her charge sheet against the accused.
35. When we look into the examination-in- chief of this IO, PW. 9, she has categorically stated that she has rejected the explanation offered by the AGO vide Ex.D. 1 and D.2 in respect of different hand loans raised by him for the purpose of either purchase of flats or for putting up a house construction. It is the claim of PW. 9 that she has looked into the documents and she did enquire and came to know that either they are false claims or fake claims.
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36. On the other hand, the AGO who having submitted schedules at Ex.D. 1 and D.2 was again and again contended that fair investigation has not taken place. Again he were to repeat that mere collection of documents are no investigation at all. According to DW. 12, there was no proper application of mind on the part of PW. 9 and in spite of providing documents in respect of disputed items of either assets or income, they have not been properly considered. It is the say of DW. 12 that on account of incorrect and incomplete investigation under taken by the PW. 9, he was forced to examine DWs.1 to 12 by getting marked Ex.D. 1 to D.122.
37. The AGO got examined DW. 1 by name 48 Spl.C.C. No.21/2009 Govinda Bhat S/o Vinayak Bhat. According to this AGO, DW.1's evidence becomes not only pivotal, but plays a crucial role in highlighting as to how PW. 9 involved in distorting the real facts before the Court. This DW.1 in his evidence states that he knows Smt.Geetha and she is his client for the past 4 to 5 years when he deposed. According to DW. 1, he is a practicing Chartered Accountant and Smt.Geetha approached him for filing her income tax returns and she has requested him to prepare a report regarding her income since the present case was registered before this Court. According to DW . 1, he prepared two certificates, they are regarding the income and assets of Smt.Geetha. Through this DW.1, Ex.D. 3 and 4 came to be marked 49 Spl.C.C. No.21/2009 respectively. According to DW. 1, he gave these certificates considering the income of Smt.Geetha from the year 1998-99 to 2005-
06. So, as per Ex.D. 3 and 4, this Geetha had income from running a Beauty Parlour, she had agricultural income and also capital gains as she dealt in sale, purchase of immovable properties, shares and debentures. According to DW. 1, the total income of Smt.Geetha for the period 1998-99 to 2005-06 was Rs. 42,16,155/-. Apart from this income, Smt.Geetha had availed the loans from bank and private individuals, which was to the tune of Rs;12,07,573/- as per Ex.D. 4.
38. Another witness by name Sri.K. Venkataswamy S/o K. Chikkanarayanappa has been examined, who is the younger 50 Spl.C.C. No.21/2009 brother of DW. 12 and according to him, in the year 1999-2000, he had advanced interest free hand loans of Rs. 1,80,000/- to AGO, DW. 12 on installment basis. At that particular period, this DW. 12 was working as the Asst. General Manager in BEML and was an income tax assessee. This DW.2 also speaks about his father advancing Rs. 3,50,000/- in the year 2004-05 to AGO. According to this DW. 2, loan amount was paid through pay order/instrument. According to him, his father had a site at Nagarbhavi and he received a sale consideration of Rs. 11 lakhs. Apart from this DW.2's father was also owning 3 acres of land at Gundlaguriki Village of Chikkaballapur District. His father was having a bank 51 Spl.C.C. No.21/2009 account with the State Bank of India, Doddaballapura and he died on 05-01-2005.
39. Coming to the evidence of DW. 3 by name Dr.Srinivas,who is the elder brother of DW.
12. According to this witness, he completed his MBBS degree in the year 1993 and initially started his practice at Kerala for about 2 years. Then he did his post graduation at the Bengaluru Medical College and while doing that course, he was practicing on medicine on part time basis. So, at that time of practice, he used to stay with AGO. AGO used to go out of Bengaluru for about 15 to 20 days in a month as he was serving on marketing side with the Karnataka Soaps and Detergent Ltd. According to DW . 3, he was also using the car and telephone 52 Spl.C.C. No.21/2009 connection of the AGO. So, he used to bear the expenses. According to DW. 3, he also looked after the educational expenses of the eldest son of the accused by name Anil since he was staying with him. From 1996-97 to 2002-03 when Anil was studying 6th Standard to 12th standard, he has looked after his educational expenses and claims that he has spent a sum of Rs. 3,75,000/- for meeting the educational expenses. According to DW. 3, at that particular juncture, he had no any other responsibility.
40. Coming to the crucial evidence of DW. 4 by name K.R.L.Raju who was the Director of the M/s.Innova Securities and Investments Ltd., Bengaluru. According to this witness, he knows this accused and that he was his 53 Spl.C.C. No.21/2009 client. DW.4 further states that their firm was dealing in shares broking business and this AGO approached for trading in shares. Likewise, Smt.Geetha was also their client. They used to maintain separate accounts for each of the client. So, when the Lokayuktha police have sent a letter seeking for information as per Ex.D. 7 and 8, they have furnished the information. It is also the say of DW. 4 that as per Ex.D. 10, this accused was due to pay a sum of rs;48,12,515-80 as on 30-10-2005. Subsequently, this AGO had repaid the said amount to their firm. So, as per Ex.D. 10, as on 21-09-2005, the accused owed a sum of Rs. 58,82,465-43. So, by issuing Ex.D. 9 and D.10, this DW . 4 reaffirms and states that contents referred 54 Spl.C.C. No.21/2009 therein are true and correct.
41. Coming to the evidence of DW. 5 by name Smt.Geetha, wife of Anjinappa, when this Court has analyzed the entire materials, the main grievance of the AGO seems to be that, fair investigation has not taken place for the fact that the assets and income of DW . 5 has not at all been considered. It is the say of the AGO that in spite of furnishing Ex.D. 1 and 2, this PW. 9 made least attempt to look into the merits or demerits of those documents. According to DW. 5, DW. 12 is her husband. Their marriage took place in the year 1981. They have 3 children by name Uma, Anil and Sunil. According to her, Uma got married and now staying in the United States, her eldest son Anil is a MBA graduate from IIM, 55 Spl.C.C. No.21/2009 Ahamadabad and working at the Aple Company in Bengaluru and her 2 nd son Sunil is also a MBA graduate from IIM, Lucknow, and settled at London. After her marriage, according to DW. 5, she started her saree business in Bengaluru and she used to purchase sarees from Doddaballapur then printing, embroidery work and screen printing used to take place at Madivala, Tavarekere and Audugodi of Bengaluru, then finally she used to sell them. According to this DW. 5, she was trading shares with M/s.Innova Securities Pvt. Ltd. She had invested portions of her earnings for purchase of flat at the Prashanth Nagar. She had also invested portions of her earning for establishing beauty parlour at Basavaveshwara Nagar, 56 Spl.C.C. No.21/2009 Bengaluru by taking training in this regard. In this regard, the material document at Ex.D. 11 to 13 came to be marked through her. According to DW. 5, she has taken training in beauty parlor course at Beau Belle beauty institute, Rajajinagar, Bengaluru where she worked for 6 months. According to this lady, she has taken license for running the said beauty parlor and that document is also placed before this Court.
42. According to DW. 5, there were three assistants who were assisting her to run the said beauty parlor and she used to pay them salary and even her daughter Uma was also assisting her, she was paid Rs. 4,500/- as salary p.m. According to DW. 5, as she is an income tax assessee, she has declared all 57 Spl.C.C. No.21/2009 these aspects in the ITRs for the relevant financial years.
43. It is also in the evidence of DW. 5 that she has purchased agricultural lands at Alahalli, Doddaballapura Taluk and in respect of the crops grown, she has obtained the yield certificate from the Village Accountant. According to DW. 5, she has received the income of Rs. 10 lakhs from her landed property and this has been declared in the ITR for the relevant financial year. It is the evidence of DW. 5 that her mother Smt.Sanjeevamma was staying in her house and she has executed two affidavits certifying that she has given movable and immovable properties to this DW. 5 and those documents are marked at Ex.D. 39 and 40.
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44. It is the serious objection raised by DW . 5 that Lokayuktha police while conducting raid of their house have prepared a mahazar in which they have shown excess inflated prices and rates for the articles and utensils found therein. Even at the time of their marriage, DW. 5's parents had given 680 grams of gold, 3 Kgs. of silver articles including house hold articles.
45. Likewise, her in-laws were also given 100 gms. of gold ornaments and this has been declared in annual property report of AGO. According to DW. 5, there was a house and shed which had a borewell connection and that land was purchased by her at Avalahalli Village. There is a RTC entry found in the 59 Spl.C.C. No.21/2009 RTC extract. She also claims to have purchased a site at Amruthahalli in the year 2003 and that was sold subsequently for a sale consideration of Rs. 14,50,000/-. According to DW. 5, she got purchased a flat at Prashanth Nagar by borrowing the loan from IND Bank housing Ltd. and she had produced the certificate at Ex.D.42 and 43 in this regard. According to this witness, she borrowed a loan of Rs. 5 lakhs from her mother Sangeevamma while purchasing the agricultural land at Doddaballapura. Apart from this, she had borrowed a sum of Rs. 4 lakhs from one Venkatesh for purchasing the site at Amruthahalli and the AGO had purchased a flat at Brookline apartment, subsequently that was sold to Sangeevamma 60 Spl.C.C. No.21/2009 for repayment of the loan amount of Rs. 5,00,000/-.
46. According to this witness, when she was doing Saree business. She used to purchase the sarees from one Rangappa at Doddaballapura twice in a year. According to this lady, embroidery and screen printing on those sarees used to be done in a factory at Tavarekere. According to DW. 5, she used to get income as profit of Rs. 100 to 200 per saree for particular years. According to her, she had a bank account at Vijaya Bank and she was operating the same independently. So, as far as this witness was concerned, an effort was made by the prosecution to show that this lady had no independent source of income. What is not disputed is, that DW . 5 61 Spl.C.C. No.21/2009 being an income tax assessee declaring in respect of purchase of immovable properties, dealing in shares and debentures through M/s.Innova Securities Ltd. and lastly running a Beauty Parlour at Basaveshwaranagar, Bengaluru.
47. So far as income and assets of DW . 5 are concerned, when the evidence of DW. 1 and Ex.D. 3 and 4 are taken note of, they lend new lease of life and this ocular and documentary evidence become realistic.
48. Coming to the evidence of DW. 6 Veerabadraiah, who is a practicing Advocate and he has been examined by the AGO for the fact that the prosecution has denied that he was a tenant of AGO at one point of time. 62
Spl.C.C. No.21/2009 According to this witness, the AGO owns a flat at HSR Layout. On 03-06-2005, he takes two portions of that house on lease basis for a lease amount of Rs. 9 lakhs. According to him, it was a well furnished house and Ex.D. 44 has been produced by this witness. When he was summoned to the Lokayuktha office, he also filed a separate affidavit. When raid was taken place, Lokayuktha police have entered his house without his consent, on that particular day, he was not present and police have drawn the mahazar at Ex.P. 7. But, the sum and substance of this witness's evidence is that items mentioned at Ex.P. 7 which are referred by this witness in examination-in-chief exclusively belongs to him and not to AGO and this evidence has 63 Spl.C.C. No.21/2009 been given that PW. 9 has wrongly considered, because those items or articles were found in the house at the time of raid are belonged to DW. 6.
49. Coming to the evidence of DW. 7 K.Nagaraj. He is the younger brother of DW . 12 and according to him, he had paid a sum of Rs. 2,95,000/- towards the educational and school fees of AGO's second son Sunil. When the said Sunil was studying at the Mountford School, he paid a sum of Rs. 2,95,000/- and said Sunil was studying at the Nafal college, he paid a sum of 98,000/-. So through this witness, Ex.D. 68 and 83 came to be marked.
50. One notable aspect which this Court has 64 Spl.C.C. No.21/2009 unearthed is that wherever PWs. 1 and 9 have not undertaken clear and proper investigation, those vacuums have been tried to be covered up by them by examining witnesses on the defence side. Because, when we look into the educational expenses of the children of the AGO, definitely one cannot find any clarity at all. Even I should say that PWs.1 and 9 who ought to have given explanation as to the educational qualifications and social status of the AGO and his family members, this minimum work they have not done. So, this evidence of DW. 7 is to fill up that vacuum which prosecution has failed to fill it up.
51. Coming to the evidence of DW. 8 by name 65 Spl.C.C. No.21/2009 Rajanna, who was a Civil Engineer and having come to know that this AGO was owning a site at Amruthahalli, he purchased the same for a sum of Rs. 14,85,000/- and he paid an advance amount of Rs. 12 lakhs and sale deed came to be executed in this regard on 10-07-2006. So, this witness was examined to show that Amrutha halli site is not available for consideration by PW. 9.
52. Coming to the evidence of DW. 9 by name M.Narayanappa, who is an agricultural consultant who came in contact with Smt.Geetha and she approached him for getting valuation of crops grown in landed property. This DW. 5 Geetha is owning 8 acres 11 guntas of land in Alahalli Village at 66 Spl.C.C. No.21/2009 Doddaballapura and he visited the said land and identified the borewell in the said land and ragi was grown in 4 acres of land and in one acre of land, mulberry crops were grown. So, on the basis of his expertise, Ex.D. 62 to 73 were issued. According to this DW. 9, he has taken into consideration the revenue entries in RTC for the purpose of considering the yield and type of crops. So, as per his reports, DW. 5 got income of Rs. 12,85,208/- for the years 2000-01 to 2004-06. This Ex.D. 68 to D76 came to be marked as there is a complete go by given by PW. 9 while undertaking investigation in respect of these agricultural lands. One can witness the fact that there is no material to show that what explanation offered by the AGO in Ex.D. 1 67 Spl.C.C. No.21/2009 and D.2 is accepted by PW. 9.
53. It is not the case of PW. 9 that the entire explanation offered by DW. 12 in Ex.D. 1 and D2 are incorrect or false. When this rudimentary aspect is not cleared, question of claiming that thorough investigation had been undertaken can only become a figment of imagination.
54. Coming to another witness by name Chandrashekar, I should say, he is a star witness. Because, he is a person dealing in share business, he claims to know the accused for past 10 years when he gave his evidence. He says that the AGO approached him to sell his share which was held by him. DW.10 makes it clear that the AGO had undertaken many transactions, whenever 68 Spl.C.C. No.21/2009 AGO sells the shares to this DW. 10 he had issued acknowledgements. Some such receipts are at Ex.D. 77 to 80. According to this witness, he has got documents to show that this AGO was dealing in shares for many years.
55. Coming to the evidence of another expert by name Nagaraj Daththreya Bhat. He is the expert in the field of Horticulture and he has been joined as Panel Valuer as he runs an agricultural consultancy given reports in various cases pending at Sirsi Court. According to DW. 11, it is in the capacity of Court Commissioner, he has undertaken valuation of horticultural crops which was sub-merged in the area of Kali Hydro Electricity Project. Coming to the case on 69 Spl.C.C. No.21/2009 hand, in the year 2000, he was asked to do the landscaping work of AGO property at Doddaballapura. Subsequently, AGO dropped that project, but DW. 11 is in continuous touch with DW.5 and 12 and they seek his advice. According to DW. 11, he was requested to give a report in respect of the crops grown and the income derived thereon. So, on 14-12-2005, he visited those agricultural lands and had issued Ex.D. 101.
56. According to DW. 11, he on the basis of his expertise in the horticultural field and as he is practicing agriculture and horticulture has issued that report. Again this both oral and documentary evidence plays a major role in deciding the fact as to whether DW. 5 and 70 Spl.C.C. No.21/2009 12 had income from both agricultural and horticultural sources. Now, if either PW. 1 or PW. 9 are taking a unilateral decision either in accepting or rejecting the claim of husband and wife in respect of assets, expenditure or income, they must have some basis. In this regard, when we fall back on the evidence of PW. 9, she has categorically rejected the claim of DW. 12 that both himself and his wife have raised loans from private individuals. The prosecution or its witness should not forget the fact that first they must place the materials beyond reasonable doubt. Now, they cannot claim that since the accused has not produced any documents, hence, this Court has to draw adverse inference against the accused. So far as various source of 71 Spl.C.C. No.21/2009 income claimed by the accused, this Court is of the firm opinion that both IOs. PW.1 and 9 have not done correct and complete work.
