Bangalore District Court
State By Lokayukta Police vs H.Thimmegowda on 24 February, 2021
IN THE COURT OF LXXVIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE (P.C.Act), BENGALURU
(C.C.H.No.79)
Present: Sri.Gopalakrishna Rai.T, B.A.(Law), LL.B.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.Act.), Bengaluru.
Dated: 24th day of February 2021
Special C.C. No.138/2009
Complainant : State by Lokayukta Police,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused : H.Thimmegowda,
S/o Late Huchegowda,
Dy. Superintendent of Excise,
Bengaluru.
R/at No.823, 13th Cross,
3rd Main Road,
Mahalakshmi Layout,
Bengaluru.
(By Sri.S.P.H.,Advocate)
Date of commission of : 23.06.2006
offence
Date of report of occurrence : 23.06.2006
Date of arrest of accused : 23.06.2006
Date of release of accused : 28.06.2006
on bail
Date of commencement of : 05.10.2012
evidence
/2/
Spl.CC.138/2009
Date of closure of evidence : 28.05.2019
Name of the complainant : Irshad Ahmed Khan
Offence complained of : Punishable under section 13(1)
(e) r/w/s 13(2) of Prevention of
Corruption Act.
Opinion of the Judge : Not guilt.
JUDGMENT
The accused named above has been prosecuted by the Police Inspector, Karnataka Lokayukta (City Division), Bengaluru, for the offence punishable under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988.(in short PC Act).
1. The brief facts of the prosecution case are as under :
1.1. During 2006 the accused was working as Deputy Superintendent of Excise, State Vigilance Squad, Bengaluru. On 23.06.2006 a raid was conducted to his house. The investigation undertaken by the Police at Karnataka Lokayukta revealed the fact that during the check period commencing from September 1984 to 23.06.2006 the accused found to be in possession of pecuniary resources in his name and in the name of his family members to the tune of Rs.42,52,892.00 and his family expenses during this period was Rs.10,32,607.00 and during this period the known source of income of /3/ Spl.CC.138/2009 the accused was Rs.35,58,283.00 and hence he found in possession of assets worth Rs.17,27,219.00 i.e., 48.50% disproportionate to his known source of income for which he could not satisfactorily account for.
Thereafter, on securing prosecution sanction, the Investigating Officer (IO in short) has filed the final report against the accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act.
1.2. After taking cognizance of the offence, in response to process of summons the accused appeared before the court and was provided with copies of final report and its enclosures as provided under section 207 of Cr.P.C. On hearing both the parties, this court found sufficient materials to frame charge against the accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act. Accordingly, charge was duly framed. The accused pleaded not guilty and claimed to be tried.
2. Evidence of prosecution:
2.1. In order to bring home the guilt of accused, the prosecution has examined the police officer who has submitted source report as per Ex.P-2, registered the case, conducted investigation into the matter and filed final report against the accused as PW.2. Through this witness the prosecution has marked search mahazar as per Ex.P.1, FIR as per Ex.P.3, search warrant as per Ex.P.4 and other documents collected by him as per Ex.P.5 to 39 respectively. Similarly, panchas to Ex.P.1 search mahazar by /4/ Spl.CC.138/2009 name C.S.Babu Nagesh, Smt.Kavitha.M.G and K.C.Ramalingaiah were examined as PW.1, PW.4 and P.W.7 respectively. The Under Secretary to the Department of Finance and Excise by name B.N.Jagadish is examined as PW.3 and through this witness prosecution sanction order is marked as per Ex.P.14. The Joint Director, Statistics (now retired), Karnataka Lokayukta by name Jayadeva Prakash is examined as PW.5 and his report with regard to domestic expenditure of the accused during the check period is marked at Ex.P.26. The police constable by name Srinivasa Murthy.R. who has prepared mahazar as per Ex.P.1 is examined as PW.6. The Assistant Engineer, Quality Division of PWD by name B.Prasanna Kumar who has issued Ex.P.42 valuation report of two houses is examined as PW.8. According to prosecution, the gold and silver articles found in the house of accused are valued by one Balachandra Sait and he is examined as PW.9. The Sr.Assistant Director of Agriculture, Kadoor, author of Ex.P.36 Report of Agricultural Income is examined as PW.10. One K.Gopya Naik, Assistant Director of Agriculture, Turuvekere is examined as PW.11. The father-in-law of the accused by name Marigangaiah is examined as PW.12. The Sr.Motor Vehicle Inspector of Rajajinagar by name Ramanjanappa who has furnished the details of Hero Honda Splendor Motor Cycle bearing registration No.KA02 EE 4860 as per Ex.P.25 is examined as PW.13.
2.2. This court has recorded the statement of accused as provided under sec.313 of Cr.P.C. The accused denied the incriminating /5/ Spl.CC.138/2009 circumstances found in the evidence of prosecution witnesses appearing against him. He filed his written-statement under section 313(5) of Cr.P.C.
3. DEFENSE EVIDENCE :
3.1. The accused was thereafter called upon to give in writing the list of persons whom he propose to examine as witnesses and documents on which he propose to rely as required u/sec.22 of PC Act. On 31.10.2017, the accused has filed an application under section 243 of Cr.P.C. along with 24 documents. Further, to disprove the case of the prosecution and to substantiate his defense, the accused has examined 7 witnesses as DW.1 to DW.7. In addition to it, he got examined himself as DW.8 besides marking 55 documents as per Ex.D.1 to Ex.D.55.
4. ARGUMENTS :
4.1. Heard the arguments of learned Public Prosecutor for the State and Sri.S.P.H.,Advocate appearing for the accused. In addition to it, the learned counsel for the accused has submitted written arguments.
4.2. I have bestowed my careful thought to the arguments canvassed and have carefully scrutinized the oral and documentary /6/ Spl.CC.138/2009 evidence produced by the prosecution and the accused in the backdrop of the defense set up by the accused as spelt-out in the written statement filed u/sec.313(5) of Cr.P.C. Further, I have also referred to the proposition of law enunciated in the large number of decisions relied on by the accused.
5. The points, that are arisen for my consideration:
1. Whether the prosecution has secured valid sanction to prosecute the accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act ?
2. Whether the prosecution proves beyond reasonable doubt that, the accused being a public servant, during the check period commencing from September 1984 to 23.06.2006 was found in possession of property worth Rs.17,27,219.00 i.e., 48.50% disproportionate to his known source of income for which he could not satisfactorily account and thereby he has committed the offence punishable under Sec.13(1)(e) r /w Sec.13(2) of PC Act ?
3.What order ?
6. My findings to the above points are as under :
Point No.1 : in the affirmative Point No.2 : in the negative Point No.3: as per final order below for the following /7/ Spl.CC.138/2009 REAS O N S
7. Point No.1 :
7.1. The fact that as on the date of raid more precisely as on 23.06.2006 accused Thimmegowda was working as Deputy Superintendent of Excise, State Vigilance Squad, Bengaluru and that earlier to it he was serving as an officer in the Department of Excise is not in dispute. Thus, it is proved that the accused was a public servant as defined under section 2(c) of PC Act.
7.2. The criminal prosecution is initiated against the accused by the Police at Karnataka Lokayukta for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act.
Hence, it is for the prosecution to show that, it has obtained a valid sanction as required under section 19 of PC Act. Similarly, it is incumbent for the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This process can be established by the prosecution by producing original sanction order which contains the facts constituting the offence and the grounds of satisfaction and also by adducing evidence of the author who has issued prosecution sanction order.
/8/ Spl.CC.138/2009 7.3. Before adverting to the facts and evidence placed on record, it is just and necessary to place reliance on the decisions reported in 2013 (8) SCC 119 in the case between State of Maharastra through CBI Vs. Mahesh.G.Jain. In the said decision the Apex Court has held that 'the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused'.
7.4. In the decision reported in 2014(14) SCC 295 in the case between CBI Vs. Ashok Kumar Agarwal, the Apex Court of this Nation has held that, "the prosecution has to satisfy the Court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed /9/ Spl.CC.138/2009 before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or to withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought".
7.5. It is further held that "it is also to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the public servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty".
7.6. It is further held that "consideration of the material implies application of mind. Therefore, the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant materials i.e, FIR, disclosure statement, recovery memos, draft chargesheet and other materials on records were placed before the /10/ Spl.CC.138/2009 sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the materials, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind".
7.7. It is further held that "there is an obligation on the Sanctioning Authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. The prosecution must therefore send the entire relevant record to the Sanctioning Authority including FIR, Disclosure Statements, Statements of witnesses, recovery memos, draft charge sheet and all other relevant materials. The record so sent should also contain the material/document, if any, which may tilt the balance in favor of the accused and on the basis of which, the Competent Authority may refuse action. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently by applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied /11/ Spl.CC.138/2009 its mind to all the relevant materials. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that entire relevant facts had been placed before the Sanctioning Authority and the authority had applied its mind on the same and that sanction had been granted in accordance with law. From the study of the above decision it is clear that the prosecution is under an obligation to place entire records before Sanctioning Authority and satisfy the Court that, the authority has applied its mind. Similarly, the Sanctioning Authority has to do complete and conscious scrutiny of whole record placed before it. The Sanction Order should show that the authority has considered all the relevant facts and applied its mind."
7.8. Therefore, it is for this court to examine the evidence produced by the prosecution in the light of ratio laid down in the decisions referred to above. In this context of the matter to prove the fact that the prosecution has obtained valid sanction to prosecute the accused, it has placed reliance on the evidence of PW.1 and PW.3 and document at Ex.P.40.
7.9. It is the definite evidence of PW.1 that after completion of his investigation he prepared final report and on 15.05.2009 received prosecution sanction order, prepared charge sheet and submitted the same to the court. This evidence of PW.1 is not at all denied by the accused at the time of his cross-examination. Therefore, the evidence of PW.1 with /12/ Spl.CC.138/2009 regard to receipt of sanction for prosecution as per Ex.P.40 is remained unchallenged. Thus, the evidence of PW.1 clearly establish the fact that he has obtained sanction from the competent authority as required under section 19 of PC Act to prosecute the accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act. However, it is for the prosecution to show that the order of prosecution sanction as per Ex.P.40 is a valid sanction as required under section 19 of PC Act.
7.10. In this aspect of the matter, to establish the factum of securing valid sanction order, the prosecution has placed reliance on the evidence of PW.3 B.N.Jagadish who was working as Under Secretary to the Finance Department/Excise during the year 2009. It is the evidence of PW.3 that he received a letter from ADGP, Karnataka Lokayukta, Bengaluru Urban dated 04.12.2008 under section 19(1) of PC Act seeking permission to prosecute Thimmegowda, Deputy Superintendent of Excise. It is also his evidence that along with the letter he received copies of investigation report, FIR, search mahazar, final report, files forming part of investigation and other prosecution papers. His evidence in cross-examination would show that he has not only calculated the figures mentioned in Ex.P.40 but also the statements of CW.33 to 40. In fact PW.3 has deposed that he has placed the records before the Joint Secretary and on 15.01.2009 received approval from the Minister. It is true that PW.3 is subjected to the test of cross-examination. However, at the time of his cross-examination nothing is elicited from his mouth to /13/ Spl.CC.138/2009 the effect that he did not examine the documents annexed to the letter of ADGP. The evidence of PW.3 inspire confidence in the mind of the court that he has examined all the investigation materials and had come to the conclusion that the materials produced by the investigating agency are sufficient to accord sanction to prosecute accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act.
7.11. Similarly, his evidence would also indicate that he has deposed as to what he has done after the receipt of letter of ADGP and the documents annexed to it. Therefore, to disbelieve or to discard the testimony of PW.3 absolutely there are no reasons much less good reasons. It is pertinent to note that nothing is suggested to PW.3 that only to falsely implicate the accused he has issued Ex.P.40 without examining the documents produced by the investigating agency. Similarly, it is not the case of the accused that the investigating agency did not produce materials and evidence collected by it for the scrutiny of PW.3.
7.12. At the time of cross-examination of PW.3 it is suggested that he did not apply his mind and issued Ex.P.40 order mechanically, but he has denied this suggestion. It is settled proposition of law that denied suggestion is not an evidence. In fact except bare suggestions directed to PW.3 nothing worthwhile is elicited which is capable of discarding his corroborative testimony with regard to he applying his mind to the materials produced by the investigating agency through ADGP of /14/ Spl.CC.138/2009 Karnataka Lokayukta. It is relevant to note that a reading of cross- examination directed to PW.3 would demonstrately indicate that after getting approval from the Minister he has issued authenticated order as per Ex.P.40. The accused has failed to convince the court as to why the evidence of PW.3 is to be discarded. No doubt it is true that at the time of recording his statement under section 313 of Cr.P.C., at question No.19, the accused denied the version of PW.3. But it is relevant to mention that mere denial is not an evidence in the eyes of law.
7.13. The reading of Ex.P.40 Order dated 07.05.2009 would show that PW.3 has signed on the same on behalf of His Excellency, the Governor of Karnataka. The operative portion of Ex.P.40 would clearly reveal the fact that the authority which has issued the order is empowered to remove the accused from the post of Dy.S.P. This aspect of the matter is not at all denied by the accused. Therefore, from the reading of Ex.P.40 one and only conclusion that can be arrived is that the authority which is empowered to remove the accused from the post of Dy.S.P. has issued the same. Accordingly, it is held that it is the competent authority which has issued Ex.P.40.
7.14. Further, page no.1 of Ex.P.40 would show that before passing the order the authority has received copy of FIR, search warrant, final report, documents relating to assets, expenditure and income of the accused. In addition to it, the authority has examined the documents /15/ Spl.CC.138/2009 furnished by the accused in Volume No.III, page no.1 to 165. Thus, it is clear that in addition to the materials collected by the IO, the authority had an opportunity to consider the explanation given by the accused in the form of Schedules. Though, PW.3 is subjected to cross-examination, nothing is suggested to him that he did not consider the documents and explanation submitted by the accused in the form of Schedules. The evidence of PW.3 is inaccordance with the contents of Ex.P.40 order. The meaningful reading of Ex.P.40 would indicate that after subjecting all the documents to the process of examination, the authority empowered to remove the accused from the post of Dy.S.P., has issued the same. The oral evidence of PW.3 and contents of Ex.P.40 would clearly establish the fact that after due application of its mind to the documents produced by the IO, on expressing its satisfaction, the competent authority has issued the same.
7.15. It has been held by Hon'ble Supreme Court of India in the case of State of Bihar Vs. P.P.Sharma reported in AIR 1991 SC 1260 that when the government accorded sanction, section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut with statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusal to grant sanction was made by the appropriate authority. In the /16/ Spl.CC.138/2009 present case the evidence of PW.3 and the contents of Ex.P.40 speaks itself about the examination of materials and evidence collected by the IO. Therefore, the accused in the present case failed to rebut the presumption contemplated under section 114(e) of Evidence Act. Hence, presumption is drawn to the effect that the authority empowered under the statute has examined the materials and on recording its satisfaction issued Ex.P.40 Order.
7.16. It is borne out from the evidence of PW.3 that earlier one order was issued as per Ex.P.41 and as there are some mistakes therein the fresh order is issued as per Ex.P.40 without the approval of the Minister. The comparative study of Ex.P.40 and Ex.P.41 would indicate that there are some minor discrepancies with regard to the documents examined by the author. However, both in Ex.P-40 and P-41, authority has expressed same opinion. Hence, the circumstances contended by the accused that Ex.P.40 order is without the approval of the Minister of the Department is of no avail to the stand taken by him.
7.17. Thus, on appreciation of both oral and documentary evidence on record, this court is of the opinion that evidence of PW.3 is worthy to accept as he has deposed as to what he has done in the matter. The meticulous scrutiny of Ex.P.40 would establish that the authority competent to remove the accused from the post of Dy.S.P. has by expressing its satisfaction based on the materials produced by the /17/ Spl.CC.138/2009 investigation agency issued the same. Therefore, absolutely there are no grounds to accept the contention of the accused that the prosecution did not secure valid sanction to prosecute him for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act. On the other hand, the prosecution has proved to the satisfaction of this court that it has obtained valid sanction as per Ex.P.40 to prosecute the accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act. Hence, this court is of the opinion that the evidence of PW.3 and contents of Ex.P.40 satisfy the guidelines issued by the Apex Court in the decisions referred to above. Resultantly, it is held that the prosecution has obtained valid sanction to prosecute accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act. Accordingly, point No.1 is answered in the Affirmative.
8. Point No.2:
8.1. The evidence of PW.2 Irshad Ahmed Khan, investigator into the crime would reveal that he has collected source information and prepared a source report as per Ex.P.2 and submitted the same to the Superintendent of Police (in short S.P.) and as per the instructions of S.P,.
he has registered the case in Cr.No.23/2006 and transmitted FIR to the jurisdictional court as per Ex.P.3. The evidence of PW.2 would show that after perusal of source report as per Ex.P-2, SP has asked him to go ahead with the investigation and hence, he has registered the case and /18/ Spl.CC.138/2009 conducted investigation into the matter. His evidence and contents of Ex.P-2, 3 & 4 would show that he has obtained search warrant as per Ex.P.4 and proceeded further in the lines of conducting search of the house of the accused. The evidence of PW.2 would also show that after perusal of source report, S.P., has asked him to go ahead with the investigation and hence he has registered the case and conducted investigation into the matter.
8.2. The learned counsel for the accused has placed reliance on the decisions reported in AIR 2010 (2) KAR 413 in the case between Babappa Vs. State by Lokayukta Police, Gulbarga, 1993 supp.(1) SCC 335 in the case between State of Haryana Vs. Bajanlal, AIR 2007 SC Supp.1860 in the case between State by Inspector of Police Vishakaptnam Vs. Surya Shankaram Karri and argued that PW.2 Irshad Ahmed has carried out investigation without authorisation of SP as required under section 17 of PC Act and hence the same is fatal to the case of prosecution.