57. Coming to the crucial evidence of DW. 12, who is the AGO by name K.Anjinappa. The examination-in-chief of this witness plays a very important role, because, most of the evidence given by this witness is nothing but what is found in schedule at Ex.D. 1 and D.2. In the beginning, this PW. 12 has spoken about his family set up. According to him, they were 6 brothers and one sister, he is the second in the number and he completed his electrical engineer in the year 1976 and obtained MBA degree from the Indian Institute of Management, Ahamadabad in the year 1978 and immediately he joined HMT as 72 Spl.C.C. No.21/2009 the regional Sales Manager. According to this witness, his other three brothers were engineers and one is a Doctor and last brother is an agriculturist and weaver by profession. According to him, all of them including himself are married.
58. This DW. 12 tries to touch those grey areas which were not spoken by either PW. 9 or DW. 5 in their respective evidences. According to him, his elder sister-in-law was running a Boutique and she died in the year 2005. His younger brother Dr.Srinivas's wife is also a Doctor and she is an Assistant Professor in Bio-Chemistry. His another brother Nagaraj's wife is an Income Tax Inspector and according to him, they are all well settled. This witness again re-adduced 73 Spl.C.C. No.21/2009 that he had three children and his brother Srinivas completed his MBBS in the year 1992-93. Immediately after obtaining the medical degree, he started his medical practice at Bengaluru, then, he enrolled for doing post graduation in at the Bengaluru Medical College and while he pursuing his graduation studies, this Doctor was also practicing medicine on part time basis. At that time, Srinivas used to stay in the hostel and was using this AGO's Fiat Car. According to DW.12, his mother had agricultural land at Gundalagurki Village of Chikkaballapura Taluk and his father used to grow ragi, onion, potato and other vegetables season wize and used to give those food grains and vegetables to him.
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59. According to DW. 12, soon after his marriage, DW.5 started her saree business, subsequently she opened a Beauty Parlour at Basaveshwaranagar, Bengaluru. Again, there is a reaffirming by this witness that DW. 5 used to purchase plain silk clothes from Doddabhallpura and used to get printed at Audugodi and Tavarekere and used to sell the printed sarees. So, depending upon the demand of the customers, his wife used to make embroideries on those sarees. According to him, when he was working at HMT, he used to travel about 20 days of a month, then he joined Karnataka Soaps and Detergents Ltd Bengaluru during the year 1984 as Marketing Manager and his job required extensive traveling all over the country.. He 75 Spl.C.C. No.21/2009 had to travel minimum 15 days in a month and while on travel, he used to purchase sarees and those sarees were also to be sold by DW. 5 and they were getting profit of Rs.100 or 200 on each saree. According to DW. 12, his travel was covered with TA and DA from his company. He was also getting incidental expenses towards purchase of newspapers, etc. According to him, he purchased Premier Padmini Car in the year 1988-89 and from his company used to bear the expenses of using that vehicle and he used to use the vehicle for official purposes on kilo meter basis. According to DW. 12, he sold that car in the year 1998 for Rs. 40,000/- to the Company Employee by name Veerabadraiah. From that amount, he 76 Spl.C.C. No.21/2009 received and by borrowing loan from Standard Chartered Bank, he purchased Fiat Uno Car during the year 1999.
60. In respect of this witness getting other sources of income he has also given evidence in this regard. He had let out a house at Maruthisevanagar, Banaswadi and till 2004, he used to get rent from that house and till 2004, he was getting rentals every month. He sold that house in the year 2004 and all the rents received from his tenants were through cheques. They were remitted to his bank account at Corporation Bank, Yeshwanthpura Branch. In this regard, he had placed a bank statement, which is marked at Ex.D. 102. It is also the evidence of this witness that he had another house at HSR Layout at 77 Spl.C.C. No.21/2009 Bengaluru, that house was constructed by him in the year 2004 by purchasing the site from BDA. That house consists of ground, first and second floor and he had let out ground and first floor of that house on rent and second floor on long term lease to an Advocate by name Veerabadraiah, DW. 6 and in this regard, he has placed Ex.D. 44. So far as tenants in the ground and first floor of that building used to pay the rent by crediting the same to his band account at Corporation Bank and ICICI bank, Bengaluru. He also admits for having received the advance amount from those tenants.
61. He gave evidence in respect of disputed aspects of borrowing loan. According to him, he borrowed a loan of Rs. 3,50,000/- from his 78 Spl.C.C. No.21/2009 father and another similar amount from one Venkatarayappa. This Venkatarayappa paid the loan amount to him by way of cheque.. So as per his bank statement at Ex.P. 47, there is a reference about this loan given by his father and Venkatarayappa. So here, if we recollect the evidence and explanation given by PW. 9 that she has not considered these two loans, because, there were no documents. According to me, this Ex.P. 47 should be an answer to that.
62. According to this DW. 12, the said Veerabhadraiah also given statement before the Police Inspector, Lokayuktha in this regard, which is already marked at Ex.P. 68. Further, in this witness evidence, this witness 79 Spl.C.C. No.21/2009 states that as his father was a Kartha and Head of the family, he has looked after the educational expenses of all his brothers and he has nourished them and brought them up. As his father basically a weaver, he had 10 handlooms and he used to produce the blended sarees of art and pure silks. These kinds of sarees are used for decorating the deities or goddesses. So, his father used to sell about 500 to 1000 sarees during Durga Pooja every year so they were in demand and were sent to Culcutta in and around Durga Pooja celebrations. According to DW . 12, his wife's total saree income during the check period comes to Rs. 36,28,288/- . In this regard, he has placed a document at Ex.D.
103. Likewise, he has also placed ITRs which 80 Spl.C.C. No.21/2009 are at Ex.D. 104 to 110. It is the say of this witness that initially every year he has filed is APRs before higher authorities, some of them also been marked in this case at Ex.D. 111 to D.117. Further, according to this witness before he could join the KSDL, he was working with HMT, so he had both salary and PF when he was serving at HMT. But, the Karnataka Lokayuktha have considered only his PF amount of Rs. 25,021/- as his income, but have not considered his salary of Rs. 1,25,000/-. Again, if I refer back to either the evidence of PW. 1 or 9 for having not considered either the salary or perquisites, which this DW. 12 received from HMT, there is no acceptable explanation offered.
63. During the course of arguments, the 81 Spl.C.C. No.21/2009 learned counsel for the accused tried to demarcate as to what is the role of the investigating officer in a case of present nature by taking help of the decisions of the Hon'ble Apex Court and Hon'ble High Court of Karnataka which have been cited in my further discussion, argued that when the IO produces the documents before the Court, their duty does not end there. According to him, when PW. 9 comes to the conclusion that this DW. 12 was not at all an employee of the HMT, there must be some evidence. In the instant case, according to him when this DW. 12 by way of schedules and documents has shown that he was a sales/Marketing Manager with HMT from 1978 to 84, those documents have not been cross checked by 82 Spl.C.C. No.21/2009 PW. 9. So, according to him, Sec.20 of the Prevention of Corruption Act, 1988 is applicable to this accused and not to the prosecution, because the prosecution shall have to prove its case beyond all reasonable doubt. But, when it comes to the duty of the AGO, he has to rebut the presumption which is available. When PW. 9 states that, this AGO did not receive any salary or income from HMT in order to counter the same and further to show that intentionally that IO has taken income of him on lower side and has inflated the figures in respect of assets and expenditure only to implicate the accused in this case is, in that regard, to prove his stand and rebut them this evidence is lead by DW.
12. I concur with this submission because, 83 Spl.C.C. No.21/2009 when DW. 1 to 12 evidences were gone through and Ex.D. 1 to D.122 are looked into, it is quite but natural as PW. 9 either has not considered those documents or not has undertaken investigation in a proper manner, quite naturally, the burden of proving these aspects was taken on the shoulder of DW. 12. So, under such circumstances, the bald say of PW. 9 that this DW. 12 has no income from HMT company cannot be blindly accepted at all. According to this DW. 12, they were totally 5 family members. His daughter Uma was eldest, after her marriage, she settled at the United States and his first son is working at Bengaluru, 2nd son Sunil is at London. According to DW. 12, the Karnataka Lokayuktha have not considered his 84 Spl.C.C. No.21/2009 agricultural income as Rs. 1,11,507/- All the agricultural lands stands in the name of DW . 5, but the actual income they got from agricultural land was Rs. 11,09,500/-. In this regard, according to DW. 12, they have placed Ex.D. 3. I will discuss each of these documents, when I take up income aspect of the AGO and his family members. It is also the say of DW. 12 that agricultural income has been declared by DW. 5 in her respective ITRs which are Ex.D.22 to 29. Likewise, there is a reference in examination-in-chief that he has also got examined the expert to substantiate his claim that the agricultural income was Rs. 11,09 500/- and not Rs. 1,11,507/-.
64. It is also the grievance of this witness 85 Spl.C.C. No.21/2009 that the Karnataka Lokayuktha have not considered the rentals received by him for the purpose of computation. According to him, he received an amount of Rs. 2 lakhs as the advance from one of the house leased by him. This rental advance was directly credited to his bank account and this amount he got declared in his APR at Ex.D. 114. Likewise, according to him, while leasing out the 2nd floor of the HSR Layout property, he had received an advance of Rs. 9 lakhs and this has also not been considered by PW. 9. In this regard, according to him, he examined DW. 6 and Ex.D. 44 came to be marked.
65. According to this witness, the main crunch or the substantial amount he got it was from his share business. So, in respect 86 Spl.C.C. No.21/2009 of item No.11, the Karnataka Lokayuktha has not considered any amount as the income from the share transactions made by him with M/s.Innova Securities Pvt.Ltd. An amount of Rs. 58 lakhs was shown as a debit balance in respect of the share transactions and this was not considered by Karnataka Lokayuktha. So, this amount he got it declared through Ex.D. 114. Likewise, it is the grievance of this witness that the Karnataka Lokayuktha has not considered any amount received by him from one Govindappa at Rs. 8 lakhs. This Govindappa gave a letter to the Lokayuktha at Ex.P. 67 and this was declared by him in Ex.D. 114. As per Ex.D. 121, he entered into an agreement with Govindappa and he has 87 Spl.C.C. No.21/2009 signed at Ex.D. 121(a).
66. According to this witness, the Karnataka Lokayuktha have not considered any amount i.e. a sum of Rs. 3,50,000/- which he received from one Venkatarayappa and a sum of Rs. 3,50,000/- borrowed from his father Chikkanarayanappa. I have already discussed in this regard in my preceding paras. So, these aspects were again highlighted by this AGO only to show that intentionally these omissions have take place only to see that the income of either DW. 12 or his family members are taken on lower side.
67. According to this DW. 12, the Karnataka Lokayuktha have not considered the amount borrowed by his wife as a loan from her 88 Spl.C.C. No.21/2009 mother Sanjeevamma. But, for having received a loan of Rs. 5 lakhs from her mother, DW. 5 has placed Ex.D. 4 and D.23. According to him, this witness had borrowed a loan of Rs. 4 lakhs from H.V.Venkatesh. This has not been considered by the IO, but he has placed Ex.P. 69 to certify this aspect. This witness also admits that he had borrowed a hand loan of Rs. 3,25,000/- from one Mohan Padma, but he has no document to show or substantiate the same. So this hand loan can be conveniently ignored by the IO while calculating the revenue as far as the income received either by the AGO or his family members.
68. Coming to the another important aspect that it is the evidence of this witness that PW. 89
Spl.C.C. No.21/2009 9 has wrongly taken a sum of Rs. 4,69,405/- as the income received by DW. 5 from her Beauty Parlour business, but as per the IT returns, she has declared that income as Rs. 15 lakhs.
69. Now the question which was highlighted by the Learned Public Prosecutor was that, merely if a person declares a particular income as the revenue received from a particular source, can it be blindly accepted? In the case on hand, it is the admission on the part of DW. 5 that her income from Beauty Parlour business was Rs. 15 lakhs. But, in the instant case, no efforts were made by PW. 1 or 9 to investigate the same.
70. Coming to the evidence of DW . 12, 90 Spl.C.C. No.21/2009 according to him, PW. 9 has shown a sum of Rs. 2,49,646/- as his income received from Dividends and bank interest. This was considered on the basis of Ex.P. 47 only. But, according to him, PW. 9 has not considered either Ex.P. 34 or Ex.D. 1 or D.2. Because, from these two documents, if a proper calculation is done, the net amount that will found is Rs. 4,50,000/-. So, this witness does not dispute an income of Rs. 1,50,000/- which was received by selling his Fiat Uno Car. According to this witness, he has received a sum of Rs. 19 lakhs as TA and DA. This amount has not been considered. According to me, he has placed Ex.P. 64. Again at the cost of repetition, it is stated that for having taken into consideration particular 91 Spl.C.C. No.21/2009 amount, valid reason has to be given and vice versa i.e. for a particular income under a particular head if not considered, even for that, cogent reasons have to be assigned by the IO. The discretion vests with IO only to use it by properly applying his mind. It is not as though this IO can adopt the method of pick and choose in his investigation.
71. According to DW. 12, he purchased a flat at the Brookline Apartment in the year 2004 and he received an amount of Rs. 7,50,000/- from selling of that flat and this was not considered by PW. 9, because, this sale consideration was received through two cheques. In this regard, he has placed Ex.P.
47. So according to him, this must have been considered and there is no materials placed 92 Spl.C.C. No.21/2009 by the prosecution to prove as to whether he has received any capital gains or not. According to this witness, a sum of Rs. 7,06,030/- was received by him as a capital gain, again this was not considered by the IO and he has banked upon Ex.P. 103. In respect of sale of his first Fiat Car in a sum of Rs. 40,000/- to Veerabadraiah, wherein he has received a sale consideration by way of cheque, this was also not considered by the IO. In respect of DW. 5 having cumulative savings of Rs. 5,12,573/- from her saree business was not considered. So, he has placed Ex.D. 4 and D.22 in this regard. According to him DW. 5 received gift articles worth Rs. 36,881/- at the time of opening ceremony of her Beauty Parlour and to 93 Spl.C.C. No.21/2009 substantiate this, they have placed Ex.D. 22 and 23. Again according to this DW . 12, DW. 5 had received a capital gain of Rs. 10,58,431/- which were declared in her ITR which are found at Ex.D. 3, Ex.D.22 to 24, 27 and 29. But, they have been well considered by the IO. Likewise, according to this DW. 12, PW. 9 has not considered a sum of Rs. 30,000/- as dividend in respect of share transactions. Likewise, a sum of Rs. 61,717/- interest amount DW. 5 received on her bank balance so in order to prove them, he has placed Ex.D. 3 and D.22 to 29. Likewise, it is the evidence of DW. 12 that DW. 5 purchased a site at Amruthahalli in the name of her minor son Anil and that site was sold for a sum of Rs. 14,85,000/- as per 94 Spl.C.C. No.21/2009 Ex.D. 67. Out of the said sale consideration, a sum of Rs. 12 lakhs was received during the check period, but this has not been considered by the IO.