8.3. The Hon'ble High Court of Karnataka in the case between Babappa Vs. State by Lokayukta Police, Gulbarga has held that when special enactment prescribes certain procedure and makes it mandatory, there is no need for the authority to deviate. It is essential that the authority must act in consonance with the requirement of law, in order to give effect to the object of the act for which it is legislated. The lapses /19/ Spl.CC.138/2009 certainly enure to the benefit of the accused. Further, by placing reliance on the decision of the Apex Court in Surya Shankaram Karri's case, it is held that section 17 proviso 2 of the Act specifically requires an order to be passed by an authority not less the rank of Superintendent of Police to investigate the matter in a relation to an offence punishable under section 13(1)(e) r/w section 13(2) of PC Act.
8.4. The Apex Court of this Nation in the decision reported in 2006 (7) SCC 172 in the case between State by Inspector of Police Vishakaptnam Vs. Surya Shankaram Karri has held that the provisions of section 17 of PC Act, 1988 provides for investigate by a person authorised in this behalf. It makes investigation only by police officers of the ranks specified therein to be imperative in character. The second proviso appended to section 17 of the Act provides that an offence referred to in Clause (e) subsection 1 of section 13 shall not be investigated without the order of a police officer not below the rank of Superintendent of Police. Authorisation by a Superintendent of Police in favor of an officer so as to enable him to carry out investigation in terms of section 17 of the Act is a statutory one.
8.5. Further, a reading of section 17 of PC Act would show that in respect of cases falling outside the purview of the clauses (a) & (b) of section 17, it is the Deputy Superintendent of Police or a Police Officer of equivalent rank who is required to investigate any offence punishable /20/ Spl.CC.138/2009 under the PC Act. The second proviso makes it further clear that in respect of offences referred to clause (e) of sub-section 1 of section 13, the investigation shall be proceeded with the order of a police officer not below the rank of the Superintendent of Police.
8.6. Admittedly, PW.2 has registered the present case against the accused for the offence punishable under section 13(1)(e) r/w section 13(2) of PC Act. Therefore, second proviso attached to section 17 comes into play. As has been discussed above, so as to investigate the offence punishable under section 13(1)(e) of PC Act, the police inspector shall have an order of authorisation from a police officer not below the rank of Superintendent of Police.
8.7. In the present case PW.2 being the officer in the rank of police inspector has stated that he has submitted Ex.P.2 source report to SP and in turn SP asked him to go ahead with the investigation. In this aspect of the matter except this casual evidence of PW.2, he has not stated as required under second proviso attached to section 17 of PC Act, the SP has passed an order of authorisation in his favor to conduct investigation in the present case.
8.8. A reading of endorsement made in Ex.P.2 source report would show that SP, Lokayukta has received the same on 22.6.2006 and returned it to PW.2 on 23.6.2006 for registration of case and to take up /21/ Spl.CC.138/2009 investigation. From the evidence produced by the prosecution, it is clear that except above referred endorsement made in Ex.P.2, the SP has not passed any written order authorising PW.2 to conduct investigation.
8.9. At this juncture, it is relevant to place reliance on the decision of the Apex Court reported in the case between Ashok Tsering Bhutia Vs. State of Sikkim reported in 2011 (4) SCC 402. In this decision, it is observed in para no.20 that the matter of investigation by an officer not authorised by law has been considered by this court time and again and it has consistently been held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarraige of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the court or procedure relating to cognizance or trial.
8.10. Further, in para no.23 of the decision it is observed that in the instant case, the officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. It is evident from the above that the judgment in Kalpanath Rai and Suryashankaram Karri have been decided by two judge bench of this court and in the later judgment, the earlier judgment of this court in /22/ Spl.CC.138/2009 Kalpanath Rai has not been taken note of. Technically speaking it can be held to be per-incuriam.
8.11. Therefore, in the humble opinion of this court, in view of the decision of the Hon'ble Supreme Court, the decision of the Hon'ble High Court of Karnataka in Babappa's case cannot be made applicable to facts and circumstances of this case. Hence, in view of the above observations it is held that non-securing of authorisation as required under second proviso attached to section 17 of PC Act is not fatal to the case of the prosecution because of the fact that in the present case, the accused has failed to show that there was unfair investigation which caused prejudice to him.
8.12 One of the contentions that was raised by the accused is that PW.2 is the officer in the rank of Police Inspector and therefore he is not authorised to conduct investigation into the matter. This contention of the accused is cannot be accepted because of the simple reason that in ILR 2009 Karnataka 2470 in the case between L.C. Hussain vs. State of Karnataka by Police Inspector, Lokayukta police, Chithradurga, it is held that by virtue of notification dated 6-2-1991 bearing HD 286 PEG 90, generally authorise the Inspector of Police of Lokayukta to investigate the matters. In view of the same, it is just and necessary to place reliance on notification dated 6-2-1991. The same reads as follows :
/23/ Spl.CC.138/2009 Notification-No.HD 286 PEG 90, dated 6.2.1991 - "in exercise of the powers conferred by the First Proviso to section 17 of the Prevention of Corruption Act, 1988 (Central Act No.49 of 1988 and in supersession of Notification No.HD 175 PEG 86/1 dated 26th May 1986, the Government of Karnataka hereby authorises all the Inspectors of Police, Office of Karnataka Lokayukta for the purpose of said proviso."
8.13. Thus, from the reading of above notification it is clear that Government has issued authorisation to all the Inspector of Police, office of Karnataka Lokayukta to investigate in to the matter for the purpose of first proviso to Sec.17 of P.C. Act. Therefore, the investigation that was carried out by PW.2 is in accordance with the notification of the Government and decision of the Hon'ble High Court of Karnataka.
Hence, at any stretch of imagination it cannot be said that without authority PW.2 has conducted investigation.
8.14. The learned Counsel for the accused has argued that without application of judicious mind, Ex.P.4 search warrant was issued. This contention is cannot be accepted because at the time of cross- examination of PW.2 nothing is asked to him as to what are all the materials produced by him before the Special Judge so as to secure search warrant as per Ex.P.4. Under the circumstances, only inference that can be drawn is that being satisfied with the materials produced by PW.2, learned Special Judge has issued search warrant as per Ex.P.4. Further, in so far as issuance of Ex.P.4 search warrant is concerned there /24/ Spl.CC.138/2009 is presumption under section 114(e) of Evidence Act. This presumption available in favor of the prosecution is not at all rebutted by the accused. Hence, presumption stands unrebutted. Resultantly, it is held that Ex.P.4 search warrant was issued after due application of judicious mind.
8.15. It is the evidence of PW.2 that he secured the presence of witnesses by C.S.Babu Nagesh, Ramalingam and Kavitha and conducted search to the house of the accused situated at Mahalakshmi Layout. The said C.S.Babu Nagesh, Ramalingam and Kavitha were examined as PW.1, 4 and 7 respectively. In single voice they have deposed that PW.2 Irshad Ahmed Khan has conducted raid to the house of accused at Mahalakshmi Layout and drawn mahazar as per Ex.P.1. It is the definite evidence of PW.1, 2, 4 and 7 that they found cash of Rs.1,79,800.00, gold ornaments and silver articles weighing about 116.5 grams and 1330 grams respectively and some files in the house of accused. Though PW.1, 2, 4 and 7 were subjected to cross-examination nothing is elicited to the effect that they have not participated in the process of search. They have denied the suggestions directed to them. In the case between Khimji Kurji Bai Vs. State of Gujarath reported in 1982 GLH 977 it is held that mere hurling of some suggestions, which are denied, can hardly take the place of proof or evidence. A suggestion denied by a witness remains only a suggestion and has no evidentiary value. This dictum is applicable to the present case because except bare suggestions, nothing worthwhile is elicited from the mouth of PW.1, 2, 4 & 7. The cumulative effect of /25/ Spl.CC.138/2009 evidence of PW.1, 2, 4 & 7 is that they have participated in the process of search conducted in the house of accused situated at No.823, 3 rd Main, 13th Cross, Mahalakshmi Layout, Bengaluru. It is pertinent to mention that accused did not dispute the search and seizure evidenced under Ex.P.1 mahazar dated 24.06.2006. Therefore, the search and seizure as per Ex.P.1 mahazar is stands proved.
8.16. In the decision reported in AIR 1973 SC 2773 in the case between Kali Ram Vs. State of Himachal Pradesh, the Hon'ble Supreme Court has held that another golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other is to his innocence, the view which is favorable to the accused should be adopted. This principle has special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.
8.17. Further, in the decision reported in 2010 (9) SCC 189 in the case between Babu Vs. State of Kerala, it is held that every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. The burden of proof is always lies on the prosecution.
/26/ Spl.CC.138/2009 8.18. Therefore, keeping the above proposition of law in mind, let me examine oral and documentary evidence placed on record and to find out as to whether the prosecution has established that this accused accumulated pecuniary resources disproportionate to his known source of income as required under section 13(1)(e) of PC Act or not.
9. Assets of the accused:
The IO has taken the following assets of the accused in to consideration for the purpose of assessing disproportionate assets.
Value
Sl.No. Assets
(in Rs.)
1 The site and house built in site at No.5, 12th 3,70,000.00
Cross, Bhovi Palya in the name of accused
2 The site No.823, 13th Cross, Mahalakshmi 15,31,000.00
layout, Bengaluru in the name of Smt.Shylaja, wife of accused 3 BDA site at Anjanapura, Bengaluru in the name 1,71,720.00 of accused 4 4 Acres of Agricultural land at Mugaluru 1,37,000.00 Grama, Turuvekere Taluk, Tumkur District in the name of accused 5 Amount found in SB Account 69,713.00 No.M.A.S.B.000005887 at Canara Bank, Mahalakshmi Layout Branch, Bengaluru in the name of accused 6 Amount found in SB Account 12,918.00 /27/ Spl.CC.138/2009 No.M.A.S.B.000022673 at Canara Bank, Mahalakshmi Layout Branch, Bengaluru in the name of wife of accused 7 Amount found in SB Account 6,032.00 No.1122500100572701 at Karnataka Bank Ltd., Mahalakshmipuram, Bengaluru in the name of Kiran, son of accused 8 Amount found in SB Account No.6400070601- 29,158.00 9 at State Bank of Mysore, Chamarajanagara Branch, Chamarajanagar, Bengaluru in the name of accused 9 Amount invested on NSC by accused 72,500.00 10 Amount invested on ICICI Bonds 30,000.00 11 Amount invested on IDBI Deepa Discount 15,900.00 Bond 12 FD in Canara Bank in the name of accused 4,37,058.00 13 FD in Canara Bank in the name of Smt.Shylaja, 2,62,138.00 wife of accused 14 FD in Canara Bank in the name of Kiran, son of 84,847.00 accused 15 FD in Canara Bank in the name of T.Goutham, 84,847.00 son of accused 16 FD in Krishna Jala Nigama in the name of Kiran, son of accused 10,000.00 17 Amount deposited in PPF Account in the name 60,000.00 of accused 18 Amount deposited in PPF Account in the name 2,10,000.00 of wife of accused 19 Deposit made for water connection at house 500.00 No.5, 12th Cross, Bhovipalya, Mahalakshmipuram, Bengaluru.
/28/ Spl.CC.138/2009 20 Deposit made in respect of electricity 1,000.00 connection No.5, 12th Cross, Bhovipalya, Mahalakshmipuram, Bengaluru 21 Deposit made for electricity connection at house 10,909.00 No.823, 13th Cross, 3rd Main Road, Mahalakshmi Layout, Bengaluru.
22 Deposit towards Gas Connection bearing 950.00 No.891796 to the house of accused 23 Deposit towards telephone land line 1,000.00 No.23498963 to the house of accused 24 Value of Hero Honda Splendor Plus bike 43,140.00 bearing registration No.KA02 EE 4860 25 Cash found in the house of accused at the time 1,79,800.00 of raid 26 Value of Gold ornaments 15,120.00 27 Value of silver articles 6,640.00 28 Value of household articles 3,99,002.00 Total value 42,52,892.00 9.1. It is the contention of the prosecution that accused Thimmegowda purchased site no.5 under the Sale Deed dated 10.12.1984 for a sum of Rs.20,000.00. In order to substantiate this contention the prosecution has placed reliance on the Letter of Sub-Registrar, Rajajinagar and certified copy of Sale Deed dated 10.12.1984 as per Ex.P.8. It is the evidence of PW.2 that he has collected certified copy of Sale Deed as per Ex.P.8 in respect of site no.5. This evidence of PW.2 is not denied by the accused. It is relevant to mention that accused being /29/ Spl.CC.138/2009 DW.8 at paragraph no.10 of his evidence has voluntarily deposed that in Bhovi Palya adjacent to Mahalakshmi Layout he has purchased a site measuring 25x30 feet for Rs.20,000.00 in the year 1984. Therefore, from the above admitted fact it is proved that the accused has purchased site no.5 on 10.12.1984 under Ex.P.8 Sale Deed for a sum of Rs.20,000.00. Hence, the IO is justified in considering the value of site no.5 to the tune of Rs.20,000.00.
9.2. According to prosecution the accused has constructed a residential house in site no.5 and its value was Rs.3,50,000/-. In order to prove the same it has secured Ex.P.42 Valuation Report bearing no.LOK/INV(T)/Val-9/2008/AE2 dated 31.07.2008 from Prasanna Kumar, Assistant Engineer, Technical Wing, Karnataka Lokayukta. According to PW.2 value of house constructed over site no.5 as on the date of valuation was Rs.3,50,000.00. It is the evidence of PW.8 being the author of Ex.P.42 Report that he has inspected house no.5 and found that its ground floor was built in the year 1989-90 and first floor was in the year 2000-01 and he has assessed the value of the same at Rs.3,50,000.00 as per the schedule rates fixed by the Government.
9.3. In fact, it is submitted by the learned counsel for accused that by virtue of Public Works and Irrigation Department Code only Assistant Executive Engineer shall after inspection, obtain sanction plans and elevators etc., and prepare valuation statement and submit the same /30/ Spl.CC.138/2009 to the Executive Engineer as per Chapter 13. There is no dispute with regard to this aspect of the matter. However, in the said Code, there is no mention to the effect that the report prepared by Assistant Engineer is not admissible in evidence. Hence, on this score Ex.P.42 cannot be discarded as contended by the accused.
9.4. The evidence of PW.8 would show that he has inspected house no.5, conducted measurement and valuation is made on item wise rates of the building as per schedule of rates of PWD, Bengaluru Circle for the respective year of construction. The Report as per Ex.P.42 would show that prevailing market rates are considered for the respective year of constructions for the items which are not included in the Schedule of Rates. It is pertinent to note that at the time of cross-examination of PW.8 the genuineness or otherwise of Ex.P.42 is not seriously denied by the accused. It is elicited from the mouth of PW.8 that he has not enclosed calculation sheet to Ex.P.42. The suggestion that without ascertaining the materials used for construction, Ex.P.42 Report was prepared is denied by PW.8. The suggestion that Ex.P.42 is incorrect valuation report is also denied by PW.8. Further, it is to be noted here itself that denied suggestion is not an evidence. Therefore, the denied suggestions of PW.8 will not enure to the benefit of the accused to contend that Ex.P.42 is not a genuine report.
/31/ Spl.CC.138/2009 9.5. It is the evidence of accused being DW.8 that he has constructed ground floor in the year 1991 by spending Rs.66,500.00 and first floor in the year 2001 by spending Rs.1,76,055.00. It is also his evidence that his wife and brother have supervised the construction of house. In order to believe this version of DW.8 that he has spent only Rs.66,500.00 and Rs.1,76,055.00 to construct ground and first floor in site no.5, there are no cogent reasons before the court. The evidence of DW.8 is not supported by the evidence of any expert or report. Therefore, this court is of the opinion that without any documentary evidence, uncorroborated testimony of DW.8 is not worthy to accept.
9.6. The reading of Ex.P.42 would show that built up area of ground floor and first floor is 62.23 sq meter each. The report also indicate that each floor comprises of hall, two bed rooms, kitchen, pooja room and common bath. As per the report, valuation of the constructed portion of ground and first floor amounts to Rs.3,50,000.00. The evidence of PW.8 and the report as per Ex.P.42 would indicate that he did conduct inspection of the building built in site no.5 and arrived a reasonable conclusion that valuation of the building was Rs.3,50,000.00.
9.7. It is argued that report of PW.8 as per Ex.P.42 is prepared without the assistance of blue print, plan and structural design. Admittedly, it is the accused who has put up construction over site no.5 in the year 1991 and 2001. Under the circumstances, the documents like /32/ Spl.CC.138/2009 blue print, plan and structural design shall be in the custody of the accused only. Though the accused being DW.8 deposed that he has spent Rs.66,500.00 and Rs.1,76,055.00 to put up construction over site no.5, he has not produced any material evidence. Therefore, section 106 of Evidence Act comes into play. As per this provision of law when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is the accused who has put up construction in site no.5. When accused is in possession of documents it is for him to produce such documents to substantiate his stand. But there is no explanation from the side of accused as to why he has withheld best piece of evidence. Hence, only conclusion that can be arrived is that the evidence of DW.8 that he has spent only to Rs.66,500.00 and Rs.1,76,055.00 to put up construction in site no.5 is without any substance. Hence, the evidence of PW.8 and contents of Ex.P.42 are sufficient to hold that PW.8 has arrived a just conclusion while evaluating the value of the building found in site no.5.