72. Coming to the further evidence of this witness, before and after marriage of her daughter, she used to help DW. 5 in her beauty parlour business and Uma was paid Rs. 4,500/- p.m. as remuneration. This was also not considered by the Karnataka Lokayuktha. So according to him, as per Ex.D. 93 to 96, he has sold shares worth Rs. 33 lakhs in the year 2005. This was also not considered by the Lokayuktha. So, if these incomes are calculated and totaled, so his total income during the check period would be some where around Rs. 3 crores, but the 95 Spl.C.C. No.21/2009 Karnataka Lokayuktha has only considered it as Rs. 86,40,255/- only. Again this DW . 12 has given evidence that in respect of the assets owned by them, so far as item No.1 property, its value is considered as only Rs. 4,61,000/- and this is only on the basis of presumption and assumption. According to this witness, the costs of construction excluding site value comes to Rs. 2, 75,000/-. He also states that while constructing that house, he has made personal supervision and one Mr.Anand Engineer has visited that property to make the valuation of that house. So far as item No.2 of the asset is concerned, PW. 9 has shown the costs of construction of that house No.552 at HSR Layout as Rs. 27,42,900/-, but this is baseless. But the 96 Spl.C.C. No.21/2009 actual costs incurred for the construction was only Rs. 15,30,000/-. So, this witness has not disputed in respect of the valuation of item No.3 of the assets. So far as items No.4 to 6 in the list of assets, this witness has not disputed so far as item No.14 of list of assets. Already DW. 5 has deposed about that aspect and the amount relating to those shares have been cleared by him to the M/s. Innova Securities Pvt.Ltd. This witness also speaks about Two Wheeler Vehicle standing in the name of his daughter. As his daughter Uma was earning, she purchased that Two Wheeler. In respect of he spent about Rs. 30,000/- towards purchase of LIC policy and the first three installments in respect of that policy was paid by the Agent. This aspect 97 Spl.C.C. No.21/2009 has not been considered by PW. 9. In respect of gold ornaments, his wife has received the same by way of Sthreedhana property. Here we can recollect that a question was posed to DW. 5 in this regard, this witness says that the gold ornaments were given to her as Sthreedhana property. But, this Court is unable to understand as to what type of document can be produced to prove the fact of Sthreedhana property. Likewise, the silver items are concerned, according to DW . 12, those silver items were also received by his wife by way of Sthreedhana property. So, the sum and substance of examination-in-chief of this witness was to show that the IO in spite of providing documents by way of schedules has not considered the same. In his further 98 Spl.C.C. No.21/2009 examination-in-chief, this witness spoke about the IO not considering rental amounts, house advance, LPG Cylinder connection charges, so far as calculation is concerned. Likewise, the property at Alahalli Village at Doddaballapur Taluk was standing in the name of DW. 5 and at the time of purchase of that land, fence and shed were existing. Question of incurring expenses to the same according to him does not arise at all. So far as educational expenses of Uma are concerned, this witness deposed that she used to receive scholarship from the Government and they have been placed at Ex.P. 30. That has not been considered by PW. 9. So far as educational expenses of Anil and Sunil were considered, they were borne 99 Spl.C.C. No.21/2009 by DW. 3 and 7, who are the brothers of this witness. Lastly, this witness has driven home the fact that no meticulous investigation has taken place which has made this witness to examine other 11 witnesses and to produce voluminous documents at Ex.D. 1 to D.122.
73. It is the definite case of the prosecution that the accused and his family members had a total assets in a sum of Rs. 81,76,539/-. So, this acquisition according to them also included the source which was ill-gotten. In this regard, according to PW. 9, so far as property bearing No.11, Paradise Apartment, Kempapura, Prashanth Nagar, Bengaluru was valued in a sum of Rs. 4,61,000/-. This valuation was objected by the AGO on many 100 Spl.C.C. No.21/2009 counts. To begin with, this valuation done by PW. 7 itself is unscientific, incorrect and baseless. According to AGO, the report given by PW. 7 at Ex.P. 36 is an incorrect and baseless document. Because, PW. 7 has taken into consideration the construction cost excluding the sital value and there is no reference as to which year's schedule rates he has taken into consideration. So, according to DW. 12, the actual cost of construction of flat No.11, Paradise Apartment is only Rs. 2,75,000/-.
74. According to this AGO, as the burden is heavy upon the prosecution to prove this aspect, the legal position in this regard is that, unless and until the prosecution is able to establish that the properties value as per 101 Spl.C.C. No.21/2009 the opinion of the expert is reliable, this Court has no option but to discard it. According to the AGO, in case the prosecution fails to prove that, public servant either by himself or through any one else had at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known source of income, he would not be required in law to offer any explanation to satisfactorily account therefor. In this regard, he relies upon a judgment reported in AIR 2017 SC 3713, between Vasanth Rao Guhe Vs. State of MP, wherein the Hon'ble Apex Court has held as under and contended that this approach has not been adopted by the IO in this case.
"He is thus entitled to the benefit of doubt. The prosecution to succeed in a criminal trial has to pitch its case beyond 102 Spl.C.C. No.21/2009 all reasonable doubt and lodge it in the realm of "must be true" category and not rest contended by leaving it in the domain of "may be true". We are thus left unpersuaded by the charge laid by the prosecution and the adjudications undertaken (2009) 15 SCC 200 by the Courts below. The conviction and sentence, thus is set aside. The appeal is allowed."
75. In so far as this property is concerned, it is the evidence of DW. 12 that the costs of the site purchased by DW. 5 Smt.Geetha wife of accused is Rs. 1,06,000/- and the costs of construction as assessed by the Lokayuktha Engineer was Rs. 3,55,000/-. According to this DW. 12, the explanation and the analysis narrated for the valuation of the above said house is not correct. Because, after deducting 10%+2%+1% towards profit of contractors, curing and profit respectively as admitted by PW. 7, the costs of construction of the said apartment works out to Rs. 3,14,000/-. In 103 Spl.C.C. No.21/2009 this regard, so far as this calculation is concerned, he also relies upon a decision reported in 2017 AIISCR (Cri) 542 in the case of Selvi Jayalalitha Vs. State of Karnataka, wherein the Hon'ble Apex Court has allowed 20% of discount in view of several imponderables in estimation of costs of construction. So, according to this DW . 12, he prayed this Court to only consider Rs. 2,96,000/- as the value of the said apartment.
76. In this regard, when we go through the evidence of PW. 7 by name Anand, he makes it clear in his examination-in-chief that he was asked to take inspection and to submit his report in respect of work estimation of costs of construction. According to him, in 104 Spl.C.C. No.21/2009 his cross-examination states that, he does not know whether this flat was constructed on a personal supervision, he did not ascertain as to total costs and expenditure of the 9 apartments from the occupants, because, it is his definite case that this Paradise Apartment Flat No.11 was formed out of 9 apartments reported to have been constructed during the year 1993 and has come to the opinion that its value might be Rs. 3,55,000/-. Again in his cross-examination, he gives evidence that he did not ascertained the materials used for construction whether they were purchased from scrap dealers or from second hand dealers or from authorized dealers. According to this PW. 7, he did not further ascertain as to the date of purchase of sand and other 105 Spl.C.C. No.21/2009 construction materials for the purpose of construction of the said flat. This Court suo-moto posed a question to this witness as to what is his understanding regarding the value of land covered for construction when his estimate is only for the building. The answer was that the land value has to be taken into consideration for ascertaining the total costs of the building. According to him, in the present case, he has not taken the value of land. This is what the Court is tried to highlight in this judgment that a proper procedure has not been followed.
77. As PW. 7 is the author of Ex.P. 36, which is his report, when this report is carefully gone through, there are some grey areas this 106 Spl.C.C. No.21/2009 PW. 7 has failed to answer. According to him, as per Ex.P. 36, during his spot inspection, he observed that there are 9 flats in the said building, wherein vehicle parking facility was made available. According to this PW. 7, it was not practicable to evaluate the valuation of the single flat on the basis of measurements of the single flat owned by this AGO. Likewise, the detailed measurements of all the flats which were required to be taken by him to arrive at the total costs was also not done. Lastly, according to him, the valuation of the whole apartment is made, assuming that all the flats are more or less of equal floor area (built up area) and on the basis of sanctioned plan and measurements taken on the flat owned by the alleged owner, likewise 107 Spl.C.C. No.21/2009 Ex.P. 36 demonstrate complete non- application of mind of PW. 7 in assessing the cost of construction of the property. According to him, the year of construction was 1993-94 and as per the information furnished, item wise rate of building and the prevailing market rate was considered for the items which are not included in the schedule of rates. So, on this basis, PW. 7 has come to the conclusion that the construction of the said flat No.11 of Paradise Apartment works out to Rs. 3,55,000/-. Now, when this Ex.P. 36 was questioned in the cross-examination of PW. 7, he admits that no scientific approach was adopted by him and he is not able to convince as to how he assumed the total area of the said building. According to 108 Spl.C.C. No.21/2009 me, if a calculation goes wrong in respect of any one item of the properties, quite naturally, the result arrived at cannot be correct.
78. This Court also will have to look in to the other materials provided by the AGO. Undoubtedly, to accept the version of DW . 12 that flat No.11 of Paradise Apartment was only Rs. 2,75,000/- to which there are no any primary documents. But, the cardial principles of law is that as the burden is heavy upon the prosecution to prove this aspect, once the prosecution fails in this regard, then the version of AGO/DW.12 has to be accepted. So, according to me, as per his calculation, even after giving deductions to the contractor's profit and in view of the 109 Spl.C.C. No.21/2009 ratio laid down in Selvi Jayalalitha's case, if that method of calculation is undertaken, then this Court has to consider a sum of Rs. 2,96,000/- as the construction costs or valuation of the said Paradise Apartment as PW. 7 himself has admitted in respect of the calculation being unscientific, there is no rhyme or reason to accept the valuation of the said building was Rs. 4,61,000/-
79. Coming to the other property i.e. house No.552, HSR Layout, Bengaluru is concerned, according to PW. 9, the value of this property was taken to be Rs. 27,42,900/-. This is also seriously disputed by the AGO. According to him, so far as this property is concerned, the valuation is only Rs. 15,31,150/-, but the IO has committed a grave mistake. According to 110 Spl.C.C. No.21/2009 DW. 12, he was alloted a site with a dimension of 40 x 60 ft. by the BDA in the year 1996. The costs of the said site at that time was Rs. 50 lakhs. The costs of construction as per PW. 7 is Rs. 26,93,000/-. According to DW. 12, in the year 2002 he decided to build a residential unit and started construction of the same in the year 2002 and completed in the year 2004. The costs of construction is incurred by the accused is only Rs. 21,54,000/- and it was constructed under his personal supervision. According to DW. 12, he availed a loan of Rs. 12 lakhs from the Bengaluru City Credit Co.op. Society and the balance was funded by raising personal loans and making use of his savings. Again according to DW. 12, if Ex.P. 36 is looked into, 111 Spl.C.C. No.21/2009 it does not throw any light in this regard. Again PW. 7 admits the lapse in calculating the valuation costs. According to this DW. 12, the year of construction of the building was 2002. But, during the course of spot inspection by PW. 7, the foundation of the existing building was not cut open. Hence, a nominal depth and width of foundation and nominal reenforcement of RCC items are considered for valuation purpose. The super structure is assumed to be made up of solid concrete block masonry. So, these were some of the admissions culled out by DW. 12 to show that even in respect of valuing this property, PW. 7 has committed a mistake. So, according to DW. 12, it would not be justifiable to accept Ex.P. 36 as an 112 Spl.C.C. No.21/2009 impeachable evidentiary document in view of several imponderable. According to DW. 12, the sheer lack of data and the report makes unworthy of relying upon it and as Ex.P. 36 is baseless, cannot be safely relied upon by this Court. In fact, in the cross-examination of DW. 12, the prosecution was not able to impeach the creditworthiness of that witness with regard to that as valuation of that property No.552 of HSR Layout is incorrect and that of PW. 7 is correct. In fact, in the evidence of PW. 7, it is his examination-in- chief that IO did not take him to the house No.52, Mistique Nilaya of HSR Layout. But, in the cross-examination, he has given common answers to all the immovable properties inspected by him. So, this evidence of PW. 7, 113 Spl.C.C. No.21/2009 when read as an independent document conveys no fruitful meaning at all.
80. Coming to Ex.P. 36 at page No.2, it is his report that measurement of the said building constructed were taken on the day of inspection along with Police Inspector and police constable accompanied. This very say is contradicting to what is stated by PW. 7 in his examination-in-chief. According to this PW. 7, the prevailing market rates are considered, which are not included in the schedule of rates. The year of construction of building was 2002-03 as per the information furnished by the Police Inspector under his letter of reference. According to this PW. 7, the building was a residential building, comprised of first and second floor with car 114 Spl.C.C. No.21/2009 parking. He also gives description as to what are the accommodations found in that building. Finally according to this PW. 7, he has considered the valuation of the said building as Rs. 26,93,000/- by considering the schedule of rates for the year 2002-03 of Bengaluru circle and the respective market rates of the items which are not available in the schedule of rates, so this piece of report at Ex.P. 36 considered with ocular evidence of PW. 7 does not convey the fact that the value of Mystic Nilaya as per PW. 7 was Rs. 27,42,900/-. According to me, the claim of DW. 12 that this building was constructed under his supervision was also not considered by the IO. I have to concede that purchase of construction materials plays an important 115 Spl.C.C. No.21/2009 part. So long it is not identified as to whether all the construction materials used were from the wholesale traders or the retailers, it may not be possible to arrive at a conclusion. Likewise, the AGO himself has raised a doubt as to in Ex.P. 36, there is no reference as to whether all the construction materials used are new or second hand materials. So long as this scientific method is not adopted and so far as schedule of rates for 2002-03 is not supported with the alleged profit claimed by the contractors, till then the valuation of the property cannot be right. It is the admission of DW. 12 that the said 40 x 60 ft. site was allotted to him by the BDA and its costs was Rs. 50 lakhs. Whereas, according to PW. 7, the valuation of the building also includes 116 Spl.C.C. No.21/2009 costs of the site, but that has not been included here. So, looked from any angle, this amount arrived at by the IO in a sum of Rs. 26,46,900/- cannot be right. As I have said earlier, the burden is upon the DW. 12 only to rebut the presumption. In the instant case, according to him, as he undertook construction, by a personal supervision, so he was able to save some amount towards this. It is the say of DW. 12 that he raised a sum of Rs. 12 lakhs loan from Bengaluru City Co- operative Society and other hand loans from his friends. This aspect has not been denied by the prosecution. So, for all practical purpose, if an amount of Rs. 15,31,150/- is accepted as the value of the said property, it should in no way can go wrong so far as 117 Spl.C.C. No.21/2009 calculation in respect of that property is concerned.
81. In respect of different items of asset shown by PW. 9 in her charge sheet, this AGO does not dispute items No.3 to 5, 7 to 13, 15, 16, 18 and 23. So, he only disputes items No.1 and 2 which we have just now discussed, then items No.14,17, 19, 20 to 22 and 24.
82. Another contention taken up by the prosecution is that the accused has made properties in the name of DW. 5, Smt.Geetha only to suppress his ill-gotten wealth. But, on the other hand, it is the main limb of the argument on the part of DW. 12 is that when DW. 5 Smt.Geetha is an income tax assessee 118 Spl.C.C. No.21/2009 who had an independent source of income, intentionally that has been ignored or over looked by PW. 9 only to falsely implicate in this case. According to DW. 12, the law provides that when joint possession or acquisition of property is permissible in the name of a wife of the public servant and if she is able to prove that they are acquired through lawful source, then question of considering them as the source of income of the AGO does not arise at all. In this regard, the learned counsel for the AGO relied upon a decision reported in 1993 AIR SC 313 in the matter between M.Krishnareddy Vs. State by Dy.SP, Hyderabad, wherein the Hon'ble Apex Court has held as under:
" We are unable to appreciate that reasoning and hold that the prosecution has not satisfactorily 119 Spl.C.C. No.21/2009 discharged the expected burden of proof in disproving the claim of the appellant. Therefore, on the fact of these unassailable documents i.e. the wealth-tax and income-tax returns, we hold that the appellant is entitled to have a deduction of Rs. 56,240.00 from the disproportionate assets of Rupees 2,37,842/-."
83. Under such circumstances, according to AGO, the very stand of the PW. 9 in this regard that DW. 5 acted only as a benami holder of the property on behalf of the AGO falls to the ground. I am considering the role of DW. 5, because, PW. 9 has not taken into consideration the shares held by DW. 5 at Ex.D. 10, so also the AGO. Under these circumstances, so long as this aspect is not made clear, it will not be of any assistance to the Court in scrutinizing this document. In this regard, I would like to again fall back on the evidence of PW. 9, who has filed the 120 Spl.C.C. No.21/2009 charge sheet and not considered the shares held by both DWs.5 and 12. In the cross- examination of this IO, she admits that she has heard M/s.Innova Securities and Investments Pvt.Ltd. And through this lady, schedules at Volume-I & II came to be marked at Ex.D.1 and D.2. According to this PW. 9, she cannot remember as to whether she obtained the balance sheet from Innova Securities and Investments Ltd and she has not examined any official or officers of that company and it is her clear cut evidence that she came to know that the said company is closed. She further goes to deny a suggestion that she has deliberately not taken into account of a sum of Rs. 48,12,515/- which is reflected at Ex.D. 2. If this amount is taken 121 Spl.C.C. No.21/2009 to the credit of AGO, there will not be any amount which is disproportionate to his known source of income. When PW. 9 gave this quality of evidence in order to rebut the same, this AGO got examined DW . 4 by name K.R.L.Raju, who was the Director of Innova Securities and Investments Ltd., Bengaluru and through this witness, the evidence was collected that both DW. 5 and 12 were his clients, they were trading in shares and debentures. According to this DW. 4, as per Ex.D. 10, this accused was to pay a sum of Rs. 48,12,515-80ps. as on 30-10-2005 and this DW. 12 has repaid the said amount to their firm. Likewise, as per Ex.D. 10, this accused owed a sum of Rs. 58,82,465-43ps. So, this DW. 4 who is from Innova Securities 122 Spl.C.C. No.21/2009 Pvt. Ltd. admits that their company is not closed. In fact, in the cross-examination of DW. 4, the prosecution utterly failed to disprove the fact that a sum of Rs. 58,82,465- 43 was owed by AGO to them. It is also the evidence of DW. 4 that all those outstanding amount was paid by AGO. The said admission of DW. 4 is extracted as under:
"I have produced before the Lokayuktha Police what is available before our firm as on that day. As on 21-09-2005, accused owed a sum of Rs.
58,82,465-43ps. to our firm. That amount is relating to purchase of shares by this accused through our firm. That amount was paid by our firm to the stock exchange when the accused purchased the shares and accused is due to pay that amount to our firm. ... I say that the accused has repaid the amount due to our firm by sale of shares."123
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84. So this expert evidence clearly goes to show that M/s.Innova Securities Pvt. Ltd. was not closed at all and both DWs. 5 and 12 were dealing with purchase of shares. So, if this amount is taken into consideration, the version of AGO will have to be accepted that there cannot be any amount disproportionate to his known source of income.
85. In respect of LIC policy belonging to AGO, the PW. 9 has considered a sum of Rs. 89,982/- as the income and has taken into consideration. In this regard, according to me, neither the prosecution nor the AGO were able to convince before the Court that how that LIC Policy is stood in the name of AGO cannot become one of the items of the assets. In this regard, the only document which is 124 Spl.C.C. No.21/2009 available is Ex.P. 49. According to DW . 12, this document is not discernible for a normal prudent person to understand how can IO consider a sum of Rs. 89,982/- as the income of the AGO. But, according to this DW.12, it ought to have Rs. 29,994/-. In this regard, as I have said earlier, neither in the evidence of PW. 9 nor in the evidence of DW . 12 there is any material. But, if a sum of Rs. 89,982/- as considered by PW. 9 is taken for the purpose of calculation towards the costs incurred by the AGO, it should meet the ends of justice. Hence, this amount of Rs. 89,982/- is considered for all practical purpose.
86. Coming to the very important aspect of 125 Spl.C.C. No.21/2009 the value of gold jewelery considered by PW. 9 while filing her charge sheet, both PWs.1 and 9 during their investigation have failed to ascertain as to whether gold received by DW . 5 was a Shtreedhana or not. It is also the evidence of DW. 5 that all these gold ornaments were given to her by her parents at the time of her marriage. These aspects have been spoken both by DWs.5 and 12 in their respective ocular evidence.
87. During the course of arguments, the learned counsel for the accused placed his reliance in an unreported judgment reported in Crl.Appeal No.479/2009 between Nandkumar Mahadu Ghegawat Sv. State of Maharashtra to bring home the fact that 126 Spl.C.C. No.21/2009 "as regards the gold and silver ornaments, the valuation of which has been claimed by the IO at specific figures, which has been accepted by the Trial Court, but there is no material to show the basis on which the prosecution claimed that the entire gold and silver ornaments recovered from the appellant and his family during the check period. Therefore, there is a substance in the contentions raised on behalf of the appellant that the calculation of the value of the total assets of the appellant was flawed and that the prosecution was unable to bring on record the cogent evidence to prove the figures of valuation claimed by the IO." So, this ratio held by him to highlight before the Court that PWs. 1 and 9 thoroughly failed to convince before this 127 Spl.C.C. No.21/2009 Court that these gold and silver articles were not Shtreedhana of DW. 5, but they were acquired during the check period by the AGO. According to him, in this regard, in the presence of witnesses while drawing that spot panchanama, there is no scrap of materials which show that the value of the gold jewelery found in the flat belonging to DW . 5 was Rs.3,45,000/-. Under such circumstances, so long as there is no document to support the case of the prosecution, they cannot be blindly accepted. In this regard, the ratio laid down by the Hon'ble High Court in the above said case squarely applies to the case on hand.
88. Likewise, in this regard only, the defence 128 Spl.C.C. No.21/2009 counsel relied upon one more decision reported in LAWS (KAR) 2013(10) Page 403 in the matter between Tirakappa Kuravatteppa Byadagi Vs. State of Karnataka to highlight before the Court that there is no material placed by the prosecution to support its case. In this regard, the Hon'ble High Court of Karnataka has held, which is extracted as below:
"The gold jewelery belonging to his wife have been taken as jewelery that was gifted by the appellant to his wife which was a presumption with out any evidence thereof when it was her own property and which had been given to her by her parents. It is also stated that the value of the gold and other household utensils has been grossly exaggerated.
Therefore, the same cannot be sustained on an arbitrary valuation of the same. The learned counsel should also point out that the expenditure shown as Rs.129
Spl.C.C. No.21/2009 1,78,275/- as being the value of expenses towards travel, medical expenditure, clothing and other expenses is on the higher side. There was no material evidence on record to support the same. There is also duplication of certain amounts towards traveling allowance which is another error as seen from para-47 of the judgment."
89. So, under such circumstances, the ratio of the Hon'ble Court Comes into play because on a dispassionate scrutiny of this ocular evidence of PWs.1 and 9 what is missing is the fact that both these IOs does not know when each of these gold ornaments were acquired by DW. 5. If it has been acquired, then whether it is by way of sale/purchase/gift or by way of any lawful transfer. Time and again, the AGO through his counsel has submitted that in respect of 130 Spl.C.C. No.21/2009 these gold and silver ornaments, DW . 5 has declared in her respective ITRs. The very fact that they have been already disclosed to a competent authority, question of finding fault that they are the benami properties of AGO does not arise at all.
90. The learned defence counsel highlighted as to the definition of Sthreedhana. According to him, now it is a a settled law that law recognizes any property possessed by a female Hindu whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. So, in this regard, the learned defence counsel contended that those golden articles received by Smt.Geetha as Shtreedhana were converted to jewelery of her 131 Spl.C.C. No.21/2009 liking and that gold smith work was carried out by M/s.Kamakshi Jewellery Works, Kanchipura. According to DW. 12, he has submitted the documents in this regard, which are found at Ex.D. 1 schedule at page 105 and 106. According to him, as this Ex.D. 1 and D.2 explanation has not been cross- examined by PW. 9, the evidence given by DW. 5 and 12 in this regard holds good. According to me, when DW. 5 in her evidence comes out with an answer that these gold and silver articles were her sthreedhana, if PW. 9 is to disbelieve this DW. 5's version, then she must be in a position to place better documents in this regard. When the entire evidence of PWs.1 and 9 are gone through, at no point of time, it can be said that the explanation 132 Spl.C.C. No.21/2009 offered by DW. 12 is not acceptable or these gold and silver articles cannot be Sthreedhana property. So, under such circumstances, the valuation of Rs. 3,45,000/- shown by PW. 1 & 9 becomes irrational. According to me, panchanama cannot be a document through which, the price of articles can be considered.
91. Another interesting aspect is that even the appraiser has not been appointed to carry out the work, but there is only a guess work. The appraiser has to certify in respect of the quality of gold, what carat they belong and what was the approximate rate per gram of those gold articles. It is the grievance of DW. 12 in this regard is that, PW. 9 has not 133 Spl.C.C. No.21/2009 examined any of the appraiser or the valuer, they have lost an opportunity in cross- examining such a witness. So, under such circumstances, this Court cannot accept the value of gold jewelery at Rs. 3,45,000/-. On the other hand, DW. 5 having given evidence that the item shown at Ex.P. 5 are sthreedhana, but she has not given her valuation of those articles. As this Court has no better material to rely upon the valuation of this gold jewelery, it will not consider the valuation of them one considered by the prosecution.
92. Coming to the value of silver articles shown at Ex.P. 5 as Rs. 30,000/-, I should say, the similar yardstick which were applied 134 Spl.C.C. No.21/2009 to gold articles has to be applied here also. In this regard, it is the evidence of DW. 5 and 12 that even these silver articles were Smt.Geetha's sthreedhana properties. But, for this oral evidence and explanation on Ex.D. 1 and D.2, there are no better documents placed by the prosecution. Again at the cost of repetition, I would like to refer here that the initial burden of proving in respect of each item of the assets, expenditure and income shall be on the prosecution only. So, under no stretch of imagination the prosecution can think of standing on the alleged weakness of the AGO case, so even in this regard, the amount considered by the IO as Rs. 30,000/- towards value of the silver articles has not been taken into 135 Spl.C.C. No.21/2009 consideration.
93. The PW.9 through Ex.P. 5 has considered the household articles valued to be at Rs. 5,65,715/-. Whereas the AGO quotes it as Rs. 1,14,190/-. It is the evidence of DW. 12 that intentionally, PW. 1 has inflated the value of household articles. In the cross-examination of PW. 1, except one sentence that the estimated costs of household articles were drawn in the presence of Mahazar witnesses, there is no piece of any other material. According to me, in respect of arriving at a just conclusion, in respect of valuation of household articles, importantly electrical, electronic goods and furniture are concerned, year of their making, brand, company which manufactured them, date of purchase, invoice 136 Spl.C.C. No.21/2009 order, guarantee or warranty period and lastly depreciation will have to be taken into consideration. If for eg. electrical gadgets likes fridge or a Television is valued approximately, it will not show before the Court as to what was the basis for arriving at a such conclusion. There are some gadgets which are either electrical or electronic, which may not be used life long and their life is only for a short period. Some products will not carry any guarantee against breakages or fire hazards. In the instant case, in the evidence of PW. 1, there is no such material which can instill or convince in the mind of Court that this PW. 1 has undertaken all these works as per law.
94. According to PW. 9, she has not inspected 137 Spl.C.C. No.21/2009 movable items at Prashanth Nagar and the items found at the Beauty Parlour. It is also in the evidence of PW. 9 that she has not verified the statements of mahazar witnesses. So, it is the evidence of PWs.1 and 9 that, but for conducting mahazar, seizing of documents, they have not done any thing else as part of their investigation. According to me, this stand of PWs.1 and 9 are not sufficient. Again, the defence counsel highlighted on these aspects to show before the Court that the very approach adopted by the PWs.1 and 9 in considering the value of these household articles are unscientific and irrational. In this regard, he relied upon a decision reported in 1997(99) BOMLR 176 in the matter between Praksh Vishwasrao 138 Spl.C.C. No.21/2009 Kohok Vs. State of Maharashtra, wherein the Hon'ble High Court has held as under:
"I think, the learned trial Judge has clearly fallen into an error in placing such burden on the appellant because it is needless to say that there is no any sound reason for one to maintain record of purchase of such household articles. It is true that the Government servant is to satisfactorily account for the disproportionate assets and not to prove the claim with mathematical exactitude beyond all possibility of doubt. One may might be keeping accounts of expenditure for his satisfaction but why should he procure and preserve supporting bills and vouchers? These are not the Government cash to he audited. Besides why should one keep them from the beginning of his carrier till his superannuation anticipating to be required in a court of law? Even for certain expenditure supporting vouchers are not feasible for which audit accepts a flat rate."
95. And has contended before the Court that the approach adopted by the IO in arriving at the conclusion is not correct. According to me, the valuation of some of the household 139 Spl.C.C. No.21/2009 articles which are found in the panchanama drawn by the PW. 1 amounts being materially vague, because for the above said reasons. This is what the Hon'ble Apex Court has also in the above said case decided. The similar view was once again reiterated by the Hon'ble High Court of Madya Pradesh in AIR (SC) 1977 796 in the matter between Krishnananda Agnihotri Vs. Stae of MP, wherein the Hon'ble Apex Court held as under:
"It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. Here, in the present case, no evidence at all was led on the side of the prosecution to show that the monies lying in fixed deposit in Shanti Devi's name were provided by the appellant and howsoever strong may be the suspicion of the court in this connection, it cannot take the place 140 Spl.C.C. No.21/2009 of proof. It must, therefore, be held that the prosecution has failed to show that the sum of Rs. 11,180/- lying in fixed deposit in Shanti Devi's name belonged to the appellant."
96. It is to highlight before the Court that there is no evidence on behalf of the prosecution to show that the valuation of the IO is on some credible basis. Under such circumstances, I also subscribe to the view that valuation of the household articles which also included furniture, electrical and electronic goods on are higher rate of Rs. 5,65,715/- as quoted by the IO.
97. It is the evidence of DW. 12 that the prosecution placed document at Ex.P. 5, but Ex.D. 1 and D.2 placed by the AGO will show that the household articles by giving 141 Spl.C.C. No.21/2009 deduction to depreciation will only Rs. 1,14,190/-. Under such circumstances, the amount quoted by the IO is not accepted, whereas sum of Rs. 1,14,190/- stands hereby accepted in view of Ex.D. 1 and D.2.
98. Coming to Ex.P. 7, this is in respect of household articles found in the house of DW. 6, the IO has considered its value as Rs. 4,54,800/-, but as per the AGO is Rs. 2,25,000/-. In this regard, it is relevant to fall back on the evidence of DW. 6. This witness who claims to be the tenant deposes that on 03-06-2005, he took 2nd floor of the said house on lease from the accused by paying an amount of Rs. 9 lakhs. According to him, it is a well furnished house and Ex.D. 44 is placed by him. But, it is a categorical 142 Spl.C.C. No.21/2009 evidence that on the date of search conducted at the said house by Karnataka Lokayuktha, when he was not present, the said police have drawn Ex.P. 7, but items No.1,2,4,5,7,8,9, 12 to 16, 19, 20, 23 to 26, 28 to 31, 34 to 40, 42, 43, 46, 47, 49 and 50 of that mahazar belong to him. So, in this regard, he has also given his affidavit to Karnataka Lokayuktha at Ex.D. 45. Now, when Ex.D. 44 and 45 were placed before PWs.1 and 9, it is for them to come to the conclusion that which household articles belonged to DW. 6 and 12. Under such circumstances, all the articles seized under Ex.P. 7 does not belonged to AGO. This is what DW. 6 has clarified at Ex.D. 7 and D.45. According to me, so long as the IO whether PW. 1 or 9 does not place 143 Spl.C.C. No.21/2009 corroborative documents in the form of bill, vouchers, estimate or invoice in respect of household articles, it cannot be said that all of them belonged to the AGO. Under such circumstances, an amount of Rs. 2,25,000/- as disclosed by DW. 6 and 12 will have to be considered.
99. Likewise, scrutinizing the evidence of DW. 7 also does not help this Court in coming to the conclusion that whether the IO was right in valuing this household articles found in Prashanth Nagar house. According to me, the evidence of DW. 6 in respect of the articles claimed by him at Ex.D. 45 gone unchallenged. Under such circumstances, there can be no any second opinion in coming to the conclusion that the household articles 144 Spl.C.C. No.21/2009 found in the house belonging to the accused which was let out to DW. 6 is only Rs. 2,25,000/- and nothing else.
100. The prosecution has considered a sum of Rs. 3,45,960/- as the amount towards the purchase of sale of Fiat Uno car of the AGO. Whereas, this DW. 12 claims to be at Rs. 2,45,960/-. In this case, again it is the grievance of DW. 12 that the prosecution has placed nil materials to establish its claim. But, it is found in the evidence of DW. 12 that for purchase of the said car, he has spent a sum of Rs. 2,45,960/- by raising a loan. In his cross-examination, this evidence is not impeached or discredited. Under such circumstances, the IO was wrong in considering the amount of Rs. 3,45,960/- as 145 Spl.C.C. No.21/2009 the sale and purchase of Fiat Uno Car by the AGO.