9.8. Further, there are no grounds to disbelieve the oral testimony of PW.8 and his report as per Ex.P-42 to say that the valuation made by him is erroneous. Absolutely there are no reasons to say that the valuation arrived by PW.8 regarding cost of construction is unscientific or irrational.
/33/ Spl.CC.138/2009 9.9. The learned counsel for the accused has placed reliance on the decision of Hon'ble Sikkim High Court in the case between Dana Subba Vs. State of Sikkim, Vigilance Department and argued that Ex.P.42 is not annexed with SOR and without the assistance of SOR it will deprive the right of the accused and the court to examine the genuineness of the report. This contention is well founded. However, fact remains that at the time of cross-examination of PW.8 nothing is suggested to him to the effect that without the assistance of SOR he has valued the building found in site no.5. Hence, in the opinion of this court the non production of SOR is not fatal to the case of prosecution. Thus, for the discussions made herein above, this court is of the opinion that report of PW.8 as per Ex.P.42 is worthy to accept.
9.10. The learned counsel for the accused would submit that while considering the value of the building the court has to deduct 10% of contractor's profit, 10% of overhead charges, 10% of water line and watering charges. It is relevant to note that accused being DW.8 has deposed that the construction was supervised by his wife and brother. This fact is not denied by the prosecution. Under the circumstances, in order to meet the ends of justice, it would be proper to reduce overall cost of construction by 10% of the total cost of construction i.e., Rs.3,50,000.00. Therefore, by reducing 10% of total cost of construction, the cost of construction of the building effected by the accused during the check period is determined at Rs.3,15,000.00.
/34/ Spl.CC.138/2009 9.11. Thus, it is held that total value of site and house in site no.5 is Rs.20,000.00+Rs.3,15,000.00 amounts to Rs.3,35,000.00. Hence, asset value of house No.5 is fixed at Rs.3,35,000.00.
9.12. According to the accused site no.823 was purchased by his father-in-law on 20.01.1997 in the name of Smt.Shylaja. The IO during the course of his investigation has collected certified copy of Sale Deed date 20.1.1997. A reading of this document would indicate that Smt.Shylaja has purchased this site from Jayalakshmi Bai for a sale consideration of Rs.5,21,000.00. Thus, it is proved that the wife of accused M.Shylaja acquired site no.823 in the year 1996-97 more precisely on 20.01.1997.
9.13. In the present case Smt.Shylaja is examined as DW.7. It is her definite evidence that she married accused on 25.05.1989 and after the marriage, her father had entered into an agreement for purchase of site no.823 with one Jayalakshmi Bai in the year 1996. In order to substantiate the same she has placed reliance on Ex.D.1 Sale Agreement dated 15.09.1996. In her cross-examination she has deposed that her father was working as full time employee of KEB. However, she has denied the suggestion that her father was not having financial capacity to purchase site no.823 for a sum of Rs.5,21,000.00. In fact the IO in his final report has opined that Marigangaiah had no financial capacity to invest a sum of Rs.5,21,000.00 during the year 1996.
/35/ Spl.CC.138/2009 9.14. In order to prove the contents of Sale Agreement dated 15.09.1996, the accused has placed reliance on the evidence of PW.12 Marigangaiah. In fact, the prosecution itself has elicited from the mouth of this witness that in the year 1996 he purchased a site at Mahalakshmi Layout, Bengaluru in the name of his daughter by paying Rs.5,21,000.00. When the prosecution witness himself has deposed the fact that he has purchased site in the name of his daughter by paying sale consideration of Rs.5,21,000.00, there is no meaning in contending that the father of Shylaja had no financial capacity to pay sale consideration of Rs.5,21,000.00.
9.15. It is relevant to note that at the time of cross-examination of PW.12, accused got marked the Sale Agreement dated 15.09.1996 as Ex.D.1. Though PW.12 deposed contrary to the theory of prosecution, it has not chosen to cross-examine him. Therefore, at the stage of arguments, the prosecution is not expected to take a contrary stand than what is deposed by PW.12 on oath. The prosecution has failed to show that Ex.D.1 is a concocted document.
9.16. Under the circumstances, by placing reliance on Ex.D.1 and the evidence of PW.12 the only conclusion that can be arrived is that it is the father of Shylaja who has entered into an agreement with Jayalakshmi Bai so as to purchase site no.823. Thus, the evidence discussed herein above would support the contention of the accused that it is his father-in-
/36/ Spl.CC.138/2009 law who has entered into sale agreement as per Ex.D.1 with Smt.Jayalakshmi Bai in respect of site no.823.
9.17. It is relevant to mention that the IO in his Final Report has narrated the acquisition of site no.823 in the name of Smt.M.Shylaja was declared by the accused in his Annual Property Returns for the year 1996-97. It is relevant to mention that Annual Property Returns of the accused for the year 1996-97 is produced as per Ex.P.6. As per Ex.P.6, in the year 1996-97 itself accused has declared that a site in Mahalakshmi Layout was acquired by his wife Smt.M.Shylaja through her father. It is not the case of prosecution that the declaration so made in the year 1996- 97 is not accepted by accepting authority. It is relevant to mention that Annual Property Returns as per Ex.P.6 is obtained by the IO from the Excise Commissioner, Bengaluru along with letter dated 11.04.2007. Hence, the genuineness of the same is cannot be disputed.
9.18. At this juncture, it is relevant to refer explanation attached to section 13(1) of PC Act. The same reads as follows: For the purpose of this section, "known source of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. A conjoint reading of above explanation and the Annual Property Returns of accused for the year 1996-97 would demonstrately indicate that acquisition of site no.823 by Smt.M.Shylaja was intimated /37/ Spl.CC.138/2009 by the accused to his higher authority. The higher authority of the accused itself has furnished Ex.P.6 to the IO. Therefore, it is clear that the declaration so made by the accused is accepted by the competent authority.
9.19. The final report of PW.2 would show that site No.823 is the outcome of benami transaction. However, in his evidence PW.2 has only stated that he has collected documents in respect of site No.823. But, he has not given any analytical view to the effect that father of Smt. Shylaja had no financial stability to pay sale consideration of Rs.5,21,000/-. On the contrary, DW.7, 8 and PW.8 have categorically deposed that site No.823 was purchased by Marigangaiah (PW.8). In order to prove that sale transaction dated 20-01-1997 was benami transaction, absolutely there are no materials before the court.
9.20. Further, in the decision reported in AIR 1974 Supreme Court 171 in the case between Jaydayal Poddar (deceased) through L.Rs and another vs. Mst. Bibi Hazra and others, it is held that it is well settled that burden of proving that a particular sale is benami is always rests on the person asserting it to be so. In addition to it, in the decision reported in 1977 (1) SCC 816 in the case between Krishnanda Agnihothri vs. State of M.P., it is held as follows :
" It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to /38/ Spl.CC.138/2009 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 benami is the intention of the parties 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 the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof."
9.21. If the evidence placed by the prosecution is taken into consideration, it is crystal clear that it has not produced minimum evidence to show that the sale transaction dated 20-1-1997 was benami transaction. Under the circumstances, only conclusion that can be arrived is that it is Marigangaiah, father of Shylaja has acquired site No.823 in her name.
9.22. Thus, from the meticulous scrutiny of evidence of PW.12, DW.8 and contents of Ex.P.6, Ex.P.9 and Ex.D.1 it is clear that site no.823 of Mahalakshmi Layout was acquired by Marigangaih in the name of his daughter Smt.M.Shylaja. Therefore, sale consideration of Rs.5,21,000.00 in respect of site no.823 cannot be considered as asset value of the accused.
9.23. It is the contention of the prosecution that the accused has constructed a building over site no.823 and as per the valuation report of Assistant Engineer-2, Technical Wing, Lokayukta, its value was Rs.10,10,000.00. It is the evidence of PW.8 Prasanna Kumar that he /39/ Spl.CC.138/2009 inspected site no.823 wherein house was constructed in the year 1999- 2000. According to him, as per his assessment based on Schedule of Rates of the Government, value of house bearing no.823 was Rs.10,10,000.00. In fact, to substantiate his evidence he has produced Report as per Ex.P.42. The study of Ex.P.42 and the evidence of PW.12 would reveal the fact that house bearing no.823 consists of ground floor, first floor and second floor. Though PW.8 is subjected to cross- examination nothing is suggested to him that he has not made assessment based on Schedule of Rates of the Government. Admittedly, PW.8 is a Government Officer. Therefore, his report cannot be brushed aside only on the ground that certain suggestions were made to him. It is settled position of law that mere suggestion are not sufficient to dislodge or disprove the case of prosecution. The denied suggestion of PW.8 will not enure to the benefit of accused that the report at Ex.P.42 is not genuine.
9.24. It is the evidence of DW.7 M.Shylaja that during 2000-01 she has constructed house in site no.823 by spending Rs.7,50,000.00. According to her, for construction of said house she has received Rs.2,00,000.00 from her father by relinquishing her right over family property, Rs.2,00,000.00 from Rudraiah and Rs.4,00,000.00 from Chennappa as hand loan. So as to substantiate the same she has produced loan agreements as per Ex.D.3 & 9. Further, the said Rudraiah & Chennappa were examined as DW.2 & DW.3 respectively. Both of them have reiterated that they have lent hand loan of Rs.2,00,000.00 and /40/ Spl.CC.138/2009 Rs.4,00,000.00 each to Smt.Shylaja. Above all, borrowal of loan of Rs.2,00,000.00 and Rs.4,00,000.00 by Smt.Shylaja was declared by the accused in his Annual Property Returns as per Ex.P.6 at an disputed point of time.
9.25. According to the prosecution, the value of house built in site no.823 was Rs.10,10,000.00. Whereas it is the contention of the accused that the value of building was Rs.7,50,000.00. So far as documents relating to construction of house in a site no.823 is concerned, accused is the right person to produce the same. But he has not chosen to do so. It is argued on behalf of the accused that PW.8 has submitted report as per Ex.P.42 without the assistance of blue print, plan, structural design and measurement of the building. It is the definite evidence of DW.7 that she has constructed the building in site no.823 by spending Rs.7,50,000.00. When this is the evidence of DW.7, it is for her to produce relevant documents like blue print, plan, structural design and measurement of the building to show that the cost of construction of building is only Rs.7,50,000.00. But she has not chosen to do so. Therefore, it is for the accused to explain as to why he has withheld best piece of evidence, but no such explanation is forthcoming from his side.
9.26. In a criminal case no doubt it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. But under the provisions of PC Act, it is for the accused to offer explanation to the /41/ Spl.CC.138/2009 satisfaction of this court. In so far present case is concerned, the accused has withheld the best piece of documents. Further, even according to DW.7 she has spent Rs.2,00,000.00+Rs.2,00,000.00+Rs.4,00,000.00 amounting to Rs.8,00,000.00. Therefore, there is no meaning in she contending that she has spent only Rs.7,50,000/- to put up construction in site No.823.
9.27. In fact the learned counsel for the accused has placed reliance on the decision of the Hon'ble Sikkim High Court in the case between Dhan Subba Vs. State of Sikkim and argued that the valuation of the building as per Ex.P.42 is unreliable as admittedly the blue print plans were not seized and applied for the valuation and many of the items were assessed based on assumption and which is impermissible in fixing criminal liability against the accused. In fact the suggestion that PW.8 has valued the building merely on assumption is denied by him. When accused himself contends that his wife has spent Rs.7,50,000.00 for the purpose of putting up construction in site no.823, it is for him to produce relevant documents. But, for the reasons best known to him he has not produced the same. The said act of the accused is contrary to the provisions of section 106 of Evidence Act. Hence, this court is of the opinion that the contention taken by the accused that his wife has spent only Rs.7,50,000.00 for putting up construction in site no.823 is not probable to accept. Accordingly, not accepted.
/42/ Spl.CC.138/2009 9.28. Thus, for the discussions made herein above this court is of the opinion that the Report of PW.8 as per Ex.P.42 is worthy to accept. This observation is made because PW.8 stood well in the test of cross- examination as nothing worthwhile is elicited from his mouth to disbelieve or to discard his testimony. Further, the evidence of DW.7 would show that she has invested Rs.8,00,000.00 for putting up construction in site no.823. This amount is nearing to the cost of construction shown in Ex.P.42. Further, the accused did not produce material documents to show the actual cost of construction. In the view of the same, this court is of the opinion that minor discrepancies pointed out by the learned counsel for the accused that SOR and calculation sheet is not annexed to Ex.P.42 report is not fatal to the case of prosecution. Under the circumstances, it is just and proper to accept the report as per Ex.P.42.
9.29. Hence, by producing above referred evidences, the prosecution has discharged its burden to prove that the cost of construction was Rs.10,10,000/-. Now, onus shifts on the accused to prove and substantiate his version. Even though the accused claimed that the cost of construction was Rs.7,50,000/-, absolutely no evidence is let in to prove this except interested testimony of himself as DW.8 and the evidence of his wife as DW.7. In fact, accused is the best person to produce documents relating to the actual cost of construction incurred for construction of house because it is he who has constructed the house and /43/ Spl.CC.138/2009 paid money. Merely disputing cost of construction shown by the prosecution is not suffice. When prosecution has produced sufficient evidence to show that cost of construction was Rs.10,10,000/-, based only on the oral say of DW.7 & 8 it cannot be said that the accused has discharged his burden to show that actual cost of construction was only Rs.7,50,000/-.
9.30. Resultantly, it is held that the value of building found in site no.823 was Rs.10,10,000.00. The learned counsel for the accused would submit that while considering the value of building the court has to deduct 10% of contractor's profit, 10% of overhead charges, 10% of water line and watering charges. But such suggestions are not directed to PW.8 at the time of his cross-examination. It is relevant to note that accused being DW.8 has deposed that the construction was supervised by his wife and brother. This evidence of DW.8 is not denied by the prosecution. Under the circumstances, in order to meet the ends of justice, it would be proper to reduce overall cost of construction by 10% of the total cost of construction i.e., Rs.10,10,000.00. Therefore, by reducing total cost of construction of 10%, the cost of construction of the building effected by the wife of accused is determined at Rs.9,09,000.00.
9.31. The IO has taken into consideration asset value of site no.549 of Anjanpura while assessing the assets of the accused. According to prosecution the accused purchased said site on 03.01.2004 for a sum of /44/ Spl.CC.138/2009 Rs.1,71,720.00. The purchase of this property by the accused on 03.01.2004 for a sum of Rs.1,71,720.00 is not denied by him. However, the prosecution to substantiate its contention has produced covering letter of Additional District Registrar of Bengaluru Urban District along with certified copy of Sale Deed dated 03.01.2004 as per Ex.P.11. In the present case accused in his evidence as DW.8 has not denied the acquisition of site no.549 of Anjanapura for a sum of Rs.1,71,720.00. Hence, the value of site no.549 i.e., Rs.1,71,720.00 shall have to be considered as the asset value. Accordingly, the same is considered as an asset of accused.
9.32. It is the contention of the prosecution that accused has purchased sy.no.188 measuring 1 acre 18 guntas and Sy.no.254/1A measuring 2 acres 29 guntas of Mugalur Village, Turvekere Taluk, Tumkur District. To substantiate the contention of prosecution, it has produced certified copy of Sale Deed dated 22.12.2004 as per Ex.P.12. The reading of this document would reveal the fact that H.Thimmegowda has purchased Sy.no.188 measuring 1 acre 18 ¼ guntas of land of Mugalur Village for a sum of Rs.35,000.00. Similarly, the reading of certified copy of Sale Deed dated 28.04.2005 would demonstrately establish that accused H.Thimmegowda purchased sy.no.254/1A measuring 2 acres 29 guntas for a sum of Rs.1,02,000.00.
/45/ Spl.CC.138/2009 9.33. Admittedly, Ex.P.12 covering letter is annexed with certified copies of Sale Deeds dated 22.12.2004 and 28.04.2005. The genuineness or otherwise of the same is not denied or disputed by the accused. Thus, the prosecution has proved that the accused has spent Rs.35,000.00 and Rs.1,02,000.00 for the purchase of agricultural properties bearing sy.no.188 and 254/1A. Hence, sale consideration paid to the sellers in respect of sy.no.188 and sy.no.254/1A i.e., Rs.35,000.00 and Rs.1,02,000.00 shall have to be considered as asset value of the accused. Therefore, the same are considered as assets of the accused and its value is fixed at Rs.1,37,000.00.
9.34. The IO has taken into consideration cash balance of Rs.69,713.00 found in SB Account No.000005887 of Canara Bank, Mahalakshmi Layout Branch, Bengaluru. He has collected account extract as per Ex.P.13. The reading of this document would show that Account No.000005887 of Canara Bank, Mahalakshmi Layout Branch, Bengaluru is stands in the name of accused. As per Ex.P.13 as on 02.06.2006 the outstanding balance was Rs.69,713.00. Therefore, IO is justified in considering a sum of Rs.69,713.00 towards the head of assets of the accused. Hence, the same is considered as an asset of the accused.
9.35. The IO has taken into consideration cash balance of Rs.12,918.00 found in SB Account No.000022673 of Canara Bank, Mahalakshmi Layout Branch, Bengaluru. He has collected account /46/ Spl.CC.138/2009 extract as per Ex.P.13. The reading of this document would show that Account No.000022673 of Canara Bank, Mahalakshmi Layout Branch, Bengaluru is stands in the name of the wife of accused by name Shylaja. As per Ex.P.13 as on 22.03.2006 the outstanding balance was Rs.12,918.00. Therefore, the IO is justified in considering a sum of Rs.12,918.00 towards the head of assets of the accused. Hence, it is considered as an asset of the accused.