101. Lastly, coming to the value of Flat No.506A, Brooklyn Apartment at Banasawadi Main Road, Bengaluru, the IO has considered the value of the said apartment at Rs. 9,75,000/-. This item is shown as item No.6 of assets in the charge sheet by the PW. 9. This amount is neither admitted nor disputed by DW. 12, because according to him, this property belongs to Smt.Sangeevamma his mother-in-law who does not fall within the ambit of family of AGO. According to DW. 12, he bought an apartment bearing No.506A in 5th floor of Brooklyn Apartment situated at Banasawadi Main Road in the Corporation Division No.49, Bengaluru in the year 2000, 146 Spl.C.C. No.21/2009 subsequently, this DW. 12 sells his flat to his mother-in-law Smt.Sangeevamma W/o Late M.Subbrayappa under a regular registered sale deed for a sale consideration of Rs. 7,50,000/-. This DW. 12 gives break up with a sum of Rs. 3,50,000/- was given to Smt.Sangeevamma by way of cheque dtd.28- 4-2004 drawn on Bengaluru District and Rural District Co-operative Central Bank Ltd., Doddaballapura, Bengaluru and remaining amount of Rs. 4 lakhs by way of DD dtd.29- 04-2004 drawn on the very same bank. These two instruments were received by DW. 12 and they were credited to his bank account at Corporation Bank, Rajajinagar Branch, Bengaluru. According to DW. 12, these were reflected in his passbook at Ex.P. 147 Spl.C.C. No.21/2009 47 and he had earned a rental of Rs. 3,45,000/- from this apartment before he sells it to Smt.Sangeevamma. It is also in the evidence of DW. 12 that the sale of this property was intimated to his appointing authority in his APR for that year which is at Ex.D. 114 under assets column at item (h). According to DW. 12, all these transactions were legal.
102. During the course of arguments, the learned counsel for the accused highlighted that it is the grave suspicion raised by the prosecution that this transaction is a benami transaction. So, according to the accused counsel, the prosecution has to prove this aspect. In this regard, he relied upon a decision reported in 2000 Crl.L.J. 1178 in 148 Spl.C.C. No.21/2009 the case of Subhash Kharate Vs. State of M.P. and one more decision reported in Crl.A.No.388/2011 in the case of Sri Siddappa M.Poojari Vs. State of Karnataka. In both the citations, the Hon'ble Apex Court has held "possession of property disproportionate to income-allegations that purchase of plot by accused, a forest Ranger in the name of his wife as benami-statement of witness that said plot was purchased by father of accused's wife-cannot be discarded only on ground that said witness turned hostile- Failure on part of prosecution to prove that said plot was purchased Benami out of funds of accused - It cannot be said that the prosecution has proved the same". In another decision the Hon'ble Apex Court 149 Spl.C.C. No.21/2009 held "that if a benami transaction is alleged, it was the burden of the prosecution to prove the same beyond reasonable doubt." So, if the prosecution takes up a contention that the said Brooklyn Apartment was a benami transaction which was sold in the name of Smt.Sanjeevamma only to avoid amassing of wealth or to hoodwink the law implementing authority is not proved by the prosecution at all. So, both PW. 1 and 9 will have to show that the 2nd sale deed that has taken place in the name of Smt.Sanjeevamma got executed by DW.12 for a total sale consideration of Rs. 9,75,000/- is illegal and secondly, that on the basis of the said sale deed, Smt.Sanjeevamma had not become the absolute owner, so she could not have executed a Will as per Ex.P. 150 Spl.C.C. No.21/2009
71. Now, when both these documents are not disproved or shown to the satisfaction of the Court that Smt.Sanjeevamma could not have executed a Will in favour of her grand- daughter, question of finding fault with the said transaction was a benami does not arise at all. Rightly, in this regard, the counsel for the accused taking help from the decision reported which was just discussed above in Krishnanand Agnihotri Vs. State of MP' s case highlighted that "Evidence Act, Ss.101- 104- Benami-Onus and proof-Nature of Onus of establishing a transaction as Benami is on the person who asserts it- This burden has to be discharged by adducing legal evidence of a definite character-Suspicion however strong 151 Spl.C.C. No.21/2009 cannot take the place of proof. This decision aptly applies to the case on hand and helps the accused. On a similar analogy, he also relied on a decision reported in AIR 1974 SCC 171, wherein the Hon'ble Apex Court held "It is well settled that the burden of proving that a particular sale is Benami - and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact." So, in this case, the PW. 9 has failed to prove that the sale deed 152 Spl.C.C. No.21/2009 executed by DW. 12 in favour of Smt.Sanjeevamma was on account of benami transaction and in turn Smt.Sanjeevamma has executed a Will. So, according to me, there is a complete failure on the part of the prosecution to prove these aspects.
103. Lastly, I should accept the contention of the accused that Smt.Sanjeevamma was never a family member of the accused and there is no charge in this regard calling upon the prosecution to prove the same. So, a sum of Rs. 9,75,000/- considered by the IO as income in respect of Brooklyn apartment sale consideration to the credit of AGO does not sustain for consideration at all. Under such circumstances, the entire exercise undertaken by PW. 9 to show that the AGO and his family 153 Spl.C.C. No.21/2009 members had assets to the tune of Rs. 86,40,255/- will not sustain for consideration, because, as discussed in the above paras, some of the items claimed to be the assets have not been considered by PW. 9 and some of the items were wrongly considered as the assets of AGO and his family members. So, the net assets are definitely far below the total amount shown as the value of the assets of the AGO and his family members.
104. Coming to the another important allegation made by PW. 9 through charge sheet is the fact that the AGO and his family members had total expenditure which was in a sum of Rs. 43,74,034/-. So when this 154 Spl.C.C. No.21/2009 expenditure and assets totaled together, it comes to Rs. 1,25,50,573/-. So, this quantum of expenditure incurred either by the DW.12 or his family members was on account of ill-gotten wealth. No doubt, in the charge sheet, there are totally 38 items of expenditure and most of them have been undisputed by this AGO. So, the remaining expenditure which are disputed are totally 24 items, they are only taken for my discussion. The expenditure which according to the prosecution was in respect of valuation of the flat at the Paradise Apartment, electricity and water consumption charges. Likewise, the amounts spent towards maintenance of two wheelers' and theirs fuel expenses, etc. 155 Spl.C.C. No.21/2009
105. The calculation of the prosecution normally would be to first consider the assets, then the expenditure and finally to take into account the income of the AGO and his family members. Coming to the case on hand, this AGO even though admits that items No.2 to 5, 9, 11 to 14, 16, 23, 26, 27, 35 to 37 are undisputed. But, he vehemently disputes items No.1, 6 to 8, 10, 15, 19 to 25, 28 to 30, 34 and 38 of the expenditure shown in the charge sheet. But, in particular, so far as items No.31 to 33 are concerned, they are the expenditures towards rent, water and electricity charges. DW.12 comes out with an explanation that both PWs.1 and 9 have involved in taking into consideration the double entries which are impermissible in the 156 Spl.C.C. No.21/2009 eye of law. Because, according to DW. 12, DW. 5 has declared that particular income in her IT returns, which is taxable income which is on account of earnings from Beauty Parlour and which she got it as a profit. So, the net profit is calculated after deducting all the expenditure of the parlour including the salaries of beauticians, rent, water charges, electricity charges, consumables used in the beauty parlour. So, according to DW. 12, as items No.31 to 33 have already been considered in the net profit of beauty parlour and these amounts were declared in IT returns on which she has already paid income tax. So, considering these amounts separately as expenditure for the purpose of calculation by PW. 9 can only amount to falsifying, 157 Spl.C.C. No.21/2009 double entry and nothing else. So, the earnest appeal made by the AGO is that items No.31 to 33 of the expenditure shall have to be omitted from the calculation, according to me, this sounds reasonable and indeed PW-9 really has not applied her mind in this regard. So undoubtedly these items of alleged expenditures has to be separated from the items of expenditure as shown in the charge sheet.
106. The attempt made by DW. 12 to convince before the Court that as his wife has already paid income tax on the net profit earned from the beauty parlour business, so again separately considering these three items as expenditure becomes a double entry, this has to be accepted. Now, it is for the PWs.1 and 9 158 Spl.C.C. No.21/2009 to disclose as to how these three items of expenditure cannot become double entry. But, in this regard, no efforts were made by the IOs and no any type of evidence led.
107. So far as, disputed items of expenditure are concerned, as per the calculation of PW. 9, the total amount will be Rs. 21,77,329-44. But, from the point of view of AGO that will be Rs. 3,51,260/-. During the course of arguments, the learned counsel for the AGO took strong objection to the fact that both PW1. and 9 have marked documents in respect of water and electricity charges paid by the AGO, cost of gas cylinder, cost of construction of residential unit, fencing and pump house, educational expenses of Uma, Anil and Sunil, membership fee paid to the 159 Spl.C.C. No.21/2009 Dominion Club, telephone charges, repayment of loan to the Capital ABN AMRO Bank, premium paid to LIC, car rentals paid to Valsala Travels, membership fees paid to Country Club and lastly, costs of drilling borewells at the farm belonging to the wife of AGO at Doddaballapura.
108. According to the defence counsel, PWs.1 and 9 have placed documents at Ex.P. 50 to 55 and so forth. Mere marking of documents is not enough. In this regard, he relies upon a decision reported in AIR 1974 SCC 171 in the case of Jayadaya Poddar and another Vs. Bibi Hazra and others, wherein the Hon'ble High Court of Karnataka has held as under:
"It is well settled that the 160 Spl.C.C. No.21/2009 burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances, unerringly and reasonably raising an inference of that fact. The essence ,of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be, easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or .surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the ,person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state ,of affairs is the real state of affairs. Though the 161 Spl.C.C. No.21/2009 question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally :applicable in all situations, can be laid down; yet in weighing the pro- babilities and for gathering the relevant indicia, the courts are usually guided by these circumstances :
(1) the source from which 'the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami color; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the cus- tody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence The purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in ,reality 162 Spl.C.C. No.21/2009 for the benefit of another.
And contended before the Court that as the burden of proving that particular transaction is either benami or the amount spent towards that aspect is on account of ill-gotten money is heavy upon the prosecution. Further, he drew the attention of this Court to the important fact that "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. He also drew the attention of this Court to the ratio decidendi in a reported decision of the Hon'ble Apex Court reported in LAWS(SC)2011 Vol.1 page 163 Spl.C.C. No.21/2009 102 in the matter between Alamelu Vs. State represented by Inspector of Police, wherein the Hon'ble Apex Court has held as under:
"The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouch-safe for the truth of the facts in issue".
109. According to me, so far as the legal position discussed and explained by the Hon'ble Apex Court and Hon'ble High Court of Karnataka are aptly applicable to the case on hand and comes to the aid of the accused. It is undoubtedly true that even though prosecution has placed good number of documents, but, they will have to be proved. 164
Spl.C.C. No.21/2009 So, the ratio in the above said decisions squarely applies to the case on hand.
110. It is the serious concern of the AGO that no doubt PW. 9 has collected the documents in the nature of electricity and water consumption charges, but as they have not examined any witnesses who have issued the same, so he lost an opportunity to cross- examine those witnesses. The AGO further contended that non-examination of witnesses for the above disputed items also signal the fact that the defence counsel did not get an opportunity to cross-examine those witnesses in order to ascertain the genuineness of the documents and reliability of the contents found in them. Likewise, he canvassed his say 165 Spl.C.C. No.21/2009 that the prosecution has not fulfilled the legal requirements as per Sec.61 and 67 of the Indian Evidence Act. According to me, as they are the settled and well established position of law, no one can find fault with it.
111. This Court will have to verify as to each item of the expenditure which are disputed by this AGO. This DW.12 strongly objected to the fact that so far as water and electricity charges paid by him to the rented house was Rs. 46,160/-. According to the AGO, this is incorrect. Even though PW. 9 has marked Ex.P. 50, but that document is silent in respect of details such as who was the owner of that property No.991, 5th Block, Rajajinagar, Bengaluru, because, that 166 Spl.C.C. No.21/2009 property had totally 5 electricity meters. It is the evidence of DW. 12 that no information is forthcoming as to what was the amount paid by each of the tenants and number of electric units consumed for a particular period by each of the electric meter and its number. So, in view of this lack of information in respect of these important influencing factors, the claim of PW. 9 that DW. 12 has spent a sum of Rs. 46,160/- cannot be correct. Likewise, even though, PW. 9 claims that in spite of another house No.121, KHB Colony, Basaveshwar Nagar, Bengaluru and property No.152, 4 th Stage, Bengaluru is concerned, the electricity bills can only amount to estimates, because this DW. 12 did not get an opportunity to cross-examine the author of Ex.P. 50. 167
Spl.C.C. No.21/2009 According to me, to some extent, the AGO was right in canvasing that as the prosecution has not examined any witnesses to prove this documents, in particular, to disprove the contents of Ex.P. 50 was lost by AGO. Now, when Ex.P. 50, when its face value is taken into consideration, there cannot be any presumption in respect of the contents of that document, because, whatever the amount paid by the consumer is only what is shown in the document. But, whether that bill was correct, incorrect or whether was there any excess billing to which there are no documents. So long as better document than Ex.P. 50 is placed or available, it cannot be said that PW. 9 was right in considering the Ex.P. 50 on its face value. So, this disputed 168 Spl.C.C. No.21/2009 amount of Rs. 46,160/- cannot be considered as expenditure on the part of the AGO.
112. Coming to the consumption charges of gas cylinders paid by the accused in a sum of Rs. 29,210-44, this is also disputed by the AGO. According him, but for this Ex.P. 51, there are no other documents. He also comes out with an explanation that as per Ex.P. 5, which is the mahazar drawn at the house of DW. 5, there is a reference to the fact that this AGO had a gas connection issued by Bharath Gas. He has not taken gas connection from Indane gas. So, the rate differs from each of the gas cylinder company. But, when Ex.P. 51 has gone through, it does not corroborate the contents of Ex.P. 5. It is also the evidence of 169 Spl.C.C. No.21/2009 DW. 12 that the prosecution has considered as 10 cylinders consumed by the AGO's family in a year. But, according to him, they consumed 4 cylinders per year as he was regularly on official tours for at lest 15 days in a month, wife of the accused used to go to parlour and cook in the parlour only and her three children were studying in the boarding schools. These aspects have not at all been considered by PW. 9. According to me, I find substantial force in this arguments, because in order to form an opinion that the AGO's family used to consume 10 LPG cylinders per year for which there must be oral and documentary evidence in this regard. But, it is the consistent say of DW. 12 that his three children were studying at the boarding 170 Spl.C.C. No.21/2009 schools. So, under such circumstances, this calculation cannot be on a right side. It also has to be accepted that so long as the author of Ex.P. 51 is not examined and cross- examined, the veracity of the said document on its face value cannot be accepted at all.
113. So far as payment of electricity charges paid for HSR Layout house No.552, 6th Sector, Bengaluru in a sum of Rs. 42,040/- vide Ex.P. 52 is also disputed on the ground that the author has not been examined by the prosecution. I should say, the above discussed and referred to the citations of the Hon'ble Apex Court and Hon'ble High Court of Karnataka, those cases are taken into consideration, Ex.P. 52 by itself cannot 171 Spl.C.C. No.21/2009 become the conclusive proof or we can not come to the conclusion that the contents of them are the gospel of truth. So, this amount cannot be considered as the expenditure of the AGO and his family.
114. So far as the cost of construction of residential unit, fence and pump house of DW. 5 situated at Doddaballapura is considered as Rs. 2,10,000/- by the AGO. Again, PW. 9 completely relies upon the evidence of PW. 7 and Ex.P. 36. I have already discussed in my preceding paras about the oral evidence of PW. 7 and his report at Ex.P. 36. This witness has stated that the estimated value of farm house which has a sheet roof and a pump house in a sum 172 Spl.C.C. No.21/2009 of Rs. 1,55,000/-. According to PW. 7, the estimated costs of fencing was Rs. 55,000/-. So, the value of the said property and the fencing is considered on approximate basis at Rs. 2,10,000/-. Again, I have to repeat here that Ex.P. 36 is inaccurate report as stated by PW. 7 himself. According to him, he has valued those properties and issued Ex.P. 36 on the basis of available documents which were furnished by PW. 9 at that time. So, in view of the expenditure of Rs. 2,10,000/- is not verified by PW. 7, so this amount is not proved by the prosecution as expenditure of AGO incurred towards the costs of fencing, construction, etc. According to me, on the basis of Ex.P. 36, PW. 9 has made no efforts to obtain or produce further corroborative 173 Spl.C.C. No.21/2009 evidence to that report. Again PW. 9 has thoroughly failed to convince this Court in this regard.
115. Coming to the educational expenses of Kum.Uma, PW. 9 claims to be in a sum of Rs. 72,260/-, whereas, DW. 12 claims to be in a sum of Rs. 63,260/-. Here the minor difference is that, as per Ex.P. 30 by way of scholarship, Government has already reimbursed a sum of Rs. 9,000/- to the college. So, this amount has to be deducted from a sum of Rs. 72,260/-. Even though, this document is available for scrutiny, but PW. 9 has not done it properly. This amount has to be deducted and the amount incurred towards Kum.Uma's Education will be Rs. 63,260/-.
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116. Coming to the educational expenses of Anil, it is the say of PW. 9 that the AGO has spent Rs. 3,84,509/-. It is the evidence of DW. 5 and 12 that Anil was a boarding student of Monfort Higher Secondary School, Yercaud, Salem District, Tamil Nadu and the said school used to collect the entire year's fees towards tuition, boarding, sports, etc. It is also the say of DW. 12 that the balance amount used to be reimbursed by the school at the end of the academic year if any and the Ex.P. 23 is the expenditure details in this regard. So long as the author of the Ex.P. 23 is not examined and that document will not be proved, it will not be possible for this Court to know the exact figure or the amount spent. 175
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117. Likewise, the evidence of DW. 3 who is the younger brother of AGO, Dr. Srinivas assumes all the importance. This witness claims that he has paid a sum of Rs. 3,75,000/- towards the educational expenses of Anil and in the cross-examination, he has denied the suggestion on the part of prosecution that he has not borne those expenses. So, for all practical purposes, the educational expenses of Anil came to be borne by DW. 3 and his evidence is not discredited by the prosecution.
118. Coming to the educational expenses of Sunil, according to PW. 9, it was Rs. 4,03,715/-, whereas, according to DW. 12, it 176 Spl.C.C. No.21/2009 was only Rs. 10,715/-. This pupil was also a student of Montfort Higher Secondary School, Yercaud and like Anil, the school has collected the entire fees on yearly basis and again Ex.P. 23 is disputed by DW. 12. It is the evidence of DW. 7 by name K.Nagaraj who is the another younger brother of the AGO that he has borne the total educational expenses of Sunil in a sum of Rs. 3,93,000/-. In his cross-examination, the prosecution could not bring home any infringing evidence from the mouth of this witness. When we deduct the amount of Rs. 3,93,000/- from Rs. 4,03,715/-, so, the remaining amount of Rs. 10,715/- will have to be considered as the amount incurred by the AGO towards the educational expenses of Sunil. 177
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119. It is the claim of PW1 and 9 that as per Ex.P. 54, this DW. 12 has paid a sum of Rs. 36,000/- towards the membership fees of Dominion Club. But, according to DW. 12, he was never a member of that club, but admits that he had arranged a sales conference and spent Rs. 36,000/- towards arranging banquet and had also arranged for boarding and lodging. So, it is the evidence of DW. 12 that membership fee has been written by hand, so it is essential to examine the Cashier who has issued Ex.P. 54. So, according to DW. 12, as the prosecution has failed to prove this document by not examining the author of this Rs. 36,000/- receipt, incurred by him towards the membership, it stands not proved. I should say in respect of placing any 178 Spl.C.C. No.21/2009 negotiable instrument or receipt, where they will show passing of the consideration from one hand to another, as long as the author of that document or a person connected with that is not examined, till then, the contents of that particular document or its genuinity cannot be blindly accepted. When these documents are mechanically marked, it gives an impression that the prosecution might have been under wrong impression that these documents need not be proved. But, this approach is wholly incorrect. Under such circumstances, a sum of Rs. 36,000/- cannot be considered as a membership fee paid by DW. 12 to the dominion club.
120. So far as the telephone expenses are 179 Spl.C.C. No.21/2009 concerned, PW. 9 has considered a sum of Rs. 25,620/- in respect of two mobile phone numbers and one land line shown in Ex.P.
55. Again PW. 9 has failed to examine the Officer who has issued Ex.P. 55 and it is the claim of the AGO that the prosecution ought to have examined the Chief Accounts Officer of the Billing Section who has issued Ex.P. 55. In the absence of the same, the figures shown in Ex.P. 55 can be a imaginary, so I conclude with this view and hold hold that this amount of Rs. 25,620/- claimed by PW. 9 as telephone charges cannot be accepted at all.
121. It is the claim of PW. 9 that as per Ex.P. 63, an amount of Rs. 3,41,382/- is considered as repayment of loan paid by the 180 Spl.C.C. No.21/2009 AGO to ABN Amro Bank. But, according to DW. 12, it is only Rs. 2,58,000/-. This DW. 12 further clarifies that the IO has wrongly calculated the loan repayment as per Ex.P.
63. According to DW. 12, the equated monthly installment is the sum total of principal and interest which is Rs. 8,600/- pm. Spread over 59 installments. So, during the check period i.e. 21-09-2005, the AGO had repaid a sum of Rs. 2,58,000/- in 30 installments and not Rs. 3,41,382/- which is wrongly considered by PW. 9. So, the IO has wrongly added interest amount of Rs. 83,382/- again to EMI amount. So, the repayment of loan to ABN AMRO bank was only Rs. 2,58,000/-. So, the explanation offered by DW. 12 has to be accepted. According to DW. 12, even though charge 181 Spl.C.C. No.21/2009 sheet witness by name Kannan Mehta was shown as one of the witness but he has not been examined by the prosecution. When all these aspects are taken note of, an amount of Rs. 2,58,000/- only which is repaid as loan by the AGO has to be considered as expenditure.
122. Coming to Ex.P. 49, wherein the IO has considered a sum of Rs. 1,26,691/- as the premium paid by the AGO towards LIC policy. But, this was found fault with by DW. 12, because, when that document is gone through, he has only incurred an amount of Rs. 30,000/- towards payment of premium in respect of that LIC policy. As Ex.P. 49 is not proved as per Sec.61 and 67 of Indian 182 Spl.C.C. No.21/2009 Evidence Act, only a sum of Rs. 30,000/- has to be considered. According to me, Ex.P. 49 itself cannot show that whatever the amount quoted therein was the expenses incurred by the AGO. As discussed earlier, initially first two premiums will be paid by the LIC Agent. So, in the absence of proving Ex.P. 49 by not examining the witness concerned, it will not be possible for this Court to consider a sum of Rs. 1,26,691/- as the expenses incurred by the AGO.
123. So far as Ex.P. 56 is concerned, the IO claims that a sum of Rs. 5,220/- is paid by the AGO towards car rentals to Valsala Travels. Again I should say Ex.P. 56 is not proved in accordance with law. Likewise, 183 Spl.C.C. No.21/2009 coming to Ex.P. 60, which is the payment made to Country Club, according to PW. 9, the AGO has spent a sum of Rs. 10,800/-. As this witness has not examined the corresponding witness to prove the same, the same cannot be accepted. It is the primary duty of the prosecution to show that the documents which they heavily rely are the genuine documents. In the instant case, most of the bills relied upon by the prosecution does not find corroboration at all. So, it is the claim of the AGO that any amount can be filled in any document to show before the Court that such amount was incurred by the AGO. So, as long as such documents are not proved in accordance with Sec.61 and 67 of the Indian Evidence Act, 184 Spl.C.C. No.21/2009 they make no difference in respect of calculation. According to me, I subscribe to this view, because, the amount quoted in Ex.P. 62 can be accepted as correct document only when the author of this document is examined. For the argument sake, if the Court were to accept the amount shown in Ex.P. 60 and 62 as the correct figures, wherein the AGO has incurred the expenditure, they will be completely one sided. So long as the authors of these documents are not examined or cross- examined, these documents cannot become conclusive proof. So, these amounts cannot be considered as expenditure on the part of AGO and his family members.
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124. Coming to Ex.P. 62, this is a document in respect of costs of drilling borewells at the farm house belonging to DW. 5. It is considered as Rs. 2,40,000/-. According to DW. 12, the PW. 9 has not considered the background in which Ex.P. 62 has taken place. According to DW. 12, his wife DW. 5 purchased this land at Doddaballapur in the year 2000 and as per Ex.P. 38, there is a reference to the fact that in Sy.No. 44/4, in the year 1997-98 itself much before she could purchase this land, borewell was in existence. So, this aspect and entry, figures in relevant RTCs. So, these documents have not been considered by PW. 9. According to DW. 12, he goes to the extent of alleging that Ex.P. 62 is against to the contents of Ex.P. 38, so this 186 Spl.C.C. No.21/2009 Ex.P. 62 is a got up document. So, according to this DW. 12, as per Ex.P. 38, which is of the year 2000, when borewell was in existence, question of incurring Rs. 2,40,000/- for digging does not arise at all. According to me, this Ex.P. 62 can convey some meaning if that author of that document appears before the Court and he gives evidence as to when this borewell was dug and how they have arrived at that cost of drilling, etc. In the absence of the same, Ex.P. 62 conveys no meaning at all. According to me, this amount of Rs. 2,40,000/- as incurred by DW. 5 towards costs of drilling borwell cannot be accepted at all. So, this amount cannot be considered as expenditure on the part of the AGO.
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125. One more item which was disputed by this AGO was that PW. 9 has considered a sum of Rs. 1,84,722/- as the income spent by the AGO towards payment of rent. In this regard, PW. 9 has examined PW. 11, but this witness by name Smt. Laxmamma instead of helping the prosecution has helped the defence counsel. In fact, this witness was treated as a hostile witness and in the cross- examination conducted by the Learned Public Prosecutor, she denies her statement at Ex.P. 72 and in the further cross-examination conducted by the defence counsel, she admits that she cannot remember the names of tenants who occupied different tenements and she cannot say which particular tenement/portion was let out to which of the 188 Spl.C.C. No.21/2009 person as a tenant. In fact, in the examination-in-chief, this PW. 11 claims that earlier she was not knowing the AGO, but when she appeared in this case before the Court, then only she came to know about the name of the accused. So, these disputed items which are discussed supra have not been proved by the prosecution at all. So, when these amounts are given deductions to the total expenditure claimed by the prosecution in a sum of Rs. 43,74,034/- it cannot be right and as some of the expenditure have been left out, it only shows that it is a handy work of PW. 9 only to see that these expenditure and assets are made to look on higher side. I should say that the prosecution has thoroughly failed to give valid 189 Spl.C.C. No.21/2009 and acceptable reasons in respect of the amount incurred by the AGO and his family members towards expenditure. The intention of PW. 9 in not considering the evidence of DWs. 3 and 7 who consistently spoke that they have looked after the educational expenses of Anil and Sunil again raises a big doubt as to why such step motherly attitude was adopted.
126. Coming to the other expenses like payment towards rents, water and electricity charges are concerned, the IO not having examined the concerned witnesses lastly in respect of borewell charges, he has considered the same against the contents of Ex.P. 38. So, rightly the AGO has a reason to 190 Spl.C.C. No.21/2009 doubt the contents of Ex.P. 62. So, looked from these angles, these were major areas where the prosecution has thoroughly failed to instill the confidence of this Court towards the expenditures incurred by the AGO as claimed by the PW. 9 in her charge sheet as real and correct. According to me, some of the expenses discussed above can be proved before the Court by examining the author and also the concerned persons as witness, as per Sec.61 and 67 of the Indian Evidence Act which mandates in this regard. But, these procedures have not been properly followed. Hence, the expenditure as claimed by the IO in her charge sheet are incorrect and wrong.
127. Coming to the income aspect of the AGO 191 Spl.C.C. No.21/2009 and his family member, PW. 9 in her charge sheet has stated that the total income of them was Rs. 86,40,255/-. So, on the basis of this amount, she has given her calculation stating that if the total amount of assets and expenditure are added, that will come to Rs. 1,25,50,573/- and out of this, total income of Rs. 86,40,255/- is deducted, a sum of Rs. 39,10,318/- is the disproportionate asset of the accused to his known source of income, which accounts for 45.25%. So, for this amount, the present charge sheet has been filed. Likewise, when we go through the charge sheet, this income covers totally 29 items. On going through each of these items, it clearly go to show that most part of the items of income have not been properly 192 Spl.C.C. No.21/2009 considered at all. For example, in respect of DW. 12 receiving a sum of Rs. 36,28,288/- as the salary from Karnataka Soaps and Detergent Ltd., the very document produced by PW. 9 has not been proved at all. In respect of item No.3, which is the rent in a sum of Rs. 1,04,205/- received by the AGO from letting out a flat in Brooklyn Apartment is also not proved at all. It is the evidence of DW. 12 that he sold this property in favour of Smt.Sanjeevamma, his mother-in-law, through a sale deed and even though, she is his mother-in-law, but she cannot become a family member. On the basis of the said sale deed, this Smt.Sanjeevamma had become the absolute owner, then made a bequest of this property in favour of her grand-daughter 193 Spl.C.C. No.21/2009 Smt.Uma. So, this aspect has also not been considered. In respect of the lease amount received by the AGO with regard to second floor of property No.552 of HSR Layout, Bengaluru, PW. 9 has shown the rental value as zero. Again this PW. 9 has committed a blunder, because as per DW. 6 and DW.12 vide Ex.D. 44, a sum of Rs. 9 lakhs came to be received by DW. 12 as a mortgage amount. This has not been properly considered by PW. 9.
128. Coming to item No.6 in respect of loan raised by the AGO from Bengaluru Credit Co- operative Society Ltd. in a sum of Rs. 12 lakhs, this has not been properly proved. So far as items No.11 to 17 of income list, items 194 Spl.C.C. No.21/2009 No.23 to 27 have not been substantiated. Surprisingly, coming to item No.28 of the income list found in the charge sheet, PW. 9 claims that a sum of Rs. 2,49,646/- was received by the AGO as the interest while broking in shares and so far as item No.29 of the said list is concerned, she has considered a sum of Rs. 1,50,000/- as the sale consideration which the AGO has received by selling his Fiat Uno Car. Again to this aspect, there is no document at all and the author of those documents have not at all been examined. So, this Court is trying to find out any evidence which is available to show that the total income of the AGO and his family was Rs. 86,40,255/-. As most of the items referred to above have not been proved by 195 Spl.C.C. No.21/2009 both PWs.1 and 9, there is a thorough failure on the part of the prosecution to show that this was the exact amount in respect of income of the AGO and his family members.
129. Coming to the crucial aspect of the explanation offered by DW. 12 in Ex.D. 1 and D.2 are concerned, it is the specific case of DW. 12 that the above 13 items' source which were referred by him in both the schedules have not at all been considered by PWs.1 and
9. To begin with, according to DW. 12, an amount of Rs. 10,58,000/- which is the capital gains of DW. 5 has not at all been considered. Even though, she has placed the documents at Ex.D. 1 and D.2, PW. 9 has conveniently ignored the same. Likewise, in 196 Spl.C.C. No.21/2009 respect of amount of Rs. 12 lakhs received as advance by DW. 5, they have not been considered. When an amount of Rs. 5,12,573/- was found as the opening balance in the bank account of DW. 5, for the reasons best known, they have not been considered by PW. 9. According to DW. 5, this can be found at Ex.D. 1 statement No.4, page No.22 of Sl.No.8. So far as DW. 5 receiving interest and dividend in a sum of Rs. 1,00812/-, same was not considered by PW. 9. In respect of DW. 5 receiving gifts at the time of inauguration of her Beauty Parlour at Basaveshvaranagar, Bengaluru in a sum of Rs. 36,881/- is also not considered. According to DW. 5, she has placed documents at Ex.D. 1 and D.2 at statements No.4 and 38 respectively which 197 Spl.C.C. No.21/2009 could be found at pages No.22 and 185.