9.36. The IO has taken into consideration cash balance of Rs.6,032.00 found in SB Account No.1122500100572701 of Karnataka Bank, Mahalakshmipura Branch, Bengaluru. He has collected account extract as per Ex.P.14. The reading of this document would show that Account No. 1122500100572701 of Karnataka Bank, Mahalakshmipura Branch, Bengaluru is stands in the name of son of accused by name T.Kiran. As per Ex.P.14 as on 15.03.2006 the outstanding balance was Rs.6,032.00. Therefore, the IO is justified in considering a sum of Rs.6,032.00 towards the head of assets of the accused. Hence, the same is considered as an asset of the accused.
9.37. The IO has taken into consideration cash balance of Rs.29,158.00 found in account no.6400070601-9 of State Bank of Mysuru, Chamarajanagar Branch, Chamarajanagar. The reading of Ex.P.16 letter dated 19.03.2008 would show that the IO has requested the Manager to furnish particulars. However, the endorsement made in the /47/ Spl.CC.138/2009 letter would show that the said account is already transferred to Mahalakshmi Layout Branch, Bengaluru. No explanation is forthcoming from the side of PW.2 based on which document he came to the conclusion that a sum of Rs.29,158.00 was found in account no.6400070601-9 of State Bank of Mysuru, Chamarajanagar Branch, Chamarajanagar is the asset of the accused. Therefore, said sum of Rs.29,158.00 cannot be considered as the asset of the accused. Accordingly, not considered as an asset of the accused.
9.38. It is the contention of the prosecution that during his tenure as a public servant accused has invested Rs.72,500.00 in National Saving Certificate. The fact that at the time of raid, the IO has seized National Savings Certificate worth Rs.52,500.00 is not denied by the accused. In fact it is borne out from the investigation materials that as per Annexure- 15A accused has disclosed the investment of Rs.72,500.00 in National Saving Certificate. Hence, this sum shall have to be considered as the asset of the accused. Accordingly, considered.
9.39. According to prosecution the accused has invested Rs.30,000.00 in ICICI Bank Bonds. In order to substantiate the same, the IO has secured letter from ICICI Bank dated 07.04.2008 and Annexure as per Ex.P.17. The reading of this document would show that accused Thimmegowda has purchased 6 bonds with maturity value of Rs.5,000.00 each. It is also mentioned in the annexure that against the /48/ Spl.CC.138/2009 allotment of bond, Thimmegowda paid Rs.30,000.00 through cheque no.992724 dated 30.03.2005 drawn on Canara Bank, Mahalakshmi Layout. Therefore, a sum of Rs.30,000.00 invested in ICICI Bank Bonds shall have to be considered as an asset of the accused. Hence, it is considered as an asset of the accused.
9.40. It is the contention of the prosecution that accused has invested Rs.26,500.00 in IDBI Deepa Discount Bond. To substantiate the same, it has produced annexure of flexi bonds details as per Ex.P.18. This document would reveal that accused Thimmegowda being the guardian of Kiran by showing Shylaja as nominee purchased 3 bonds for a total sum of Rs.26,500.00. However, this document would show that Rs.10,600.00 has been refunded through Refund Order no.627139. Therefore, the IO is justified in considering a sum of Rs.15,900.00 as the asset of the accused. Hence, the same is considered as an asset of the accused.
9.41. It is the contention of the prosecution that the accused has deposited Rs.4,37,058.00 in Canara Bank, Mahalakshmi Layout. The prosecution has secured Ex.P.20 letter of Canara Bank annexed with the copy of deposit receipts bearing no. DR No.MAKD060000881 for Rs.3,02,982.00 in the name of accused. Similarly, DR no.MAKD060000880 for Rs.1,00,000.00 & DR no.MAKD060000883 for Rs.34,076.00 stands in the name of accused. Thus, it is clear that /49/ Spl.CC.138/2009 accused has deposited total sum of Rs.4,37,058.00 in his name. Therefore, the IO is justified in considering a sum of Rs.4,37,058.00 as the asset value of the accused. Hence, the same is considered as an asset of the accused.
9.42. It is the contention of the prosecution that the accused deposited Rs.2,62,138.00 in Canara Bank, Mahalakshmi Layout. The prosecution has secured Ex.P.20 letter of Canara Bank annexed with copies of deposit receipts bearing no. DR no.MAKD060000877 for Rs.2,00,000.00 and DR no.MAKD060000885 for Rs.62,138.00 standing in the name of wife of accused. Thus, it is clear that accused has deposited total sum of Rs.2,62,138.00 in the name of his wife. Hence, it is considered as an asset of accused.
9.43. It is the contention of the prosecution that the accused deposited Rs.84,847.00 in Canara Bank, Mahalakshmi Layout. It has secured Ex.P.20 letter of Canara Bank annexed with the copy of deposit receipts no.DR No.MAKD060000882 for Rs.84,847 which stands in name of T.Kiran. To show that said Kiran had independent income, accused has not produced any evidence. Hence, only conclusion that can be arrived is that it is the accused and accused alone deposited the same. Thus, it is proved that accused has deposited a sum of Rs.84,847.00 in the name of his son T.Kiran. Therefore, the IO is justified in considering /50/ Spl.CC.138/2009 a sum of Rs.84,847.00 as asset value of the accused. Hence, it is considered as an asset of accused.
9.44. It is the contention of the prosecution that the accused deposited Rs.84,847.00 in Canara Bank, Mahalakshmi Layout in the name of his son T.Goutham. In fact to substantiate the same, it has produced Ex.P.20 letter of Canara Bank annexed with the copy of deposit receipts. The deposit receipt no.DR No.MAKD060000884 is for Rs.84,847. Thus, it is clear that accused has deposited a sum of Rs.84,847.00 in the name of his son T.Goutham. Therefore, the IO is justified in considering a sum of Rs.84,847.00 as asset value of the accused. Hence, it is considered as an asset of the accused.
9.45. The IO has taken into consideration a sum of Rs.10,000.00 which the accused invested in 2 bonds of Krishna Bhagyajala Nigama Ltd., in the name of T.Kiran. To substantiate the same, PW.2 being the IO, has obtained a letter from the Executive Director (Finance), Krishna Bhagyajala Nigama Ltd., as per Ex.P.19. This letter would show that on 17.06.1996, accused has purchased 2 bonds of Rs.5,000.00 each in the name of his son T.Kiran. Therefore, the IO is justified in considering a sum of Rs.10,000.00 as asset value of the accused. Hence, it is considered as an asset of the accused.
/51/ Spl.CC.138/2009 9.46. The IO has taken into consideration a sum of Rs.60,000.00 deposited by the accused in PPF account no.7251. This investment is not denied by the accused. Therefore, the IO is justified in considering a sum of Rs.60,000.00 as asset value of the accused. Hence, it is considered as an asset of the accused.
9.47. The IO has considered a sum of Rs.2,10,000.00 which Smt.M.Shylaja invested in PPF account no.7250. This amount is declared by the accused in his Annexure-16A. The final report of the IO would show that this investment was made by Smt.M.Shylaja out of her earnings from tailoring and rental income. In fact the accused has admitted that a sum of Rs.2,10,00.00 is available in PPF account of his wife Shylaja. Therefore, PPF amount of Rs.2,10,000.00 is considered as asset value of the accused.
9.48. It is the contention of the prosecution that in respect of house no.5, a sum of Rs.500.00 was deposited at BWSSB towards water connection charges, in respect of said house, while securing electricity connection, a sum of Rs.1,000.00 was deposited at BESCOM. Similarly, it is contended by the prosecution that in respect of house no.823 while securing electricity connection, a sum of Rs.10,909.00 was deposited to BESCOM. To substantiate these deposits, the prosecution has placed reliance on Ex.P.21, 22, and 29. The deposits so referred to above is not at all challenged by the accused. Therefore, the IO is justified in /52/ Spl.CC.138/2009 considering a sum of Rs.500.00, Rs.1,000.00 and Rs.10,909.00 as the asset of the accused. Hence, these deposits are considered as an asset of the accused.
9.49. The IO has considered a sum of Rs.950.00 as an asset of the accused relating to deposit made at the time of securing HP gas connection from Avinash Agency. To substantiate this fact, the IO has secured letter from HP Gas-Avinash Agency dated 04.04.2008 as per Ex.P.23. As per this letter, Thimmegowda deposited refundable amount of Rs.950.00. This deposit is not denied by the accused either at the time of cross-examination of PW.2 or at the time of his evidence as DW.8. Therefore, the IO is justified in considering a sum of Rs.950.00 as the asset of accused. Hence, it is considered as an asset of the accused.
9.50. The IO has considered a sum of Rs.1,000.00 as an asset of the accused relating to deposit amount paid to BSNL at the time of securing landline telephone number 23498963 to his house. To substantiate this fact, the IO has secured a letter of BSNL along with annexures as per Ex.P.24. As per this document accused Thimmegowda deposited a sum of Rs.1,000.00 on 07.07.1989. This deposit is not denied by the accused either at the time of cross-examination of PW.2 or at the time of his evidence as DW.8. Therefore, IO is justified in considering a sum of Rs.1,000.00 as the asset of accused.
/53/ Spl.CC.138/2009 9.51. The IO has taken into consideration the value of Hero Honda Splendor motor cycle bearing registration no.KA02 EE 4860. According to prosecution accused has paid a sum of Rs.43,140.00 at the time of purchase of vehicle from Max Motors, Rajakumar Road, Rajajinagar, Bengaluru. In order to substantiate the same, it has not only secured B Extract of the vehicle but also copy of invoice dated 14.02.2002. It is pertinent to note that accused has not denied the purchase and the purchase value of this vehicle. Even otherwise the prosecution by producing Ex.P.25 letter of RTO and its annexures proved to the satisfaction of this court that it is the accused who has purchased Hero Honda Splendor bearing registration no.KA02 EE 4860 for a sum of Rs.43,140.00. Hence, the IO is justified in considering a sum of Rs.43,140.00 as asset of the accused.
9.52. The IO has considered a sum of Rs.1,79,800.00 as an asset of the accused. It is pertinent to mention that at the earliest point of time, the IO through Ex.P.1 search mahazar has seized a sum of Rs.1,79,800.00 from the house no.823 of the accused. He has reported that seizure to the Court. The panchas to Ex.P.1 Mahazar have also reiterated that the IO has seized Rs.1,79,800.00 from the house of accused. The accused has not denied the said seizure. Therefore, seizure of Rs.1,79,800.00 is stands proved.
/54/ Spl.CC.138/2009 9.53. It is the contention of the accused that in the month of April, May and June i.e., prior to the date of raid, he has sold 254 grams of gold and 700 grams of silver articles to Ganesh Jewellars and kept the amount so received by sale of gold and silver articles and rental advance received in respect of house no.5, in house no.823. Thus, the accused has admitted the seizure of Rs.1,79,800.00. Therefore, it is for the accused to show the source and substantiate the stand taken by him.
9.54. It is the evidence of DW.7 Smt.Shylaja that tenant in respect of house no.5 by name Renukaprasad given an advance of Rs.1,00,000.00 and she has returned the same on 05.07.2006. However, she has not stated that the advance so received by her in respect of house no.5 was kept in house no.823. The accused being DW.8 has not stated that rent advance received in respect of house no.5 was kept in house no.823. Therefore, the above narrated fact is not proved by the accused to the satisfaction of this court.
9.55. It is the contention of the accused that he has sold 254 grams of gold and 700 grams of silver articles to Ganesh Jewellars and the amount so received was kept in house no.823 and the same was seized by the IO. However, accused being DW.8 did not say exact amount received by him by sale of gold and silver articles. Hence, the evidence of DW.8 is not helpful to substantiate his contention that he has received certain amount by sale of gold and silver articles.
/55/ Spl.CC.138/2009 9.56. It is relevant to refer the evidence of DW.6 Vimal Kumar Jain. He being proprietor of Sri.Ganesh Diamonds deposed that during 2006 the accused along with his wife has sold old jewellary to him on several dates. According to him Ex.D.12 to 22 are the receipts issued by him at the time of purchase of jewellary from the accused. In fact Ex.D.12 is Purchase Bill no.10 dated 28.04.2006 issued to H.Thimmegowda. Ex.D.13 is Purchase Bill No.004 dated 12.04.2006 issued to H.Thimmegowda. Ex.D.14 is Purchase Bill No.001 dated 05.04.2006 issued to Shylaja. Ex.D.15 is Purchase Bill No.007 dated 18.04.2006 issued to Shylaja. Ex.D.16 is Purchase Bill No.014 dated 10.05.2006 issued to Shylaja. Ex.D.17 is Purchase Bill No.011 dated 02.05.2006 issued to Shylaja. Ex.D.18 is Purchase Bill No.020 dated 24.05.2006 issued to Shylaja. Ex.D.19 is Purchase Bill No.015 dated 12.05.2006 issued to Shylaja. Ex.D.20 is Purchase Bill No.024 dated 02.06.2006 issued to Shylaja. Ex.D.21 is Purchase Bill No.022 dated 27.05.2006 issued to Shylaja and Ex.D.22 is Purchase Bill No.025 dated 05.06.2006 issued to Shylaja. From the reading of bill numbers so referred to above, it is clear that same is not in a chronological order. If really, Ex.D.12 to 22 are genuine receipts its numbers should be in a chronological order corresponding to its date of issuance. In order to have a counter check of Ex.D.12 to 22, DW.6 did not produce any cash book or counter foils of Ex.D12 to 22. The DW.6 during the course of his cross-examination has admitted that the purchase bill book maintained in his business has got serial bill numbers. But the bill numbers referred to /56/ Spl.CC.138/2009 above as Ex.D.12 to 22 does not disclose serial numbers. Therefore, much credence cannot be attached to Ex.D.12 to 22. Further more the accused did not disclose the receipt of amounts mentioned in Ex.D.12 to 22 in his Annual Property Returns for the year 2006-07. Thus, this court is of the opinion that Ex.D.12 to 22 is the invention made by the accused so as to make this court to believe that he has received amount by sale of gold and silver articles. Hence, at any stretch of imagination the explanation offered by the accused that a sum of Rs.1,79,800.00 found in his house was the amount received by him by the sale of gold and silver articles is not worthy to accept. Therefore, the explanation offered by the accused is not satisfactory. Under the circumstances, it is held that the IO is justified in considering a sum of Rs.1,79,800.00 as asset of the accused. Hence, the same is considered as an asset of accused.
9.57. The IO has considered a sum of Rs.15,120.00 as the value of gold ornaments found in the house of accused at the time of raid. It is relevant to mention that the genuineness or otherwise of the mahazar as per Ex.P.1 is not denied by the accused. The reading of Ex.P.1 would demonstrately indicate that 156.5 grams of gold ornaments found in the house of accused. At the time of raid 1 gram of gold was valued at Rs.825.00. Therefore, the total value of the gold found in the house of the accused comes to Rs.1,29,112.50.
/57/ Spl.CC.138/2009 9.58. It is relevant to mention that accused has contended that in the year 2006 he has sold 254 grams of gold worth Rs.1,90,947.00. But it is relevant to mention that this court has already observed that Ex.D.12 to 22 receipts are manufactured by the accused to escape from the clutches of law. Therefore, it is highly improbable to believe the version of accused that he has sold 254 grams of gold worth Rs.1,90,947.00.
9.59. It is pertinent to note that in the year 1991 accused has declared 296 grams of gold, in the year 1994, 55 grams of gold and in the year 2000-01, 50 grams of gold. The statement of Marigangaiah and M.Shylaja would show that at the time of marriage, Shylaja was given with 300 grams of gold ornaments and 1 kg of silver articles. It is relevant to mention that the IO has considered only 31.51 grams of gold for the purpose of his calculation of assets of accused. Hence, on considering the evidence placed on record, this court is of the opinion that the IO is justified in considering value of the gold to the tune of Rs.15,120.00 as the asset of the accused.
9.60. As per Ex.P.1 search and seizure mahazar, the raid team found total 1330 grams of silver articles in house no.823. According to Shylaja at the time of her marriage and house opening ceremony they have received 500 grams of silver articles as gift. The IO has deducted 500 grams and considered only 830 grams of silver articles for the purpose of assessing the asset of the accused at Rs.8 per gram. Therefore, /58/ Spl.CC.138/2009 IO is justified in considering a sum of Rs.6,640.00 as the asset of the accused. Hence, it is considered as an asset of the accused.
9.61. The IO at the time of raid has considered the value of household articles found in the house of accused and valued the same at Rs.4,43,335.00. Though PW.2 is subjected to cross-examination nothing is suggested to him to the effect that the valuation of household articles is not correct. The IO has given 10% of depreciation while considering the value of household articles found in the house of accused. It is not the contention of the accused that the valuation made by the IO is not at all correct. The reading of mahazar as per Ex.P.1 would show that reasonable price was fixed to the household articles by the panchas to mahazar. Therefore, at any stretch of imagination it cannot be said that the price fixed by the IO is exorbitant.
9.62. Further it is argued that fixation of value of household articles is not proper. In order to accept this contention of the accused it is for him to produce material documents like purchase bills or invoices etc.,. But he has not chosen to produce such documents for judicial scrutiny. The accused has failed to give any explanation as provided under section 106 of Evidence Act.
9.63. On careful perusal of mahazar and value assessed by Investigating Agency for each of the articles, it is clear that there are no /59/ Spl.CC.138/2009 reasons to say that the I.O. has quoted excess rate for any of the articles. No evidence is produced by the accused to show that for any of the articles excess rates have been shown than the actuals. The rates assessed by IO for those articles were not found to be unscientific or unreasonable. Further, when articles were found in the house of the accused, presumption is that he has purchased the same. But, for the reasons best known to him, he did not produce any documentary evidence to show that the value assessed by the prosecution is excess. Under the circumstances, for the reasons stated herein above, this court is of the opinion that the conclusion arrived by the IO with regard to value of household articles is proper. Hence, it is held that IO is justified in considering a sum of Rs.3,99,002.00 as the asset of the accused. Hence, it is considered as an asset of the accused.