130. Coming to the crucial aspect of PW. 9 considering the salary of DW. 12, when he was working at HMT, this has not been considered at all. According to DW. 12, when he was serving at HMT, Hyderabad, he has received salary of Rs. 1,25,000/- and in spite of producing documents in this regard, PW. 9 has not considered the same. Likewise, lease amount as received both by DWs.5 and 12 have not been considered. So far as interest and dividend received by the accused in a sum of Rs. 4,46,778/- are concerned, he has placed the documents in this regard. According to DW. 12, when PW. 9 has failed to place any documents to show that these incomes were from lawful sources, he has 198 Spl.C.C. No.21/2009 placed Ex.D. 1 and D.2. According to DW. 12, he has received capital gains of Rs. 7,06,030/- which were not considered by PW.
9. So, they have not been proved. So far as sale of Fiat Padmini car in a sum of Rs. 40,000/- is also not considered by PW. 9. Coming to the major income which the PW. 9 has failed to take correctly to her consideration while filing the charge sheet, is an amount of Rs. 19,02,000/- which DW. 12 has received under TA and DA while discharging his services. So far as income received by Uma.K., the daughter of DW. 12 in a sum of Rs. 2,02,500/- has not been properly considered. So, it is the say of DW. 12 that out of the above 13 items, prosecution has considered only a sum of Rs. 2,49,646/-, 199 Spl.C.C. No.21/2009 whereas the balance amount which ought to have been considered as the income of AGO and his family members were Rs.
71,80,928/-. So, this major difference has taken place only to see that intentionally the income of AGO and his family members are kept low in order to inflate rates of items of assets and expenditure only to see that PW. 9 files a false charge sheet against the accused. According to me, I find some force in this contention of the accused, because, when the above items are discussed in the light of the materials placed by the prosecution, virtually it is nil. Because, PW. 9 in her cross- examination also gives admission in this regard. Some of the admission given by the IO/ PW. 9 in her cross-examination is 200 Spl.C.C. No.21/2009 extracted as below:
"I admit that a sum of Rs.
19,01,500/- drawn by the accused towards his TA and DA is not considered by me. I admit that opening balance of Rs. 5,12,574/- of the wife of the accused declared in her income tax returns of the assessment year 2000-2001 is not considered by me. .... I admit that I have not considered a sum of Rs. 1,15,360/- drawn by the accused towards medical expenses. I have not collected the copies of the income ax returns of the accused and wife of the accused. .... I admit that I have not considered a sum of Rs. 36,73,447/- as mentioned in Ex.D. 2 which was the income of the wife of the accused as found in page No.186 Annexure-38 in Ex.D. 2. I have not collected document to show that accused paid total rent of Rs. 1,84,722/-.
131. So, this candid admission given by PW. 9 can only show before the Court that for the reasons best known, even accused by way of 201 Spl.C.C. No.21/2009 Ex.D. 1 and D.2 were able to furnish the details, they were mechanically ignored by PW. 9.
132. Coming to the evidence of PW. 1, because this witness he has submitted his source report as Ex.P. 1, was also instrumental in registering the FIR. Surprisingly, in his cross-
examination, he has given certain admissions, which goes to the root of the prosecution and show before the Court that what is the quality of investigation undertaken by him and PW. 9 in this case. Some of the admissions of the PW.1 are extracted as below:
"I have not made personal enquiry for ascertaining the valuation and ownership of the properties and expenditures as shown in the source report. ... I have not procured the APRs of the accused before preparing the source report. I have not made 202 Spl.C.C. No.21/2009 correspondence with income tax department."
133. So, this enquiry on the part of PW. 1, who has set the criminal law in motion clearly go to show that both he and PW. 9 have adopted pick & chose method during the course of their investigation in this case. Now, when the valuation of the immovable properties, amounts in respect of movables, transactions in respect of shares and debentures, advance amount received towards mortgage of immovable property, rents received, transfer allowance and dearness allowance of the AGO, if they are not considered, there can be no chance of charge sheet depicting the correct statistics in respect of alleged disproportionate assets.
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134. During the course of arguments, the learned Counsel for the accused also highlighted another aspect that in spite of Ex.D. 1 and D.2 placed, the IO has failed to place incriminating evidence found against the accused by way of leading both oral and documentary evidence. When it is the definite stand of PWs.1 and 9 that they have not investigated in respect of certain items of assets, expenditure and income, there can be no incriminating evidence and question of this Court recording incriminating evidence by way of Sec.313 of Cr.P.C. statement of the accused does not arise at all. So, any conviction on the basis of this type of evidence and Sec.313 of Cr.P.C. statement can only amount to be bad in law. In this regard, the 204 Spl.C.C. No.21/2009 learned Counsel for the accused placed his reliance on the reported judgment in 2007(12) SCC 34 in the matter between Ajay Singh Vs. State of Maharashtra , wherein the Hon'ble Apex Court has held that "A conviction based on the accused failure to explain what he was never asked to explain is bad in law". According to me, the principles enunciated by the Hon'ble Apex Court squarely applies to this case and comes to the aid of the accused, because in spite of accused placing Ex.D. 1 and D.2, both IOs have failed to lead or undertake investigation on those specific items. On similar analogy, the learned Counsel for the accused also relied on the decision reported in AIR (SC) 2013 PAGE 3817 in the matter between 205 Spl.C.C. No.21/2009 Sujit Biswas Vs. State of Assam, wherein the Hon'ble Apex Court has held as below:
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the 206 Spl.C.C. No.21/2009 court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
135. And lastly, one more decision reported in CDJ 2018 BHC 1361 in the mater between Narayan Ramachandra Mante & Others Vs. The state of Maharashtra, wherein it was held by the Hon'ble Apex Court as under: 207
Spl.C.C. No.21/2009 "18. A perusal of the statements of appellant No. 1 recorded under Section 313 of the Cr.P.C. shows that, questions pertaining to his income as calculated by the prosecution were not put to him.
Specific questions regarding the extent of disproportionate assets as claimed by the prosecution were also not put to him. The extent of expenditure and the figures pertaining to the same were also not put to him and no questions were put to him regarding alleged benami transactions undertaken by him in the purchase of house property and agricultural lands allegedly in the name of appellants No. 3 to 5. These were incriminating circumstances that ought to have been put specifically to appellant No. 1 for his response under Section 313 of the Cr.P.C. In the case of State of Punjab v.
Hari Singh and others (supra), the Hon'ble Supreme Court has considered the law pertaining to significance of putting questions to the accused u/s 313 of the Cr.P.C . and it has been categorically held that the 208 Spl.C.C. No.21/2009 aforesaid requirement of putting all incriminating circumstances to the accused under the said provision is not a mere formality and that it has a crucial bearing on the process of affording sufficient opportunity to the accused to explain such incriminating circumstances. It has been 20 APEAL108.2001 categorically held that, if crucial incriminating circumstances are not put to the accused, the entire prosecution case stands vitiated and the accused cannot be convicted because such a default would be fatal to the order of conviction rendered by the trial Court. In the present case, questions were not put to the appellant no.1 on crucial incriminating circumstances, causing prejudice to him, thereby violating the said requirement of law under Section 313 of the Cr.P.C. The trial Court failed to appreciate this aspect while passing the impugned judgment and order."
136. To bring home the fact that if any incriminating that were to stand against the 209 Spl.C.C. No.21/2009 accused and if they are not properly elicited or adduced by way of prosecution evidence, then the entire prosecution proceedings will have no legs to stand. In the instant case, the entire calculation given by PW. 9 in her charge sheet so far as the figures quoted at assets, expenditure and income cannot be correct, because wantonly she has omitted many of the items in her investigation. So, in a nut shell, the same can be summarized as follows:
"The value of assets for which documents are not proved by the prosecution comes to Rs.
20,44,253/-. Out of which, accused accepted a value of Rs. 6,35,144/- leaving the assets without proof as Rs.
14,09,109/-. Similarly, the value of expenditure items for which documents are not proved is Rs. 21,77,329/- out of which, 210 Spl.C.C. No.21/2009 accused admitted a value of Rs. 3,51,260/- leaving expenditure items without proof as Rs. 18,26,069/-. So, the total value of assets and expenditure for which the prosecution did not prove the documents as per law comes to Rs. 32,35,238/-. So, the value of assets and expenditure arising out of prosecution failure to prove the documents coupled with 10% margin as provided in Krishnanand Agnihotri Vs. State of M.P. case reported in AIR (SC) 1977 page 796, that works out to be Rs. 40,99,263/-
(Rs.32,35,238/- which is the expenditure + Rs.8,64,025/- which is the asset), they are alone sufficient to account for the disproportionate assets of Rs. 39,10,318/-. So, according to the AGO, if this calculation is kept in mind, the alleged disproportionate assets claimed by the prosecution will not sustain for consideration at all.
So, looked from any angle, the IO could not have filed the 211 Spl.C.C. No.21/2009 charge sheet for the said amount."
137. Another grey area which was highlighted by the accused was that the assets exclusively held by the wife of the accused and expenditure, have not been considered by PW.
9. In this regard, he again relied upon the decision which we had discussed earlier in 2006(1) Crimes (SC) 68 in the matter between D.S.P., Chennai Vs. K.Inbasagaran. So, blindly the PW. 9 has filed a false charge sheet. In the instant case, some of the assets and expenditure of DW. 5 which were not considered are listed below:
Assets
1. Paradise apartment 4,61,000-00
2. Amruthahalli Sites 3,27,000-00
3. Land at Doddaballapur 8,28,000-00
4. Gold 3,45,000-00
5. Silver 30,000-00
6. Parlour items as per Ex.P. 7 86,800-00
7. Closing balance at Vijaya Bank 13,182-30
8. Household articles as per Ex.P. 5 5,65,715-00 212 Spl.C.C. No.21/2009
9.Closing balance at ING Vysya Bank 5,040-35 Total 26,61,737-65 Expenditure
1. Registration charges of Paradise 14,781-00 Apartment
2. Taxes paid for Paradise Aptmt. 19,074-00
3. Newspapers & Magazines 5,280-00
4. Water charges 7,234-00
5. Registration charges of 47,260-00 Amruthahalli Site
6. Registration charges of farm 1,28,690-00 lands
7. Cost of sheds & fencing at farm 2,10,000-00 land
8. Repayment of loan of Indian Bank 1,83,178-00
9. Rent of Beauty Parlour 2,01,000-00
10.Water charges of Beauty Parlour 4,350-00
11. Electricity charges of Beauty 54,923-00 Parlour
12.Cost of Borewells in farm lands 2,40,000-00
13. Fuel expenditure of Kinetic Honda 19,000-00 Total 11,34,770-00
138. So, PW. 9 has not considered the total value of assets and expenditure exclusively attributable to DW. 5, which comes to Rs.
38,08,507/-. Because, the income of DW. 5 is much higher than that of the AGO which comes to Rs. 49 lakhs as per Ex.D. 3 and D.4. So, it is clear that DW. 5 had sufficient 213 Spl.C.C. No.21/2009 income to explain her assets and expenditure from her own lawful source. It could also be seen that at no point of time, it is the allegation of PW. 9 that this defendant 5 had assets disproportionate to her known source of income, because, there is no charge leveled against DW. 5. Of course, may be that she was not a public servant. But, even during the evidence, when the oral testimony of all the witnesses examined on behalf of the prosecution are looked into, there is no such serious allegations made against DW. 5.
139. So, if the assets, expenditure and income of DW. 5 is excluded from that of the AGO, the total value of assets exclusively held by the AGO as per the charge sheet is only Rs. 39,95,726/-. The total value of expenditure 214 Spl.C.C. No.21/2009 of him comes to Rs. 24,45,821/-. So both are totaled, it comes to Rs. 64,41,547/-. Out of which, the total value of assets and expenditure accepted by the AGO is only Rs. 47,87,875/-. So, even if one considers the value given in the charge sheet of the AGO's income as Rs. 16,17,766/-, there is no offences committed by the AGO under the the Sec.13(1)(e) and 13 (2) of the Prevention of Corruption Act, 1988. So, according to DW. 12, the prosecution has mischievously included the assets and expenditures of DW. 5 and Smt.Sanjeevamma only to file a false case against him. According to me, I find substantial truth in this limb of arguments. When ever an allegation of disproportionate of assets is made against any of the public 215 Spl.C.C. No.21/2009 servant, the burden is heavy upon the prosecution to prove beyond all shadow of doubt on each items of assets, expenditure and income and in that process, no leniency can be shown to anybody. In the instant case for having committed an act of omission in not considering some of the items by PW. 9, no proper and acceptable explanations are forthcoming. Most of the documents have remained unproved. So, according to me, the calculation one furnished by PW. 9 in the charge sheet is wholly unacceptable and the IO failed to show that this AGO had disproportionate assets to his known source of income in a sum of Rs. 39,10,318/- which accounted for 45.25%.
140. Lastly, coming to the crucial aspect of the 216 Spl.C.C. No.21/2009 prosecution obtaining sanction to prosecute the accused for the charged offences. In this regard, Ex.P. 39 becomes prime document and the ocular evidence of PW. 5. All along, the learned Counsel for the accused contended that when the oral evidence of PW. 5 and contents of Ex.P. 39 are looked into, there is no any semblance and both are at logger-heads. In this regard, I once again want to scrutinize the evidence of PW. 5. This witness by name Mr.Umesh was the Addl. Chief Secretary to the Government of Karnataka and he claims that on 11-08-2008 he receives a requisition from the ADGP, Karnataka Lokayuktha seeking sanction to prosecute the accused under Sec.13(1)(e) and 13(2) of the Prevention of Corruption Act, 217 Spl.C.C. No.21/2009 1988. In fact, in his examination-in-chief, he makes it clear that earlier report was recalled and he sent another report because the first report had some typing errors, because a letter was sent from ADGP to him on 04-12- 2008 to rectify those errors. Subsequently, he has sent Ex.P. 39. In fact, in the cross- examination of this witness, the learned Counsel for the accused tried to bring home the fact that as the ADGP, Lokayuktha had not sent the explanation offered by the accused to Lokayuktha to their notice caused so this PW. 5 had no occasion to look into the explanation offered by the AGO and at no stretch of imagination Ex.P. 39 can become a lawful document. Because, in the cross- examination, there is an admission that he 218 Spl.C.C. No.21/2009 was not provided with the explanation offered by the AGO. When this Court posed a question as to whether he rejected the first sanction order, this witness clarifies that it was neither rejected or refused, but he withdrew the first order and issued the second order with corrections.
141. During the course of arguments, the learned counsel for the defence highlighted that as there is an admission found in PW. 5 evidence that he has not gone through the entire records and APRs of the accused, so at the behest of Karnataka Lokayuktha Ex.P. 39 seems to have been issued. I fail to concur with this view, because, it is the settled and well established rule that the available documents in the nature of source report, 219 Spl.C.C. No.21/2009 FIR, Mahazars and statements of witnesses if any, inventory, appraiser statements, banks and financial documents if submitted to the sanctioning authority seeking approval, so those documents naturally could not have undergone the test of cross-examination. So, it is premature to contemplate as to the sanctioning authority in respect of their genuiness and also to look into the other pros and cons of such documents. In the instant case, merely because, PW. 5 was not supplied with the explanation of AGO offered to PW. 1 and 9 cannot be a ground to find fault with Ex.P. 39. So, this objection of the AGO stands overruled.
142. So far as the first report which was recalled as ADGP through his letter dtd.04- 220 Spl.C.C. No.21/2009 12-2008 called upon to submit another report with corrections is concerned, that has not shown that this letter has caused prejudice to this accused. So, what is changed in Ex.P. 39 is only the mistakes which were corrected and new print out has been taken out. On carefully going through Ex.P. 39, it cannot be said that PW. 5 has not applied his mind. Of course, in Ex.P. 39 at page No.2 to 6 of that document, there is a break up of amounts furnished in respect of assets, expenditure and income of the AGO and his family members. So, on the basis of this break ups found in this document, a question was posed in respect of the same in his cross examination to which PW. 5 has answered that he has not gone through carefully. So, 221 Spl.C.C. No.21/2009 this by itself cannot enure to the benefit of the accused to contend that an adverse inference shall have to be drawn against PW. 5. According to me, Ex.P. 39 is complete and comprehensive in all aspects. More over, the initial opinion of the complainant or the Karnataka Lokayuktha Officer who undertakes investigation may not become final or conclusive. It may also get changed depending upon the changed circumstances on obtaining many other documents pertaining to the accused and his family members during the course of their investigation.