9.64. Hence, for the foregoing reasons and discussions, this court is of the opinion that the prosecution has proved that the following are the total assets acquired by the accused during the check period:-
Sl.No. Assets Value
(in Rs.)
1 The value of site and house built in site no.5, 12th 3,35,000.00
Cross, Bhovi Palya in the name of accused
2 The value of site and house no.823, 13th Cross, 9,09,000.00
Mahalakshmi layout, Bengaluru in the name of Smt.Shylaja, wife of accused /60/ Spl.CC.138/2009 3 The purchase value of BDA Site at Anjanapura, 1,71,720.00 Bengaluru in the name of accused 4 The purchase value of 4 Acres of Agricultural 1,37,000.00 land at Mugaluru Grama, Turuvekere Taluk, Tumkur District in the name of accused 5 The amount found in SB Account 69,713.00 No.M.A.S.B.000005887 at Canara Bank, Mahalakshmi Layout Branch, Bengaluru in the name of accused 6 The amount found in SB Account 12,918.00 No.M.A.S.B.000022673 at Canara Bank, Mahalakshmi Layout Branch, Bengaluru in the name of wife of accused 7 The amount found in SB Account 6,032.00 No.1122500100572701 at Karnataka Bank Ltd., Mahalakshmipuram, Bengaluru in the name of Kiran, son of accused 8 The amount found in State Bank of Mysore, -
Chamarajanagar in Account No.6400070601-9 9 The amount invested on NSC by accused 72,500.00 10 The amount invested on ICICI Bonds 30,000.00 11 The amount invested on IDBI Deepa Discount 15,900.00 Bond 12 FD in Canara Bank in the name of accused 4,37,058.00 13 FD in Canara Bank in the name of Smt.Shylaja, 2,62,138.00 wife of the accused 14 FD in Canara Bank in the name of Kiran, son of 84,847.00 the accused 15 FD in Canara Bank in the name of T.Goutham, 84,847.00 son of accused 16 FD in Krishna Jala Nigama in the name of Kiran, 10,000.00 /61/ Spl.CC.138/2009 son of accused 17 The amount deposited in PPF Account in the 60,000.00 name of accused 18 The amount deposited in PPF Account in the 2,10,000.00 name of wife of accused 19 The deposit made for water connection at house 500.00 No.5, 12th Cross, Bhovipalya, Mahalakshmipuram, Bengaluru.
20 The deposit made in respect of electricity 1000.00 connection No.5, 12th Cross, Bhovipalya, Mahalakshmipuram, Bengaluru 21 The deposit made for electricity connection at 10,909.00 house No.823, 13th Cross, 3rd Main Road, Mahalakshmi Layout, Bengaluru.
22 The deposit towards Gas Connection bearing 950.00 No.891796 to the house of accused 23 The deposit towards telephone land line 1000.00 No.23498963 to the house of accused 24 The value of Hero Honda Splendor Plus bike 43,140.00 bearing registration No.KA02 EE 4860 25 The cash found in the house of the accused at the 1,79,800.00 time of raid 26 The value of Gold ornaments 15,120.00 27 The value of silver articles 6,640.00 28 The value of household articles 3,99,002.00 Total value 35,66,734.00 /62/ Spl.CC.138/2009
10. The Expenditures of accused:
The IO has taken into consideration the following expenditures of the accused for the check period commencing from September 1984 to 23.06.2006.
Sl.No. Expenditure Amount
(in Rs.)
1 The expenditure towards domestic expenses of 3,47,866.00
the family of the accused
2 The expenditure towards registration fee & 2,610.00
stamp duty at Bhovipalya site
3 The expenditure towards property tax to the 6,644.00
house at No.5, 12th Cross, Bhovipalya,
Mahalakshmi Layout, Bengaluru
4 The expenditure towards registration and stamp 75,660.00
duty at the time of purchase of to the house at
No.823, 13th Cross, Mahalakshmi Layout,
Bengaluru in the name of the wife of accused.
5 The expenditure towards sketch and property 30,691.00
tax to the house at No.826, 13th Cross,
Mahalakshmi Layout, Bengaluru in the name
of the wife of accused.
6 The expenditure towards registration fee and 16,880.00
stamp duty to BDA site at Anjanapura
7 The expenditure towards registration fee and 14,290.00
stamp duty to agricultural land at Sy.No.188, and 254/A /63/ Spl.CC.138/2009 8 The expenditure towards payment of land -
revenue in respect of sy.no.188 & 254/1.
9 The expenditure towards agriculture at 1,95,293.00 Sy.No.188, and 254/A 10 The expenditure towards payment of house rent 10,240.00 11 The expenditure towards payment of water and 21,876.00 electricity bill in respect of house No.5, 12th Cross, Bhovipalya, Mahalakshmi Layout, Bengaluru 12 The expenditure towards payment of water bill 13,676.00 in respect of house No.823, 13th Cross, Mahalakshmi Layout, Bengaluru.
13 The expenditure towards payment of electricity 21,090.00 bill in respect of house No.823, 13 th Cross, Mahalakshmi Layout, Bengaluru.
14 The expenditure towards gas consumption vide 19,500.00 consumer No.612644 15 The expenses towards landline telephone 53,404.00 16 The payment towards LIC Policy premium 40,000.00 17 The expenditure towards maintenance charges of Baja Chetak Bike 14,032.00 18 The expenditure towards Hero Honda Splendor bike maintenance charges vide bearing 12,571.00 No.KA02 EE 4860 19 The expenditure towards education to T.Kiran, son of the accused 70,500.00 20 The expenditure towards education to 54,740.00 T.Goutham, son of the accused 21 The expenditure towards house opening 5,000.00 ceremony function to the house at house No.823 /64/ Spl.CC.138/2009 22 The payment of Income tax by the wife of the 6,044.00 accused Total Expenditure 10,32,607.00 10.1. According to the prosecution during the check period accused has incurred domestic expenditure of Rs.3,47,866.00. However, accused being DW.8 in his examination in chief at para no.31 has contended that during the check period he has incurred domestic expenses of Rs.1,50,000.00.
10.2. So as to substantiate its contention, the prosecution has examined Jayadeva Prakash, retired Joint Director, Statistics, Lokayukta as PW.5. According to him, based on the request of S.P. Lokayukta, and input form made available by the IO along with Pay Commission Report of 1985, National Sample Survey 1987-88 and Year-wise State Consumer Price Index for Karnataka, he estimated the probable food expenditure of the accused and his family members from 08.11.1983 to 24.06.2006. It is his evidence that after estimation of probable food expenditure he has submitted Report as per Ex.P.26. In fact PW.5 in his cross-examination has fairly deposed that if food products are procured from agriculture, accused is entitled for proportionate deduction.
10.3. It is the evidence of DW.8 that he do possess 5 acres 21 ¾ guntas land in Mugalur Village of Turvekere Taluk and he used to receive /65/ Spl.CC.138/2009 agricultural products. This fact finds place in his APRs. According to him during the check period domestic expenses of his family was about Rs.1,50,000.00. Further, he has contended that his brother was also staying with him and was also looking after the domestic expenses. This contention is without any substance. However, from the evidence of DW.8 it is clear that accused has taken a contention that the prosecution has shown expenses exorbitantly without enquiring him or his family members.
10.4. PW.5 has deposed that the figures shown in his report is estimated figures nearing actuals, however it is subject to marginal errors.
This evidence of PW.5 would show that he has deposed truth before the court. However, nothing is suggested to PW.5 that only to falsely implicate the accused, at the instance of Lokayukta police he has issued Ex.P.26 Report.
10.5. Admittedly, PW.5 Jayadeva Prakash is a responsible Government Officer. Therefore, his Report at Ex.P.26 cannot be brushed aside without consideration. Further, the same is attached with presumption contemplated under section 114(e) of Evidence Act. The reading of Report at Ex.P.26 would show that the same is annexed with final statement showing year-wise expenditure on food items, work sheet for the estimation of family food expenditure, statement showing percentage share of food items and statement to total expenditure.
/66/ Spl.CC.138/2009 However, for the reasons best known to IO, he did not produce those annexures along with Ex.P.26.
10.6. The IO has considered the domestic expenditure of the accused from 08.11.1983 to 23.06.2006 i.e., approximately for 23 years. It is the evidence of accused / DW.8 that he has incurred domestic expenditure of Rs.1,50,000.00. However, his interested testimony is not substantiated by any other piece of evidence. Therefore, the contention of the accused is not worthy to accept. No doubt in a criminal case it is for the prosecution to prove its case beyond reasonable doubt. But in so far as disproportionate assets case is concerned, it is for the accused to explain his family expenditure to the satisfaction of this court. But the evidence of DW.8 does not inspire confidence of the court that he has placed true figures for its appreciation.
10.7 Further, it is relevant to appreciate that the expenditure of the family always depends upon the number of persons in the family, the way of they leading the life and standard of living and cost of living. In the instant case, by considering the same PW.5 has estimated domestic expenditure at Rs.3,47,866/- and submitted Ex.P-26 report.
10.8. Admittedly, the family of the accused consists of himself, his wife and two sons. So, his family consists of four members. The Investigating Officer has considered check period as September 1984 to /67/ Spl.CC.138/2009 June 2006, which consists of 262 months. At the rate of Rs.3,47,866/- for the check period and for 262 months, per months domestic expenditure would be Rs1,327/-. It is made clear that out of check period, majority of the period accused was residing outside Bangalore. Therefore, any person consisting of family of four persons require more than Rs.1,327/- per month to maintain the family and to meet the domestic expenditure. Therefore, one cannot say that the domestic expenditure shown as Rs.3,47,866/- for a period of 262 months is unscientific, unreasonable or irrational. Therefore, the I.O. has rightly considered Ex.P-26 report to hold that the domestic expenditure of the accused was Rs.3,47,866/-.
10.9. Further, as has been contended by the accused, he has declared in his APR that he used to receive food products from his agricultural properties.The accused might have received food items from his agricultural lands. Even if he has received, then also he would have required more than Rs.1,327/- per month towards domestic expenditure. Hence, at any stretch of imagination it cannot be said that the report at Ex.P-26 is outcome of imagination. On the contrary, the same is worthy to accept in view of the discussions made herein above.
10.10. The learned counsel for the accused placed reliance on the decision reported in 1996 (4) Crimes 1 in the case between Gunjit Singh Vs.State. In the said decision it is held that the cardinal principles /68/ Spl.CC.138/2009 of criminal jurisprudence are (i) the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from correctness or falsity of the defense version by proving its case, (ii) that in a criminal case accused must be presumed to be innocent unless proved guilty and, (iii) that the onus of the prosecution never shifts. But the fact remains that in the present case the offence alleged against the accused is punishable under section 13(1)(e) r/w section 13(2) of PC Act and hence it is for the accused to offer explanation to the satisfaction of the court.
10.11. The learned counsel for the accused has placed reliance on the decision reported in Crl.Appeal.No.1279/2017 decided on 09.08.2017 in the case between Vasanthrao Guhe Vs. State of Madhya Pradesh, LAWS (SC) 2013-5-67 in the case between Sujith Biswas Vs. State of Assam, 2010 (2) KCCR 1010 in the case between Babappa Vs. State by Lokayukta Police, 2013 Supreme (Karnataka) 642 in the case between Tirakappa Vs.State of Karnataka and the decision of the Hon'ble High Court of Kerala at Ernakulam in the case between Muralimohan Nayak Vs. V.S.Kurup in Crl.Appeal No.1225/2002 and argued that it is for the prosecution to prove the actual domestic expenditure of the accused and when the evidence given by the prosecution is not worthy to accept, the explanation given by the accused is to be accepted. While coming to just conclusion in the matter, this court has carefully followed the ratio of the above decisions.
/69/ Spl.CC.138/2009 10.12. In AIR 1964 SC 464 in the case between Sajjan Singh Vs. State of Punjab it is held that while calculating domestic expenditure, one third of the income of the accused is to be taken into consideration. It is settled proposition of law that one third of the income of the accused is to be taken into account for estimating household expenditure. This criteria of taking one third income as household expenditure has been consistently followed by the courts as well as investigation agencies. As discussed above, by virtue of the decision of the Apex Court in Sajjan Singh's case, there is no legal bar for adopting the principles laid down therein and to consider one third of the net income of the accused as household expenditure during the check period.
10.13. As per the say of prosecution the total income of the accused during the check period was Rs.35,58,283.00. One third of income comes to Rs.11,86,093.33. As per Ex.P.26 Report, the IO has considered domestic expenditure of accused during the check period at Rs.3,47,866.00. It is settled proposition of law that the particulars which are favorable to the accused is to be accepted while deciding a criminal case. One third of net income estimated by this court is Rs.11,86,093.33. Thus, this court is of the opinion that the expenditure contended by the prosecution to the tune of Rs.3,47,866.00 is genuine. Hence, the calculation of domestic expenditure by the prosecution based on Ex.P.26 is favorable and beneficial to the accused. Therefore, a sum of Rs.3,47,866.00 is estimated as domestic expenditure. Accordingly, it is /70/ Spl.CC.138/2009 held that the domestic expenditure of the accused during the check period was Rs.3,47,866.00.
10.14. The expenditure which the IO has taken into consideration was stamp and registration fee paid by the accused at the time of purchase of site no.5 of Bhovi Palya during 1984-85. The IO has not only secured certified copy of Sale Deed but also a letter from Sub-Registrar, Rajajinagar. As per this document accused has paid Rs.2,400.00 for purchase of stamp paper, Rs.200.00 towards registration fee, Rs.9.00 for copy fee and Rs.1.00 for miscellaneous expenses.
10.15. It is contended by the accused that the prosecution has not proved this fact. But, this contention of the accused is cannot be accepted because the prosecution has not only secured certified copy of sale deed dated 10.12.1984 but also a letter annexed to it. The facts and figures that are mentioned in Ex.P.8 corroborate with the facts and figures contended by the prosecution. It is not the evidence of DW.8 that he has not purchased stamp paper and not paid registration fee as contended by the prosecution. When the prosecution has placed definite figures based on the documents obtained from concerned Sub-Registrar, it is for the accused to prove the contrary. Such contrary evidence is not produced by the accused. Hence, it is held that only for the purpose of denying the fact alleged by the prosecution, the accused has denied the same. However, the evidence placed on record clearly corroborate with the contention of /71/ Spl.CC.138/2009 the prosecution. Even otherwise, from the above undisputed document it is clear that accused has paid a sum of Rs.2,610.00 towards stamp and registration fee at the time of registration of Sale Deed in respect of site no.5 of Bhovi Palya. Hence, a sum of Rs.2,610.00 is taken as an expenditure of the accused.
10.16. The next item of expenditure which the IO has taken into consideration is Rs.6,644.00 which is tax paid to BBMP in respect of property no.5 commencing from 1989 to the date of raid. The IO has collected a report from BBMP as per Ex.P.27. As per this report, khata of property no.104/21/8/5 stands in the name of Devaraju. However, the fact that it is the accused who has purchased this property in the year 1984 is not in dispute. The reading of this document would show that per year a sum of Rs.644.00 was remitted to BBMP. If this amount is calculated from 1984 to 2006 the total amount would be Rs.14,812.00. However, IO has considered only Rs.6,644.00. Hence, this consideration of the IO is favorable to the accused. The payment of tax in respect of site no.5 is not at all denied by the accused. Hence, IO is justified in considering a sum of Rs.6,644.00 towards the head of expenditure of the accused. Hence, the same is considered as the expenditure of the accused.
10.17. The IO has taken into consideration a sum of Rs.75,660.00 as expenditure of the accused incurred by him towards stamp duty and registration fee paid by him at the time of purchase of site no.823 of Mahalakshmi Layout during 1996-97. The IO has not only secured /72/ Spl.CC.138/2009 certified copy of Sale Deed but also a letter from Sub-Registrar, Rajajinagar, Bengaluru. As per this document the purchaser has paid a sum of Rs.65,200.00 for the purchase of stamp paper and Rs.10,420.00 towards registration fee and Rs.38.00 towards miscellaneous expenses. It is pertinent to note that this court has already held that it is Marigangaiah who has purchased the said site in the name of his daughter Smt.Shylaja. Therefore, only conclusion that can be arrived is that the above expenses were borne by Marigangaiah. Hence, Rs.75,660.00 cannot be termed as expenditure incurred by the accused. Accordingly, not considered.
10.18. Next item is the expenditure towards fee paid to obtain sketch and amount paid towards property tax in respect of house bearing no.823, 13th Cross, Mahalakshmi Layout, Bengaluru in the name of the wife of accused to the tune of Rs.30,691.00. However, there is no documentary evidence with regard to remittance of amount to BBMP to secure sketch. The reading of Ex.P.27 would show that every year i.e., for 2005-06, 2006-07, 2007-08 Smt.Shylaja remitted tax of Rs.5,065.00 per year. It is an admitted fact that property bearing no.823 is stands in the name of Smt.Shylaja which is within the territorial jurisdiction of BBMP. As per the sale deed as on the date of sale itself possession was delivered to Smt.Shylaja. If tax amount is calculated from 1997 to 2006 it comes to Rs.50,650.00. However, the IO has restricted the amount to the tune of Rs.30,691.00. Therefore, a sum of Rs.30,691.00 is considered as the expenditure of the accused.