143. No doubt, when Ex.P. 39 is gone through, this PW. 5 has gone through Ex.P. 1 which is 222 Spl.C.C. No.21/2009 a source report and also considered other documents which were annexed to that covering letter. Merely because PW. 5 has not called for additional documents from ADGP, cannot be a ground to doubt the whole of Ex.P. 39. So, at this juncture, this Court cannot doubt in respect of sanctioned order obtained to prosecute the accused for the charged offences. So, for all practical purposes, I consider that Ex.P. 39 is lawful, valid and in accordance with law.
144. A word or two has to be spoken about the role of mahazar witnesses. PW.2 by name Moodalagiri, who was one of the pancha witness to Ex.P. 5. But, he has been partly treated as a hostile witness. So, his 223 Spl.C.C. No.21/2009 assistance to the Karnataka Lokayuktha is of very insignificant help. Coming to PW. 3, she is also a co-witness to Ex.P. 6 and her assistance was taken for search and seizure at the premises of the accused and his wife. Likewise, coming to the evidence of PW. 4, he is also a mahazar witness to Ex.P. 7 who also been partly treated as a hostile witness. So, the role of these mahazar witnesses in the present case, so far as Ex.P. 5 to 7, they become minimal considering the fact that even their evidence was not fully supporting the allegations made by PWs.1 and 9. So far as seizure of gold and silver articles were concerned, in spite of DW. 5 claiming that they all her sthreedhana properties much weightage was not given to her explanation by 224 Spl.C.C. No.21/2009 the IO's. Likewise, in respect of hand loans obtained by the AGO from his father Ramachandrappa, it was not accepted by PW. 9 and she claims that she did a preliminary enquiry and she came to the conclusion that it is all fake claims. But, in this regard, PW. 9 failed to place any documents or lead any evidence. Nothing wrong in holding a preliminary enquiry to ascertain veracity of the claim/s. But, what is questionable is, the method or procedure adopted in arriving at such a conclusion, which is important. Any enquiry or procedure which is either judicial or quasi-judicial, shall confer to the principles of natural justice. A fair opportunity must be given to both parties either to contend or to canvass in respect of their respective 225 Spl.C.C. No.21/2009 contentions. If according to PW. 9, the AGO has falsely claimed in respect of raising hand loans from his friends and his father, there was no dearth of opportunity that was available to PW. 9 to verify in this regard. Likewise, both PWs.1 and 9 must come out with acceptable reasons that as to why they have not considered income, expenditure and assets of DW. 5. So far as educational expenses of Uma, Anil and Sunil are concerned, in spite of there being evidence of DWs.3 and 7, they have not been considered at all. Once these schedules and explanation offered by the accused is not considered by the IO's question of contending that the accused conduct tantamounts to misconduct can only become myth. Under such 226 Spl.C.C. No.21/2009 circumstances, the entire investigation under taken by both IOs, PW. 1 and 9, looked unilateral, bias and one sided, so this Court on going through the entire material did not get any impression that the investigation undertaken by both of them confer to the standard which is expected to be followed as per Cr.P.C. Under such circumstances, I find no rhyme or reason to accept the charge sheet. Likewise, as there is a thorough failure to prove the allegations made against the accused, I answer this point No.1 in the negative.
POINT NO.2;-
145. Having gone through the entire materials, this court found that there is no impression of truth in respect both oral and 227 Spl.C.C. No.21/2009 documentary evidence placed by the prosecution to prove the charge sheet allegations leveled against the accused. The major draw back on the part of the prosecution seems to be in not considering the share transactions done by both DW. 5 and 12, which accounts for more than the disproportionate assets alleged to have been amassed by the AGO as alleged by the prosecution. Because, it is the admission of DW. 4,5 and 12 that this AGO himself had share transactions which was to the tune of Rs. 58,82,465/-. So, if this one amount is considered either as an asset or income, the entire allegations made again the accused by the prosecution does not stand the test of times. So there can be no question of the 228 Spl.C.C. No.21/2009 accused committing any criminal misconduct. Hence, having found demerit, I proceed to pass the following :
OR D ER The accused found not guilty of the offences alleged against him.
Acting under Sec.235 (1) of Cr.P.C., the accused is hereby acquitted of the offences punishable under Secs. 13(1)
(e) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
The bail and surety bonds of the accused and his surety shall stand hereby discharged.
(Dictated to the judgment-writer, transcript thereof and then corrected and pronounced by me in the open Court on this the 25 th DAY OF JANUARY 2022).
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
229
Spl.C.C. No.21/2009 A N N E XU RE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 B.S.Rama Mohan PW.2 Moodalagiri. PW.3 Smt.Ushamani. PW.4 R.Umashankar. PW.5 V.Umesh. PW.6 Smt.B.C.Pankaja. PW.7 C.N.Anand. PW.8 Jayadeva Prakash PW.9 Smt.Radhamani. PW.10 S.M.Srinivas. PW.11 Lakshmamma. PW.12 C.Vidhyananda. PW.13 Devarajappa. LIST OF DOCUMENTS MARKED FOR PROSECUTION: Ex.P.1: Source Report. Ex.P.2: F.I.R. Ex.P.3: Authorization letter from SP. Ex.P.4: Search Warrant Ex.P.5 to 7: Mahazars.
Ex.P.5(a), P.6(a): Signatures of PW. 2. Ex.P.5(b), P.6(b): Signatures of PW. 3. Ex.P.7(a) : Signature of PW. 4.
Ex.P.7(b) to (e): Signatures of PW. 10. Ex.P. 8 to 16: 9 Files recovered from the house of accused.
230
Spl.C.C. No.21/2009 Ex.P.17: Details of payment in respect of daughter of Anjinappa.
Ex.P.18: S.B. account belonging to AGO. Ex.P.19: Details of the expenditure of the mobile number.
Ex.P.20: Details in respect of SB Account of Geetha, wife of AGO.
Ex.P.21: Details of vehicles belonging to AGO.
Ex.P.22: Carmel High School Education fee expenditures details of children of AGO.
Ex.P.23: Mount Ford High School Education fee expenditures details of children of AGO.
Ex.P.24: Carmel High School, Basaveshwaranagar school Education fee expenditures details of son of AGO.
Ex.P.25: National Academy learning Education fee expenditures details of son of AGO.
Ex.P.26: Details of SB account in ING Vysya Bank, HSR Layout, Bengaluru of AGO.
Ex.P.27: Copy of sale deed.
Ex.P.28: Copy of the sale deed in the name of son of AGO.
Ex.P.29: Details of water usage of the Paradise Apartment.
Ex.P.30: Education fee expenditures details of K.Uma issued byRNS institute of Technology.
Ex.P.31: Details of the membership 231 Spl.C.C. No.21/2009 particulars issued by Karnataka state Badminton Association.
Ex.P.32: Paper bill issued by Raghavendra News Agency.
Ex.P.33: Land particulars in the name of wife of AGO issued by Tahsildhar, Doddaballapur.
Ex.P.34: SB account balance of the AGO issued by Apex Bank.
Ex.P.35: SB account balance of the AGO issued by ING Vysya Bank.
Ex.P.36: Valuation report of the house No.52, Paradise apartment & Pump House fencing.
Ex.P.36(a): Signature of PW. 7. Ex.P.37: Details of purchasing Brokeline Apartment in the name of son of AGO issued by Sr. Registrar, Shivajinagar, Bengaluru.
Ex.P.38: Crop details issued by Tahsildar, Doddaballapur.
Ex.P.39: Sanction Order.
Ex.P.39(a): Signature of PW. 5. Ex.P.40: Copy of the order dtd.15-10- 2008.
Ex.P.41: Copy of statement containing tax payment of property No.11/1, Amar Jyothinagar, Bengaluru.
Ex.P.41(a) Signature of PW. 6.
Ex.P.42: Letter along with details of food expenditure.
Ex.P.42(a): Signature of PW. 8. Ex.P.43 : CC of sale deed dtd.14-8-1998 in the name of Smt.Geetha.
232
Spl.C.C. No.21/2009 Ex.P.44 : CC of sale deed dtd.14-8-1998 in favour of the accused.
Ex.P.45 : Allotment details of the site at Malagiri, Rangareddy Dist.
Hyderabad.
Ex.P.46 : CC of sale deed dtd.25-02-2008 in favour of Smt.Geetha.
Ex.P.47 : Bank account extract of AGO in Corporation Bank.
Ex.P.48 : Sale details of Opell by accused. Ex.P.49 : Details of LIC Premiums paid by accused.
Ex.P.50 : Details of payment of electricity charges.
Ex.P.51 : Details of Domestic gas payment.
Ex.P.52 : Details of electricity charges. Ex.P.53 : CC of tax paid details of house at HSR Layout.
Ex.P.54 : Xerox copy of the cash receipt of Dominion Club regarding membership.
Ex.P.55 : Details of payment of mobile bills of the accused.
Ex.P.56 : Vehicle expenditure of the accused.
Ex.P.57 : Details of Medi claim. Ex.P.58 : Details of the payment in ICICI Lombard.
Ex.P.59 : Insurance details of Anjanappa. Ex.P.60 : Letter from Country club. Ex.P.61 : Details of payment of electricity of Beauty Parlour.
Ex.P.62 : Details of expenditure for bore- 233
Spl.C.C. No.21/2009 well at Hallahalli.
Ex.P.63 : Details of repayment of loan amount. Ex.P.64 : Salary details of the AGO Ex.P.65 : Leave encashment details of accused. Ex.P.66 : Details of loan of Rs. 12,00,000/- Ex.P.67 : Loan details from Chartered Bank.
Ex.P.68 : Reply.
Ex.P.69 : Reply in respect of Loan of Rs. 4 lakhs
Ex.P.70 : Notice.
Ex.P.71 : Will of Smt.Sanjeevamma.
Ex.P.72 : Portion of the statement of
Smt.Lakshmamma.
Ex.P.73 Portion of statement of accused.
Ex.P.74: Agricultural estimation letter.
Ex.P.74(a) Signature of PW. 12.
Ex.P.75: Estimation calculation sheet.
Ex.P.75(a) Signature of PW. 12.
Ex.P.76 Horticultural Income report.
Ex.P.76(a) Signature of PW. 13.
Ex.P.77 Statement along with
Horticultural report.
Ex.P.77(a) Signature of PW. 13.
Ex.P.78 House Loan details from Ind
Bank Housing Ltd.
Ex.P.79 Service details of accused from
KSDL.
Ex.P.80 Details of NSC purchased by
AGO.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
NIL.234
Spl.C.C. No.21/2009 LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 Govinda Bhat.
DW.2 K.Venkataswamy.
DW.3 Dr.Srinivas.
DW.4 K.R.L.Raju.
DW.5 S.N.Geetha.
DW.6 R.Veerabadraiah.
DW.7 K.Nagaraj.
DW.8 Rajanna.
DW.9 M.Narayanappa.
DW.10 Chandra Shekar.
DW.11 N.D.Bhat.
DW.12 K.Anjinappa.
LIST OF DOCUMENTS MARKED FOR
ACCUSED:
Ex.D1 Copy of schedule (Volume-I book
consisting of 127 sheets.)
Ex.D.1(a) Relevant portion.
Ex.D.2 Copy of schedule (Volume-II book
consisting of 307 sheets.)
Ex.D.3 & 4 Certificates.
Ex.D.5 Income Tax returns.
Ex.D.6 Bank Pass book of SBI.
Ex.D.7& 8 Requisitions from Lokayuktha.
Ex.D.9 Letter
Ex.D.10 Statement of account.
Ex.D.11 to 14 Certificates.
Ex.D.15 & 16 License.
235
Spl.C.C. No.21/2009
Ex.D.17 to 19 Receipts of Municipal Corporation Ex.D.20 Letter.
Ex.D.21 Apex Bank statement of account. Ex.D.22 to 29 IT Returns.
Ex.D.30 Certificate of Village Accountant. Ex.D.31 to 38 Share certificates. Ex.D.39 to 41 Affidavits.
Ex.D.42 Certificate of Bank.
Ex.D.43 Loan Installment paid receipt.
Ex.D.44 Lease agreement.
Ex.D.44(a) Signature of DW.12.
Ex.D.45 Affidavit
Ex.D.46 & 47 Income Tax Returns.
Ex.D.48 Salary certificate.
Ex.D.49 Notarized copy of Election I.D.
Ex.D.50 Notarized copy of Pan Card.
Ex.D.51 Notarized copy of Pass book.
Ex.D.52 Notarized copy of certificate of
registration.
Ex.D.53 Notarized copy of Bachelor
certificate issued by MU
Ex.D.54 Notarized copy of Diploma
Certificate.
Ex.D.55 Notarized copy of Master
of Dermatology Certificate.
Ex.D.56 Notarized copy of certificate issued
by NBC.
Ex.D.57 Notarized copy of SSLC marks card.
Ex.D.58 Notarized copy of certificate issued
by Dr.Thakkam Panose.
Ex.D.59 Notarized copy of certificate issued
by BMC.
Ex.D.60 Notarized copy of invitation card.
Ex.D.61 Notarized copy of letter issued by
236
Spl.C.C. No.21/2009
Skin Institute.
Ex.D.62 Notarized copy of proforma of enrollment as trainee.
Ex.D.63 Notarized copy of appointment letter.
Ex.D.64 Notarized copy of endorsement issued by MVS college.
Ex.D.65 Notarized copy of service certificate. Ex.D.66 Notarized copy of service particulars certificate issued by Dr.B.R.Ambedkar Medical College. Ex.D.67 CC of sale deed dtd.10-07-2006. Ex.D.68 DW7 selection letter. Ex.D.69 Order of acceptance of resignation. Ex.D.70 DW 7 Posting order. Ex.D.71 Statement of pay revision arrears. Ex.D.72 Gazattee Notification. Ex.D.73 Income tax returns of the year 1998-99.
Ex.D.74 Assessment order dtd.30-10-2000. Ex.D.75 Income tax returns for the year 1999-2000 Ex.D.76 Income tax returns for the year 2000-2001 Ex.D.77 Income tax returns for the year 2001-2002 Ex.D.78 Income tax returns for the year 2002-2003 Ex.D.79 Income tax returns for the year 2003-2004 Ex.D.80 Income tax returns for the year 2004-2005 Ex.D.81 Income tax returns for the year 2005-2006 237 Spl.C.C. No.21/2009 Ex.D.82 Salary records.
Ex.D.83 Transfer requisition application. Ex.D.84 Certificate given by DW. 9. Ex.D.85 Abstracts of crops and income. Ex.D.86 Report relating to ragi crop. Ex.D.87 Report relating to coconut. Ex.D.88 Report relating to Mulberry. Ex.D.89 Yearwise crops grown in the land. Ex.D.90 Degree certificate of DW. 9. Ex.D.91 Copy of order of the voluntary retirement.
Ex.D.92 Copy of election ID card. Ex.D.93 to 96 Amount paid receipts. Ex.D.97 & 98 Copy of share transaction by DW.12
Ex.D.99 Witness summons.
Ex.D.100 Letter issued by Syndicate Bank.
Ex.D.101 Office copy of valuation report.
Ex.D.102 Corporation bank statement.
Ex.D.103 Income tax returns 1999-2000
Ex.D.104 Income tax returns 2002-2003
Ex.D.105 Income tax returns 2003-2004
Ex.D.106 Income tax returns 2004-2005
Ex.D.107 Income tax returns 2005-2006
Ex.D.108 Income tax returns 2006-2007
Ex.D.109 Assessment year 2006-07
Ex.D.110 Notice issued by IT department.
Ex.D.111 Reply of accused to IT Notice.
Ex.D.112 Copy of letter with statement.
Ex.D.113 Letter issued by ADGP, Lokayuktha
Ex.D.114 Assets & Liability statement &
circular.
Ex.D.115 Assets & Liability statement of year
2005-06
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Spl.C.C. No.21/2009
Ex.D.116 Assets & Liability statement of year
2006-07
Ex.D.117 Assets & Liability statement of year
2003
Ex.D.118 Apex bank statement of accused.
Ex.D.119 C.C of sale deed dtd.29-04-2004.
Ex.D.120 Conduct & disciplinary rules of
KSDL.
Ex.D.121 Agreement dtd.05-05-2000
Ex.D.121(a) Signature of DW. 12.
Ex.D.122 Affidavit regarding advancement of
loan executed by Venkatarayappa.
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.