/73/ Spl.CC.138/2009 10.19. According to IO, the accused has incurred Rs.14,900.00 towards registration of sale deed dated 3.1.2004. Similarly, it is the contention of the IO that for the registration of sale deed in respect of site no.594 of Anjanpura, the accused has paid miscellaneous fee of Rs.1,980.00. In fact, to substantiate this aspect of the matter, the IO has not only secured certified copy of Sale Deed dated 03.01.2004 but also a letter of Additional District Registrar, Bengaluru Urban dated 26.08.2008 as per Ex.P.11. As per this document accused has paid Rs.14,900.00 towards registration charges and miscellaneous fee of Rs.1,980.00. This document is not denied by the accused. Thus, from the above undisputed document it is proved that accused has paid a sum of Rs.16,880.00 at the time of registration of Sale Deed dated 03.01.2004. Hence, IO is justified in considering a sum of Rs.16,880.00 as expenditure of the accused.
10.20. The IO has contended that the accused has spent Rs.14,290.00 towards registration fee and stamp duty at the time of purchase of agricultural lands bearing sy.no.188 and 254/A. This expenditure is admitted by the accused. Hence, IO is justified in considering a sum of Rs.14,290.00 as expenditure of the accused. Accordingly, the same is considered as expenditure of the accused incurred by him during the check period.
/74/ Spl.CC.138/2009 10.21. According to IO, the accused has paid land revenue to the government in respect of sy.no.188 and 254/A measuring 1 acre 14 guntas and 2 acres 29 guntas respectively. However, IO did not collect any document from the revenue authority. Therefore, without any documentary evidence, it is not possible to arrive at a conclusion as to how much amount was paid by the accused to the government as land revenue.
10.22. According to IO, for agricultural operations in sy.no.188, and 254/A, the accused has spent is Rs.1,95,293.00. In order to substantiate the same the prosecution has placed reliance on the evidence of PW.10 and 11 and Ex.P.36. It is the evidence of PW.10 Rajappa, Senior Assistant Director of Agriculture, Kadur that he assessed the income of accused from garden land from the year 1982 to 1996 situated at Mugalur Village of Turuvekere Taluk. According to him, after assessment, he has given his report as per Ex.P.36. However, the reading of Ex.P36 would show that this witness did not mention the extent of lands in each survey numbers. According to him he has not inspected the lands in sy.no.188 and 254/A. However, suggestion that he has issued Ex.P.36 on the instructions of the IO is denied.
10.23. One K.Gopya Nayak, Retired Assistant Director of Agriculture, Tumkur being PW.11 has deposed that based on the request of Police Inspector, Lokayukta, he assessed the income from agricultural /75/ Spl.CC.138/2009 lands and issued Ex.P.36. His evidence is in accordance with the contents of Ex.P.36 Report. The contention of the accused that PW.11 has issued Ex.P.36 without inspecting the property situated at Mugalur Village of Turuvekere Taluk is denied.
10.24. The reading of Ex.P.36a Report of PW.10 would show that for cultivation, the accused has spent Rs.6,125.00, Rs.6,475.00, Rs.6,825.00, Rs.7,350.00, Rs.7,815.00, Rs.8,400.00, Rs.8,925.00, Rs.9,450.00 Rs.9,975.00 Rs.10,675.00, Rs.16,715.00, Rs,17,315.00, Rs.18,115.00 and Rs.18,990.00. The total comes to Rs.1,53,150.00.
10.25. The reading of Ex.P.36g Report would show that for the purpose of cultivation in sy.no.31/7 the expenses was Rs.2,009.00, in respect of sy.no.68/3 the expenses was Rs.2,720.00, in respect of sy.no.165/6 the expenses was Rs.2,735.00, in respect of sy.no.273/2 the expenses was Rs.10,035.00, in respect of sy.no.7/1B the expenses was Rs.2,175.00, in respect of sy.no.42/1 the expenses was Rs.7,690.00 and Rs.6,150.00, in respect of sy.no.96/1 the expenses was Rs.3680.00 and Rs.6,650.00, in respect of sy.no.165/7 the expenses was Rs.3,500.00 and Rs.7,700.00, in respect of sy.no.254/1A the expenses was Rs..7,610.00 and in respect of sy.no.188/3 the expenses was Rs.23,390.00. Thus, from the above calculation the total agricultural expenditure incurred was Rs.86,044.00.
/76/ Spl.CC.138/2009 10.26. As per Report at Ex.P.36a and 36g, accused is entitled for 1/5th share over the agricultural income. Therefore, at the most the prosecution can contend that accused is incurred 1/5th of total expenditure. From the above discussion, total agricultural expenditure comes to Rs.1,53,150.00+Rs.86,044.00=2,39,194.00. The 1/5th of this expenditure comes to Rs.47,838.80.
10.27. It is relevant to mention that while considering agricultural income of the accused, the IO has taken into consideration the net income i.e., by deducting agricultural expenses. Therefore, once again considering agricultural expenditure of Rs.1,95,293.00 does not arise. Hence, IO is not justified in considering agricultural expenditure of the accused.
10.28. It is the case of the prosecution that the accused while working in Chamarajanagar has paid house rent of Rs.10,240.00. In fact accused has admitted the same. Hence, a sum of Rs.10,240.00 is considered as an expenditure of the accused.
10.29. The IO has considered a sum of Rs.21,876.00 the expenditure towards payment of water and electricity bill in respect of house no.5, 12th Cross, Bhovipalya, Mahalakshmi Layout, Bengaluru. The accused has admitted this expenditure. Hence much discussion is not required. Accordingly a sum of Rs.21,876.00 is considered as expenditure of the accused incurred by him during the check period.
/77/ Spl.CC.138/2009 10.30. According to the prosecution a sum of Rs.13,676.00 is an expenditure borne by the accused towards water bill in respect of house no.823. However, it is the contention of the accused that he stayed in the said house only during March 2002 to March 2004. According to him, from April 2004 to May 2006 tenants have occupied the same. The prosecution to substantiate the fact that the accused has remitted a sum of Rs.13,676.00, it has placed reliance on the letter and account extract issued by BWSSB as per Ex.P.28. As per Ex.P.28 the total amount paid from July 2004 to July 2006 was Rs.5,301.00. However, the prosecution did not produce any extract with regard to payment of water charges from 1999 to June 2004. In his explanation accused has declared that the total amount remitted to BWSSB was Rs.13,676.00 is not in dispute. The fact that house no.823 was in the occupation of tenants for certain period is not in dispute. Thus, the figure shown by the accused that he did remit only a sum of Rs.13,676.00 towards consumption of water is probable and hence accepted. Therefore, it is held that the accused has incurred a sum of Rs.13,676.00 towards the payment of water charges.
10.31. According to the prosecution a sum of Rs.21,090.00 is the expenditure borne by the accused towards payment of electricity bill in respect of house no.823. However, it is the contention of the accused that he stayed in the said house only during March 2002 to March 2004. Similarly, from April 2004 to May 2006 the tenants have occupied the same. The prosecution to substantiate the fact that the accused has /78/ Spl.CC.138/2009 remitted a sum of Rs.21,090.00 it has placed reliance on the letter and account extract issued by BESCOM as per Ex.P.29. As per Ex.P.29 the total amount paid was Rs.21,090.00. However, the prosecution did not produce any extract with regard to payment of electricity charges from January 2004 to June 2006. The contention of the accused that he has paid only a sum of Rs.12,865.00 is appears probable because the fact that the house no.823 was in the occupation of the tenants for certain period is not in dispute. Thus, the figure shown by the accused that he did remit only a sum of Rs.12,865.00 towards consumption of electricity is probable and hence accepted.
10.32. The IO has considered a sum of Rs.19,500.00 as expenditure towards gas consumption vide consumer no.891796. He has secured a letter dated 04.04.2008 as per Ex.P.23. The reading of this document would show that average consumption of LPG per year was 7 cylinders at Rs.306.86 each i.e., Rs.2,148.02. The IO has calculated total expenses for 16 years to the tune of Rs.19,500.00. It is the contention of the accused that most of the time his children and wife were staying with mother-in-law as he was working at different places like Bidar, Mandya, K.R.Pet and Channapatna. According to him, towards the consumption of gas, he has spent only Rs.7,620.00. If really, the contention of the accused were to be true, there was no impediment for him to produce consumer card containing details of supply of gas cylinders. The fact that a family consisting of 4 members require atleast 7 cylinders per year for /79/ Spl.CC.138/2009 its survival is cannot be termed as exorbitant. Therefore, this court is of the view that the IO is justified in considering a sum of Rs.19,500.00 as expenditure of the accused towards LPG consumption. Hence, the said expenditure is considered as the expenditure of the accused.
10.33. According to prosecution a sum of Rs.53,404.00 is the expenditure incurred by the accused towards land line telephone bill in respect of telephone no.23498963 connected to house no.823. It is the contention of the accused that he stayed in the said house only during March 2002 to March 2004 and from April 2004 to May 2006 the tenants have occupied the same. The prosecution to substantiate the fact that the accused has remitted a sum of Rs.53,404.00 has placed reliance on the letter and account extract issued by BSNL as per Ex.P.24. As per Ex.P.24 the total bill amount was Rs.53,404.00. However, the contention of the accused that the said land line was utilised by the tenants and they have paid telephone bill is cannot be accepted. Admittedly, land line telephone no.23498963 is connected to house no.823 and hence, it is the liability of the accused to pay the bill amount is cannot be denied. Even in the alleged rental agreements also there is no mention with regard to liability of the tenants to pay the telephone bills. Under the circumstances, only option available for the court is to consider a sum of Rs.53,404.00 as expenditure of the accused. Accordingly considered.
/80/ Spl.CC.138/2009 10.34. According to prosecution, the accused has paid a sum of Rs.40,000.00 towards LIC Policy premium. In fact the accused did not dispute this expenditure. However, in the lines of discharging its burden, the prosecution has produced letter of LIC as per Ex.P.30. As per this document LIC policy no.614527677 stands in the name of accused and he has paid total premium amount of Rs.40,000.00 as on 23.06.2006. Thus, a sum of Rs.40,000.00 is considered as expenditure of the accused.
10.35. It is the contention of the prosecution that the accused has spent Rs.14,032.00 towards the maintenance of Bajaj Chetak Scooter. Similarly, it is its contention that the accused has spent Rs.12,571.00 towards the maintenance of Hero Honda Splendor bike bearing No.KA02 EE 4860. In fact the accused at the time of his statement u/sec 313(5) of Cr.P.C. has admitted this expenditure. Therefore, a sum of Rs.14,032.00 and Rs.12,571.00 are considered as the expenditures of the accused during the check period.
10.36. According to the prosecution the accused has incurred expenditure of Rs.70,500.00 towards education of his son Kiran and Rs.54,740.00 towards eduction of his son T.Goutham. In order to substantiate the same, the prosecution has placed reliance on the letter issued by Gandhi Centenary School, Rajajinagar, Bengaluru as per Ex.P.31 & 32. The reading of Ex.P.31 & 32 would show that in respect of tuition fee, a sum of Rs.37,140.00, Rs.54,740.00 & Rs.33,360.00 was remitted in respect of T.Kiran and T.Goutham.
/81/ Spl.CC.138/2009 10.37. However, it is the contention of the accused that the entire educational expenses were borne by his brother N.Narayanagowda. The said N.Narayanagowda is examined as DW.5. According to DW.5 he was working as Electrical Contractor and he has paid Rs.70,500.00 and Rs.55,500 for the education of Kiran and Goutham respectively. In fact, to prove this aspect of the matter, except the self serving interested testimony of DW.5 there are no other piece of evidence before the court. When admittedly, accused is serving as Class-I government officer, question of his brother remitting school fee does not arise. Further, the accused has not made out special circumstances which made said Narayanagowda to remit school fee.
10.38. Further, the evidence of DW.5 in cross-examination would show that the family properties are already partitioned. Hence, it can be gathered that both the accused and his brother Narayanagowda were residing separately. Under the circumstances, it is highly impossible to accept the evidence of DW.5 that he has borne the educational expenses of T.Kiran and T.Goutham. Hence, it is held that the defense of the accused is not probable to accept. On the other hand, the contention of the prosecution is substantiated by document evidence. Therefore, a sum of Rs.70,500.00 and Rs.54,740.00 are considered as the expenditures of the accused incurred by him during the check period.
10.39. It is the contention of the prosecution that at the time of house opening ceremony accused has spent Rs.5,000.00. This /82/ Spl.CC.138/2009 expenditure is not denied by the accused. Hence, it is held that the accused has spent a sum of Rs.5,000.00 at the time of house opening ceremony. Hence, this amount of Rs.5,000.00 is considered as the expenditure of the accused.
10.40. It is also the theory of prosecution that accused and his wife have paid income tax of Rs.4,734.00 and Rs.1,310.00 respectively. This fact is not denied by the accused. Hence, a sum of Rs.4,734.00 & Rs.1.310.00 amounting to Rs.6,044.00 is considered as the expenditure of the accused during the check period.
10.41. Hence, for the reasons and discussions made herein above, this court is of the opinion that following are the expenditures incurred by the accused during the check period:
Sl.No. Expenditure Amount
(in Rs.)
1 Expenditure towards domestic expenses of the 3,47,866.00
family of the accused
2 Expenditure towards registration fee & stamp 2,610.00
duty at Bhovipalya site
3 Expenditure towards property tax to the house 6,644.00
at No.5, 12th Cross, Bhovipalya, Mahalakshmi Layout, Bengaluru 4 Expenditure towards sketch and property tax to 30,691.00 the house at No.823, 13th Cross, Mahalakshmi Layout, Bengaluru in the name of the wife of accused.
/83/ Spl.CC.138/2009 6 Expenditure towards registration fee and stamp 16,880.00 duty to BDA site at Anjanapura 7 Expenditure towards registration fee and stamp 14,290.00 duty to agricultural land at Sy.No.188, and 254/A 8 Expenditure towards payment of house rent 10,240.00 9 Expenditure towards payment of water and 21,876.00 electricity bill in respect of house No.5, 12th Cross, Bhovipalya, Mahalakshmi Layout, Bengaluru 10 Expenditure towards payment of water bill in 13,676.00 respect of house No.823, 13th Cross, Mahalakshmi Layout, Bengaluru.
11 Expenditure towards payment of electricity bill 12,865.00 in respect of house No.823, 13th Cross, Mahalakshmi Layout, Bengaluru.
12 Expenditure towards gas consumption vide 19,500.00 consumer No.612644 13 Expenses towards landline telephone 53,404.00 14 Payment towards LIC Policy premium 40,000.00 15 Expenditure towards Bajaj Chetak Scooter maintenance charges 14,032.00 16 Expenditure towards Hero Honda Splendor bike maintenance charges vide bearing No.KA02 12,571.00 EE 4860 17 Expenditure towards education to T.Kiran, son 70,500.00 of the accused 18 Expenditure towards education to T.Goutham, 54,740.00 son of the accused 19 Expenses towards house opening ceremony of 5,000.00 house no.823 /84/ Spl.CC.138/2009 20 Payment of Income tax by the wife of the 6,044.00 accused Total Expenditure 7,53,429.00
11. Income of the accused:
The IO has taken into consideration the following income of the accused for the check period commencing from September 1984 to 23.06.2006.
Sl.No. Income Amount
(in Rs.)
1 Salary Income 11,14,272.00
2 Income from house rent in respect of house 4,88,471.00
No.5, 12th Cross, Bhovipalya, M.L.Layout,
Bengaluru.
3 Income from house rent in respect of house
No.823, 13th Cross, Bhovipalya, M.L.Layout, 2,66,667.00
Bengaluru.
4 Agricultural income 7,63,143.00
5 Income from through release deed 2,00,000.00
6 Income from gifts received at the time of 20,000.00
Gruhapravesha by the wife of the accused
7 Income from cash reward from the Department 8,500.00
8 Income from Income Tax Refund 1,382.00
9 Income from sale of Bajaj Chetak Scooter 8,500.00
/85/
Spl.CC.138/2009
10 Income from NSC, Master Plan and Master 90,419.00
Gains
11 Interest received from maturity of RD, RD 5,96,929.00
Commission, FD and SB Account
Total Income 35,58,283.00
11.1. According to prosecution during the check period the accused drawn salary of Rs.11,14,272.00. So as to substantiate the same the prosecution has placed reliance on the salary particulars of the accused as per Ex.P.33. It is relevant to note that the accused did not dispute the figures shown by the prosecution. On the other hand he did admit that his total salary income during the check period was Rs.11,14,272.00. Hence, it is held that the salary income of accused during the check period was Rs.11,14,272.00.
11.2. This item of income which the IO has taken into consideration was house rent in respect of house no.5 of Bhovi Palya.
The fact that this house stands in the name of accused is not in dispute. According to prosecution, rental income of accused from the said house was Rs.4,88,471.00 which includes advance amount of Rs.1,70,000.00. However, according to the accused the total rental income was Rs.6,47,706.00 which includes advance of Rs.1,70,000.00. In fact to substantiate the contention of the accused he has placed reliance on Ex.D.32 to 39. In his statement filed under section 313(5) of Cr.P.C. accused has contended that he has received total rent of Rs.4,77,706.00.
/86/ Spl.CC.138/2009 11.3. It is relevant to mention that to substantiate his contention accused being DW.8 has deposed that he received total rent of Rs.4,77,706.00. He has made reference about Ex.D.32 to 39. It is the evidence of DW.8 that he received Rs.1,70,000.00 from two tenants which was not refunded at the time of registration of the case. In his statement u/sec.313(5) of Cr.P.C, the accused has contended that he was taken an advance of Rs.1,70,000.00 and that amount was with him as on the date of raid. The reading of Ex.D.37 would show that on 01.04.2006 there was rental agreement between accused and Sona Ram Patel. As per this document accused received advance of Rs.1,00,000.00. This agreement was for a period of 11 months. Similarly, the reading of Ex.D.38 Rental Agreement dated 29.04.2006 would show that one Sameer was entered into rent agreement with accused and accused had received advance of Rs.1,00,000.00. As per this document also the lease for a period of 11 months. Admittedly, raid was conducted on 24.06.2006.
11.4. The reading of final report would show that out of total rent of Rs.4,77,706.00, 30% was deducted towards maintenance. In fact accused has fairly submitted that a deduction of 30% is allowed only for income tax purpose as maintenance. There is no evidence on record that 30% of total rent was spent towards maintenance. Hence, the same cannot be reduced as no income to that extent has spent towards maintenance. In view of the above circumstances, this court is of the /87/ Spl.CC.138/2009 opinion that as on the date of raid the total accumulated rent was Rs.4,77,706.00 + Rs.1,70,000.00 = Rs.6,47,706.00. Accordingly, explanation given by the accused is accepted.
11.5. The next item of income which the IO was taken into consideration to assess the income of accused during the check period was Rs.2,66,667.00 from house rent in respect of house no.823, 13th Cross, Mahalakshmi Layout, Bengaluru. The fact that the said house stands in the name of Smt.Shylaja, wife of the accused is not in dispute. In order to put up construction over site no.823 in the name of Smt.Shylaja accused has obtained permission from Excise Assistant Commissioner, Mandya on 30.09.2000. Therefore, it is clear that with prior sanction from the competent authority house was constructed on site no.823 of Mahalakshmi Layout.
11.6. In fact, the accused has contended that total rental income received from house no.823 during the check period was Rs.4,60,000.00 and as on the date of raid advance amount of Rs.1,00,000.00 was with him. According to DW.7 ground floor of house no.823 was given on rent to Renukaprasad from 01.04.2004 to 31.03.2005 on monthly rent of Rs.10,000.00. From 01.04.2005 to 31.05.2006 Renukaprasad had occupied ground floor as well as first floor on monthly rent of Rs.20,000.00. According to her she has totally received rent of Rs.1,20,000.00 and Rs.2,80,000.00 in addition to advance amount of /88/ Spl.CC.138/2009 Rs.1,00,000.00 and she has returned the same to Renukaprasad on 05.07.2006. However, at the time of cross-examination of DW.7 nothing is suggested to her denying her evidence with regard to receipt of rent of Rs.4,00,000.00 and advance of Rs.1,00,000.00.
11.7. It is relevant to mention that the said Renukaprasad is examined as DW.1. He in his chief-examination reiterated that he was tenant in the house of Shylaja from 01.04.2004 to 31.05.2006 and was paying monthly rent of Rs.10,000.00 for first 12 months. It is also his evidence that he occupied even first floor and total rent fixed was Rs.20,000.00 per month. His evidence would show that he had paid advance of Rs.1,00,000.00 to Shylaja and taken it back on 05.07.2006.
11.8. To substantiate the contention of the accused with regard to receipt of rent of Rs.4,00,000.00, he has placed reliance on Ex.D.2 Rent Agreement dated 2.04.2004. It is suggested to DW.1 that Ex.D.2 is a concocted document. However, nothing is suggested to the effect that he was not at all resided in house no.823.
11.9. It is relevant to note that in his Annual Property Returns as per Ex.P.6 the accused has declared that for the years 2003-04, 2004-05, 2005-06 he received rent of Rs.36,000.00, Rs.1,20,000.00 & Rs.2,40,000.00 respectively from the house no.823. Thus, it is clear that at an undisputed point of time, as per Ex.P.6 Annual Property Returns, /89/ Spl.CC.138/2009 accused has declared rental income of Rs.36,000.00+ 1,20,000.00+ 2,40,000.00 amounts to Rs.3,96,000.00. In addition to the above document, the accused has also produced Ex.D.28 Rent Receipt Book. The genuineness of this book is not denied by the prosecution. As per this document S.Renukaprasad has paid Rs.1,00,000.00 and rent of Rs.4,00,000.00.
11.10. In fact the IO has agreed that from house no.823, accused received rent of Rs.4,00,000.00 during the check period. However, the reading of final report would show that out of total rent of Rs.4,00,00.00, 30% was deducted towards maintenance. In fact accused has fairly submitted that a deduction of 30% is allowed only for income tax purpose as maintenance. There is no evidence on record that 30% of total rent was spent towards maintenance. Hence, the same cannot be reduced because there is no evidence to show that 30% of rent was spent towards maintenance. In view of the above circumstances, this court is of the opinion that as on the date of raid the total accumulated rent was Rs.4,00,000.00. Hence, it is held that the accused has received rental income of Rs.4,00,000.00 in respect of house no.823.
11.11. According to prosecution accused has received agricultural income of Rs.7,63,143.00. However, it is the contention of the accused that he has received agricultural income of Rs.9,15,912.00. To prove the agricultural income of accused the prosecution has placed reliance on /90/ Spl.CC.138/2009 Ex.P.36 evidence of PW.10 & 11. In fact accused being DW.8 has deposed that he is having 5 acres 21 ¾th guntas of ancestral agricultural property at Mugalur of Turuvekere Taluk and 4 acres 14 ½ guntas of self acquired property in addition to it he is having ancestral property of 1 acre 14 ½ guntas of land.
11.12. It is relevant to note that as per Ex.P.6 Annual Property Returns in the year 1991-92 accused has declared that 3 acre coconut plantation, 1 acre of paddy field and 6 acres of dry land is stands in the name of his mother. However, he did not declare the income. In the year 1996-97 accused has declared that he received Rs.8,000.00 of agricultural income from ancestral property. In Ex.P.6, accused has declared that he received agricultural income of Rs.10,000.00 in the year 1997-98, Rs.10,000.00 in the year 1998-99, Rs.15,000.00 in the year 1999-2000, Rs.27,000.00 in the year 2000-01, Rs.32,300.00 in the year 2001-02, Rs.28,800.00 in the year 2002-03, Rs.49,600.00 in the 2003-04, Rs.59,735.00 in th e year 2004-05 and Rs.67,950.00 in the year 2005-06 of agricultural income. Thus, it is clear that the accused has declared agricultural income of Rs.3,08,385.00 at an undisputed point of time. Therefore, his evidence that he received agricultural income of Rs.9,15,912.00 is without any substance.
11.13. The learned counsel for the accused has placed reliance on the decision reported in 2009 (9) SCC 221 in the case between Malay /91/ Spl.CC.138/2009 Kumar Ganguly Vs. Dr.Sukumar Mukarjee & Others and argued that the report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross- examination. The ratio of the above decision is applicable to present case because the author of Ex.P.36 has been examined by the prosecution. There is no evidence on record to show that this witness in order to help the prosecution given Ex.P.36. It can be gathered from the evidence of PW.10 & 11 that while discharging their official duty, they have prepared Ex.P.36 and submitted the same to the IO. Hence, to disbelieve their evidence, there are no reasons. Under the circumstances, to outweigh the opinion of the Experts as per Ex.P.36, there is no clinching evidence from the side of accused with regard to his claim that he has received agricultural income of Rs.9,15,912.00. Since the contention of the prosecution is based on reports of experts and the same is proved as provided under law by examining the author of report, this court is of the opinion that the IO is justified in considering the agricultural income of accused for the check period as Rs.7,63,143.00.
11.14. According to accused, the IO has not considered the tailoring income of Smt.M.Shylaja. It is his contention that this income is regularly shown in the Annual Property Returns of the accused as per Ex.P.6 and also in Income Tax Returns as per Ex.P.7. It is pertinent to note that in his Annual Property Returns as per Ex.P.6 for the year 2001-02 accused has declared Rs.79,500.00, for the year 2002-03 Rs.86,000.00, /92/ Spl.CC.138/2009 for the year 2003-04 Rs.36,000.00 as the income earned by his wife Shyaja from tailoring. This amounts to Rs.2,01,500.00. In her Income Tax Returns for the Assessment Year 2004-05, Shylaja has declared income of Rs.56,000.00 from business. This declaration so made in the year 2004-05 would support the contention of the accused that his wife had income from tailoring. When the documents collected by IO as per Ex.P.6 disclose that the accused has declared income of his wife from tailoring, the IO ought to have taken the same into consideration. But he has not chosen to do so. Since, the accused has declared income of his wife from tailoring to the tune of Rs.2,01,500.00, the only option available for this court to accept the contention of the accused. Hence, it is held that the wife of the accused received income of Rs.2,01,500.00 from tailoring.
11.15. According to accused he had borrowed loan of Rs.2,00,000.00 from one Javaregowda at the time of construction of house no.823. It is relevant to mention that the IO has secured the Annual Property Returns of the accused as per Ex.P.6. The perusal of Annual Property Returns for the year 2001-02 would show that for the completion of construction of house no.823, the accused had borrowed hand loan of Rs.2,00,000.00 from Javaregowda. Since prosecution itself has secured Ex.P.6 from the competent authority it cannot deny the genuineness of the same. Further, this accused has also produced APR's as per Ex.D.31. This document clearly indicate that the accused at an undisputed point of time /93/ Spl.CC.138/2009 declared that he had borrowed hand loan of Rs.2,00,000.00 from Javaregowda.
11.16. It is not out of place to mention here that to substantiate the alleged transaction, the accused has examined said Javaregowda as DW.4. It is the definite evidence of DW.4 that on 02.04.2001 he had lent loan of Rs.2,00,000.00 to accused and this process was evidenced by loan agreement as per Ex.D.10. This evidence of DW.4 would corroborate with the stand taken by accused. The perusal of cross-examination portion of evidence of DW.4 would show that except suggestions which are denied nothing worthwhile is elicited from his mouth to disbelieve his evidence.
11.17. In addition to the evidence of DW.4, the accused being DW.8 has deposed that on 02.04.2001 he had borrowed hand loan of Rs.2,00,000.00 from his cousin Javaregowda by entering into loan agreement as per Ex.D.10. The careful scan of the evidence of DW.8 in cross-examination would show that his evidence with regard to borrowal of loan of Rs.2,00,000.00 from Javaregowda is remained unchallenged. When the prosecution did not challenge alleged transaction, the option available to the court is to accept the evidence of DW.8 with regard to borrowal of loan of Rs.2,00,000.00 from Javaregowda.
11.18. The explanation attached to section 13(1)(e) of PC Act would show that known source of income means income received from /94/ Spl.CC.138/2009 any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. In the present case from the reading of admitted document, it is clear that accused in his APR has declared that he had borrowed hand loan of Rs.2,00,000.00 from Javaregowda. This declaration or its acceptance by the competent authority is not denied by the prosecution. In fact Ex.D.31 bears the seal of accepting authority. Therefore, it is clear that at an undisputed point of time the declaration so made by this accused, was accepted by the competent authority empowered to accept the same. It is settled law that in case of known source of income as per section 13(1)(e) no formal proof is required, mere legality of the source and its intimation as per law is sufficient. Therefore, as per section 13(1)(e) the income should be from a legal source and further it has to be intimated in accordance with law.
11.19. In the present case the accused has submitted his APRs as per Ex.P.6 and Ex.D.31 and declared that he had borrowed loan of Rs.2,00,000.00 from Javaregowda. The said Javaregowda being DW.4 has reiterated the same. To disbelieve or to discard his testimony, there are no reasons. The evidence of DW.8 is inconsonance with Ex.P.6. Therefore, the accused both by way of oral and documentary evidence has proved to the satisfaction of this court that he had borrowed loan of Rs.2,00,000.00 from Javaregowda. Hence, this sum shall have to be considered as income of the accused during the check period.
/95/ Spl.CC.138/2009 11.20. According to accused to complete the construction of house no.823, his wife Shylaja had borrowed loan of Rs.2,00,000.00 from one B.M.Rudraiah. The wife of accused being DW.7 has deposed that for construction of house no.823 she had borrowed hand loan of Rs.2,00,000.00 from Rudraiah. The suggestion that she did not borrow loan from Rudraiah is denied by her. However, to prove the loan transaction, said Rudraiah is examined as DW.2. It is his definite evidence that he has lent loan of Rs.2,00,000.00 to the wife of accused on 04.03.2001 and loan agreement was entered into as per Ex.D.3. It is suggested to DW.2 that he had no financial capacity to lend loan of Rs.2,00,000.00.
11.21. In fact to show that B.M.Rudraiah was working in LIC of India and had salary income of Rs.1,90,570.00 from 1.4.2001 to 31.03.2002 the accused has produced certificate under section 203 of Income Tax Act as per Ex.D.7. The reading of this document would show that gross salary of DW.2 per year was Rs.1,90,570.00.
11.22. According to DW.2 he possess joint family property about 15 acres. To substantiate the same, he has produced RTCs as per Ex.D.4 to 6. The reading of Ex.D.4, 5 & 6 would show that this witness is in possession of 29 guntas of land in sy.no.46/3, 1 acre 10 guntas of land in sy.no..119/2 and 16 guntas of land in sy.no.119/3 of M.Ganganahalli. Therefore, total extent of property comes to 2 acres 15 guntas. Hence, the /96/ Spl.CC.138/2009 evidence of DW.2 that he possess 15 acres of land is not proved as the same is contrary to the contents of Ex.D.4 to 6. It is suggested to DW.2 that he was getting good income from agriculture. However, it is not suggested to him that he was not at all getting any income from agriculture. Further, the evidence of DW.2 that his agricultural property is garden land is not denied by the prosecution. Hence, it is clear that DW.2 was not only getting salary income but also from agriculture. The cross- examination directed to this witness would show that except bare denial nothing worthwhile is elicited from his mouth.
11.23. In addition to the above, oral and documentary evidence, the accused has placed reliance on Ex.P.6 Annual Property Returns at page no.54. Further, the accused has also produced APR for the year 2000-01 annexed to Ex.D.47. As per this document, in the year 2000-01 accused informed his higher authority that his wife had borrowed loan of Rs.6,00,000.00 from her father, Chennappa and Rudraiah. There is no evidence on record to the effect that the declarations so made by the accused was not accepted by the competent authority. Therefore, this declaration would be in accordance with explanation attached to section 13(1) of PC Act.
11.24. In this context of the matter it is relevant to place reliance on the evidence of DW.8. In his evidence DW.8 has deposed that his wife had taken hand loan of Rs.2,00,000.00 from Rudriah. This evidence of /97/ Spl.CC.138/2009 DW.8 inconsonance with declaration made in the Annual Property Returns for the year 2000-01. It is suggested to DW.8 that the borrowal of hand loan of Rs.2,00,000.00 is not declared by the accused in his Annual Property Returns. This suggestion to DW.8 is contrary to the documents produced by the prosecution at Ex.P.6. Therefore, it is clear that the prosecution has taken contention contrary to its own document. Thus, this court is of the opinion that the accused has proved that his wife had borrowed a loan of Rs.2,00,000.00 from Rudraiah. Therefore, this sum shall have to be considered as income of the accused during the check period.
11.25. The next item of income which accused urged in his explanation is hand loan of Rs.4,00,000.00 borrowed by his wife Shylaja from Chennappa at the time of putting up construction in site no.823. In fact accused has declared this loan in his Annual Property Returns for the year 2000-01 as per Ex.P.6. This declaration is also inaccordance with the explanation attached to section 13(1) of PC Act.
11.26. In order to prove the borrowal of loan of Rs.4,00,000.00 from Chennappa, accused has got examined said Chennappa as DW.3. It is the evidence of DW.3 that on 05.10.2000 he lent loan of Rs.4,00,000.00 to Shylaja and at that time an agreement was entered into as per Ex.D.9. It is pertinent to note that though DW.3 is subjected to the test of cross-
/98/ Spl.CC.138/2009 examination, nothing is elicited from his mouth to disbelieve his evidence.
11.27. In addition to the evidence of DW.3, the accused to prove this transaction has stepped into witness box as DW.8 besides examining his wife as DW.7. The careful scan of evidence of DW.7 and 8 would clearly indicate that they have stood well in the test of cross-examination. The suggestions directed to them are denied. Hence, there is nothing on record to disbelieve their evidence. It is relevant to note that the oral evidence of DW.3, 7 & 8 is inaccordance with the declaration made by the accused in his APR as per Ex.P.6. Therefore, according to the opinion of this court both by way of oral and documentary evidence, accused has proved that his wife had borrowed loan of Rs.4,00,000.00 from Chennappa. Therefore a sum of Rs.4,00,000.00 shall have to be considered as income of the accused.
11.28. It is contended by the accused that in the year 2001 his wife received a sum of Rs.2,00,000.00 from her father Marigangaiah by relinquishing her right over Joint Family Property. To substantiate the contention of the accused he has placed reliance on the evidence of PW.12 Marigangaiah. The statement of this witness recorded by the IO on 20.10.2008 marked at Ex.P.43 would show that PW.12 has stated before the police that out of his pensionery benefit and agricultural income he had paid Rs.2,00,000.00 to his daughter Shylaja.
/99/ Spl.CC.138/2009 11.29. The reading of evidence of DW.7 would show that for construction of house no.823 she had taken Rs.2,00,000.00 from her father by relinquishing her right over land properties. In addition to her evidence, the accused being DW.8 has reiterated that his wife had received Rs.2,00,000.00 from her father by relinquishing her right over joint family property. As discussed above, the receipt of amount is declared by the accused in the year 2000-01 itself. In fact, according to IO Marigangaiah paid Rs.2,00,000.0 to Shylaja. Hence, a sum of Rs.2,00,000.00 shall have to be considered as the income of the accused.
11.30. It is relevant to note that at an undisputed point of time, much before registration of case, raid and search, the accused has declared that his wife has borrowed loan of Rs.4,00,000/- and Rs.2,00,000/- from Chennappa and Rudraiah respectively and by relinquishing her property right has taken Rs.2,00,000/- from her father Marigangaiah. It is pertinent to note that in so far as this declaration is concerned, the prosecution itself has produced annual property returns of the accused as per Ex.P-6. It is not at all the case of the prosecution that the contents of Ex.P-6 in so far as receipt of hand loan and Rs.2,00,000/- from Marigangaiah is concerned his declaration is not true. It is pertinent to note here that so far as declaration of income by the accused in his annual property returns, it has to be considered by Investigating Agency and this court. No discretion vests with the Investigating Agency or this court for not considering the income of the accused which has already /100/ Spl.CC.138/2009 been declared by him as provided under proviso attached to Sec.31(e) of P.C. Act. The discretion with the court or with the investigating agency lies only in case of undeclared income. So far as declared income is concerned, there are no such discretion vests either with the court or with the Investigating Agency for not considering the same. Under the circumstances, this court is of the firm opinion that the declaration made by the accused as per Ex.P-6 is to be accepted and accordingly accepted. In addition to it, as has been discussed above, the loan transaction and relinquishment of right is duly proved by the accused by producing oral and documentary evidence.
11.31. The other item of income which the IO has taken into consideration is an amount received by way of presentation at the time of house opening ceremony and marriage to the tune of Rs.20,000.00. Similarly, a sum of Rs.8,500.00 which is the cash reward received by the accused from his department. The IO has taken into consideration a sum of Rs.1,382.00 as the amount received by the wife of accused as income tax refund amount. Therefore, the following sum of Rs.20,000.00, Rs.8,500.00 and Rs.1,382.00 shall have to be considered as income of the accused.
11.32. According to accused he had received Rs.2,01,447.00 by sale of gold ornaments and silver articles. He has contended that his wife received gold ornaments and silver articles from HUF and some of them are received at the time of auspicious occasions. According to him those /101/ Spl.CC.138/2009 articles were sold to repay certain hand loans and he has declared the same in his Annual Property Returns for the year 2006-07. This declaration is made subsequent to the date of raid. Hence, much reliance cannot be attached to this declaration.
11.33. In fact to substantiate the contention of accused, he has examined one Vimal Kumar Jain DW.6. This witness has deposed that after the purchase of old jewelery, he has issued bills as per Ex.D.12 to
22. The perusal of bill numbers in Ex.D.12 to 22 would show that they are not in a chronological order. This type of bills can be created by anybody. To counter check the entries found in Ex.D.12 to 22, DW.6 has not produced cash book. In addition to it, to show that DW.6 is running jewellary business, he did not produce any license. When prosecution has contended that Ex.D.12 to 22 are fake purchase bills, it is for the accused to prove the same with reference to cash book maintained by DW.6. Such an attempt is not made by accused. Therefore, the contents of Ex.D.12 to 22 are not proved.
11.34. The evidence of DW.7 & 8 is in accordance with stand taken by the accused that he received a sum of Rs.2,01,447.00 by sale of gold ornaments and silver articles. However, their evidence is not supported by any documentary evidence of undisputed point of time. Therefore, accused has failed to prove alleged sale of gold ornaments and silver articles. Thus, according to the opinion of this court, a sum of /102/ Spl.CC.138/2009 Rs.2,01,447.00 shall not be considered as the income of the accused during the check period. Accordingly, not considered as claimed by the accused.
11.35. The IO has taken into consideration a sum of Rs.8,500.00 the amount received by the accused by sale of Bajaj Chetak Scooter. Similarly, he has considered the value of NSC to the tune of Rs.90,419.00, Rs.5,96,929.00 received by the accused through RD Account. Therefore, a sum of Rs.8,500.00, Rs.90,419.00 and Rs.5,96,929.00 shall have to be considered as income of accused during the check period.
11.36. Hence, for the foregoing reasons and discussions, this Court is of the opinion that following are the income of the accused during the check period.
Amount
Sl.No. Income
(in Rs.)
1 Salary Income 11,14,272.00
2 Income from house rent in respect of house 6,47,706.00
No.5, 12th Cross, Bhovipalya, M.L.Layout,
Bengaluru.
3 Income from house rent in respect of house 4,00,000.00
No.823, 13th Cross, M.L.Layout, Bengaluru.
4 Agricultural income 7,63,143.00 /103/ Spl.CC.138/2009 5 Income received by the wife of the accused 2,01,500.00 Smt.Shylaja from tailoring 6 Loan borrowed from Javaregowda 2,00,000.00 7 Loan borrowed from Rudraiah 2,00,000.00 8 Loan borrowed from Chennappa 4,00,000.00 9 Income received by the wife of the accused by 2,00,000.00 relinquish her right over Joint Family Property 10 Income from gifts received at the time of house 20,000.00 opening ceremony.
11 Income from cash reward from the Department 8,500.00 12 Income from Income Tax Refund 1,382.00 13 Income from sale of Bajaj Chetak Scooter 8,500.00 14 Income from NSC, Master Plan and Master 90,419.00 Gains 15 Interest received from maturity of RD, RD 5,96,929.00 Commission, FD and SB Account Total Income 48,52,351.00
12. Conclusion:
The learned counsel for the accused has placed reliance on the decisions reported in 2018 SCC ONLINE (SC) 974 in the case between Mohanlal Vs. State of Punjab, 2019 SCC ONLINE RAJASTAN 972 in the case between Rahul Yadav Vs. State of Rajastan, 2010 (15) SCC 369 in the case between Inspector of NIB, Tamil Nadu Vs. Rajangam and in 1996 (11) SCC 709 in the case between Megasingh Vs. State of /104/ Spl.CC.138/2009 Haryana and argued that in the present case the complainant and investigating officer is one and the same person and hence it has caused prejudice to the accused as the complainant is always interested in succeeding in his case. This submission of Sri.S.P.H.Advocate for the accused is in tune with the decisions referred to above. Admittedly, in the present case it is PW.2 Irshan Ahmed Khan who has prepared source report as per Ex.P.2, registered the case against the accused and conducted investigation. It is not out of place to mention here itself that the evidence of PW.2 would only show that he has collected evidence during the course of his investigation. He has failed to explain before the court as to how he has analysed the documents collected by him so as to file charge sheet against the accused in the present case.
12.1. From the reading of evidence of PW.2 it is clear that he has not obtained any order of entrustment from SP, Lokayukta as required under section 17 of PC Act. Further, no incriminating circumstances are borne out from the mouth of PW.2 pointing the guilt of accused. Hence, it is clear that the act of PW.2 has not caused any prejudice to the accused.
Under the circumstances, this court is of the opinion that the ratio of the above decisions are not applicable to this case.
12.2. In the present case the accused has been prosecuted for the offence punishable under section 13(1)(e) of PC Act. In the case between P.Nallammal Vs. State reported in 1999 SCC Cri.1133 it is held that "the two postulates must combine together for crystallization into the /105/ Spl.CC.138/2009 offence, namely, possession of property or resources disproportionate to the known source of income of public servant and the inability of the public servant to account for it/them. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb." Thus, it is clear that mere possession of assets disproportionate to known source of income does not lead to the presumption that the accused has committed the offence punishable under section 13(1)(e) of PC Act. On the other hand, if accused fails to offer satisfactory explanation for possessing disproportionate assets then it is an offence.
12.3. It is settled proposition of law that to substantiate a charge under section 13(1)(e) of PC Act, the prosecution must prove the following ingredients namely (1) that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income i.e., known to the prosecution, and (4) it must prove, quite objectively that such resources or property found in possession of the accused were disproportionate to his known source of income. Once the above ingredients are satisfactorily established, the offence of the criminal mis-conduct is complete, unless the accused is able to account for such resources. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused.
/106/ Spl.CC.138/2009 12.4. In the present case, the self serving testimony of PW.2 only indicate that he has collected the documents and filed the charge sheet. As to how he as come to the conclusion that the accused is in possession of disproportionate asset is not explained by him to the satisfaction of this court. Per contra, the accused has produced convincing evidence to the satisfaction of this court that he had sufficient source of income so as to acquire the properties. Hence, in the present case the prosecution has failed to prove quite objectively that the resources or property found in the possession of accused were disproportionate to his known source of income. Therefore, the ingredients referred to above are not proved by the prosecution.
12.5. Further, our Hon'ble High Court in 2010 (2) KLJ 1C in the chase between Babappa Vs. State by Lokayukta Police, Gulbarga has held that, expression 'known source of income' refers, not to sources known to prosecution but to sources known to the accused himself for which he alone can know all his source of income. PC Act casts the burden on the accused not only to offer plausible explanation as to how he acquired the wealth, but also satisfy the court that his explanation is worthy of acceptance. This burden, he can discharge by establishing his case by preponderance of probability. In the present case also the explanation offered by the accused with regard to his wife Shylaja borrowing loan from Javaregowda, Chennappa & Rudraiah is proved by the accused by producing his APRs of undisputed point of time. Further, /107/ Spl.CC.138/2009 he has also examined the persons who have lent loan to Smt.Shylaja. Under the circumstance, in so far as source of income received by Smt.Shylaja by way of loan is proved by the accused by producing positive evidence.
12.6. It is argued by the learned counsel for the accused that after completion of investigation, the IO has not called upon the accused to explain for the possession of disproportionate assets. It is settled proposition of law that mere possession of property disproportionate to the known source of income does not constitute an offence under section 13(1)(e) of PC Act, but, it is the failure of the accused to show satisfactory account for such possession that makes the act as an offence under law. Therefore, it is for the IO to give an opportunity to the accused to explain the source of disproportionate assets. In the present case the evidence of PW.2 is very much silent with regard to he calling upon the accused to submit his explanation.
12.7. In the decision reported in LAWS (MAD) 2007-12-547 R.Kannappan & K.Chandrashekaran Vs. State by Deputy Superintendent of Police, it is held that, " similarly, after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known source of income, the accused must be given an opportunity to explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the case of prosecution". Here in /108/ Spl.CC.138/2009 the present case, it is not the contention of the prosecution that an opportunity was given to the accused to explain the source of disproportionate assets. Further, the contention of the accused that the IO has not given an opportunity to him to explain is not denied by the prosecution. Hence, the above aspect of the matter is fatal to the case of prosecution.
12.8. In view of the decision of the Hon'ble Supreme Court in the case between Ashok Tsering Bhutia Vs,. State of Sikkim reported in 2011 (4) SCC 408, non securing of authorisation as per second proviso attached to section 17 of PC Act is not fatal to the case of prosecution as the accused has failed to show that the investigation carried out by PW.2 resulted in miscarriage of justice.
12.9. Thus, to sum up, the prosecution has proved the following facts beyond reasonable doubt that as against income of Rs.48,52,351/- and expenditure of Rs.7,53,429/-, accused acquired and possessed in his name and in the name of his family members immovable properties and pecuniary resources to the tune of Rs.35,66,734/-. Hence, there is no disproportionate assets acquired by the accused during the check period.
12.10. Thus, considering all these aspects, my thoughtful view is that guilt of the accused regarding criminal misconduct, so as to convict him for the offences punishable U/sec. 13(1)(e) r/w sec.13(2) of the /109/ Spl.CC.138/2009 Prevention of Corruption Act, 1988 is not proved. Accordingly, I answer the point No.1 in the Negative.
13. POINT NO.3: In view of my findings on the above points, accused deserves the order of acquittal. Accordingly, I proceed to pass the following ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.13(1)(e) r/w section 13(2) of Prevention of Corruption Act, 1988.
The bail bond executed by the accused and that of his surety stands cancelled.
(Dictated to Stenographer/Judgment Writer on computer, typed by her, corrected, signed and then pronounced by me in the open court on 24 th February, 2021).
(GOPALAKRISHNA RAI.T) LXXVIII Addl.City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru.
(CCH-79).
**** /110/ Spl.CC.138/2009 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.No. Name
1 C.S.Babu Nagesh
2
Irshad Ahmed Khan
3
B.N.Jagadish
4
Smt.Kavitha.M.G
5
Jayadeva Prakash
6
Srinivasmurthy. R
7
K.C.Ramalingaiah
8 B.Prasanna Kumar
9 Balachandra Sait
10 Rajappa
11 K.Gopya Naik
12 Marigangaiah
13 Ramanjanappa.K.
/111/
Spl.CC.138/2009
LIST OF DOCUMENTS MARKED FO PROSECUTION:
Exhibit
Description of the document Date of the document
No.
1 House search Mahazar 24.06.2006
1a Signature of PW.1
1b -
Signature of PW.4
1(c) to
(p) Signature of PW.7
2 Source Report 22.06.2006
3 FIR 23.06.2006
4 Search Warrant 23.06.2006
5 Service Particulars of accused 24.07.2006
6 Assets and Liability Statement 11.4.2007
7 Income Tax Returns 25.07.2006
8 Register Extract 30.08.2008
9 Register Extract 26.07.2008
10 Valuation Report dtd:14.08.2008 14.08.2008
11 Sale deed Dtd.31.01.2004 26.08.2008
12 Property Sy.No.188-251/1 of 03.01.2004
Turvekere.
13 Statement of Canara Bank 28.03.2008
Account details of accused
and his wife
/112/
Spl.CC.138/2009
14 Statement of Karnataka Bank 27.03.2008
Account of Accused
15 Statement of Karnataka Bank 05.11.2008
Account, Mahalakshmi Layout
of accused.
16 Statement of Bank account 19.03.2008
No.64000706019
17 Infotech letter dtd.07.04.2008 04.07.2008
18 Flexibond details of IDBI Bank 05.05.2008
of accused
19 Details of deposit for Krishna 17.10.2008
Bhagya Jala Nigam Ltd.,
20 Canara Bank letter 14.05.2009
21 Letter of BWSSB 15.10.2008
22 Letter of BESCOM 29.11.2008
23 Letter of HP Gas Agency 04.04.2008
24 Letter of BSNL 15.11.2008
25 Letter of RTO 8.8.2006
26 Statement of Expenditure of 5.11.2008
accused from Joint Director
(Statistics), Karnataka
Lokayukta
26(a) Signature of PW.5 -
27 Letter of BBMP 10.09.2008
/113/
Spl.CC.138/2009
28 Letter of BWSSB 7.8.2006
29 Letter of BESCOM 28.7.2006
30 Letter of LIC
31 Letter of Gandhi Centenary 08.02.2007
School
32 Letter of Sardar Patel High 08.02.2007
School
33 Letter of Commissioner of 08.02.2007
Excise.
34 Letter of Excise Commissioner 27.06.2008
35 RTC & documents from V.A. of -
Turvekere
36 Letter of Director, Horticulture 12.11.2008
36(a) Annexure-I of Ex.P.36 -
36(b) Annex-II of Ex.P.36 -
36(c) to Signature of PW.10
36(e) -
36(f) Report of PW.11 -
36(g) Signature of PW.11 -
36(h) Covering letter 12.11.08
36(i) Sign of PW.11 -
37 Letter of BT & FC (P) Ltd., 16.09.2008
/114/
Spl.CC.138/2009
38 Letter of Bharath Credit Co-op. 10.09.2008
Society Ltd.,
39 Schedule submitted by accused -
40 Sanction Order 07.05.2009
40(a) Sign of PW.3 -
40(b) Portion at Page No.2 -
41 Sanction Order 18.04.2009
42 Building Valuation Report 31.07.2008
42(a) Sign of PW.8 -
43 Portion of denied statement 20.10.2008
LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.No. Name
1 S.Renuka Prasad
2
P.M.Rudraiah
3
Chennappa
4
Javaregowda
5
Narayanagowda
6
Vimal Kumar Jain
/115/
Spl.CC.138/2009
7
M.Shailaja
8
H.Thimmegowda
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Exhibit Description of the document Date of the document
No.
1 Agreement of Sale Deed 02.04.2004
2 Rent Agreement 02.04.2004
2(a) Sign of DW.1 04.03.2001
2(b) Sign of DW.2 -
3 Loan Agreement 07.12.2006
3(a) Sign of DW.2 -
3(b) Sign of DW.7 -
3(c) Sign of DW.8 -
4 to 6 3 RTC's -
7 Form No.16 of the accused
8 Copies of 12 RTC's -
9 Loan Agreement 05.10.2000
9(a) Sign of DW.3 -
9(b) Sign of DW.7 -
10 Loan Agreement 02.04.2001
10(a) Sign of DW.4 -
10(b) Sign of DW.8 -
11 Copy of Electrical Wireman
permit letter
12 to 22 Old Jewelery purchase bills -
/116/
Spl.CC.138/2009
12(a) to Sign of DW.6 -
22(a)
23 to 27 Income Tax Returns -
28 Rent Receipt Book -
29 Order of Joint Commissioner of 22.05.2006
Excise for reward.
30 Delivery Note of Bajaj Chetak
Scooter Bearing No.CKH 3391 14.02.2002
31 Assets & Liability Statement 29.05.2002
32 to 38 Rent Agreements -
32(a) to Sign of DW.8
38(m) -
39 Confirmation Agreement of 09.06.2001
letting out the premises to
Corporation Bank
40 Permission letter from the 30.09.2000
department of accused dated
30.09.2000
41 Permission letter from the
department of accused dated 9.1.1991
09.01.1991
42 to 47 Assets & Liability Statement of -
various years
48 to 53 Income Tax Returns of various -
years
54 & 55 Income Tax Returns -
(Gopalakrishna Rai.T),
LXXVIII Addl. City Civil & Sessions Judge
& Special Judge (P.C.Act), Bengaluru
/117/
Spl.CC.138/2009
Judgment pronounced in open court
vide separate judgment.
ORDER
The accused found not guilty.
Acting under Sec.235(1) of
Cr.P.C., accused is acquitted from the
charges leveled against him for the
offence punishable under Sec.13(1)(e)
r/w section 13(2) of Prevention of
Corruption Act, 1988.
The bail bond executed by the
accused and that of his surety stands
cancelled.
(GOPALAKRISHNA RAI.T)
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.Act), Bengaluru.