Karnataka High Court
The State vs G Siddalingappa on 11 November, 2020
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER 2020
BEFORE
VISHAL N
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
PATTIHAL
Digitally
signed by
VISHAL N
PATTIHAL
Date:
2020.12.15
18:27:37
+0530
CRIMINAL APPEAL NO.2613/2010
BETWEEN :
THE STATE,
BY P.I.LOKAYUKTA POLICE STATION,
HOSPET.
.....APPELLANT
(BY SRI.SANTOSH B.MALAGOUDAR, ADVOCATE)
AND :
G.SIDDALINGAPPA,
JUNIOR ENGINEER (KEB) KPTCL,
HOLALU VILLAGE, HADAGALI TALUK,
BELLARY DIST.
....RESPONDENT
(BY SRI.S.H.MITTALKOD, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 07.09.2009 PASSED IN
SPECIAL CASE NO.104/2001 ON THE FILE OF PRINCIPAL
SPECIAL JUDGE AT BELLARY.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is preferred by complainant- Lokayukta against the Judgment of acquittal passed by Principal Special Judge at Bellary in Special Case No.104/2001.
2. Genesis to the filing of this appeal is as under :
The Police Inspector, Karnataka Lokayukta Hospet filed charge sheet against the accused/respondent for the offence punishable under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short 'the Act'). It is the case of prosecution that accused being a public servant worked as Group-
C employee in K.P.T.C.L. as Junior Engineer and during his employment amassed wealth of Rs.19,15,919=57 which was disproportionate to all his income of Rs.16,07,824=44.
3. Accused being a public servant worked as group C employee in KPTCL as Junior 3 Engineer and during his employment amassed wealth of Rs.19,15,919-57 which is disproportionate to his known source of income of Rs.16,07,824-44. On coming to know that accused has amassed assets disproportionate to his known source of income, after obtaining permission from higher officer, Police Inspector obtained a warrant from Magistrate and after securing panchas along with other Police Inspector, raided house of accused at Hoovinahadagali. Police Inspector prepared a list of assets and liabilities, documents and seized gold and silver ornaments from possession of accused. Thereafter on investigation and verification, it was found income of accused from all sources was Rs.16,07,824-44 for the check period from 1966 to 1995. The total assets collected by accused was Rs.7,82,387-95 and the expenditure made by accused and his family during the check period was Rs.11,33,531-62. On calculation of expenses, 4 assets comes to Rs.19,15,919-57 which would show that accused was having disproportionate assets of Rs.3,08,095-13, which was 19.16% more than his income.
4. Thereafter Lokayukta Police obtained sanction from Government and on the point of jurisdiction, case was transferred to Hospete, pursuant to which Hospete Lokayukta Police completed investigation and filed charge sheet for the aforesaid offences.
5. Thereafter presence of accused was secured and accused was charged for the offence punishable under section 13(1)(e) read with section 13(2) of the Act. Accused pleaded not guilty and he claimed to be tried. Accordingly he was tried.
6. To prove guilt of accused, prosecution examined in all 58 witnesses out of 71 witnesses and got marked documents Ex.P.1 to P.195. Thereafter statement of accused under section 5 313 of Cr.P.C. was recorded, wherein accused admitted seizure of property and offered his explanation and denied valuation of articles and income calculated by Investigating Officer. Accused got examined his wife as DW.1 and did not choose to produce or mark any documents on his behalf. After analyzing the material evidence both oral and documentary produced by prosecution, trial Court came to a conclusion that Investigating Officer has not properly calculated expenses and approximate value fixed by raiding party for articles kept in house are imaginary and by considering all evidence taken together, it held that there are no assets more than known source of income of accused and came to conclusion that it is not possible for accused to have committed offence under section 13(1)(e) of the Act. Therefore, trial Court held that evidence and documents produced by prosecution are not sufficient to hold accused guilty of charges leveled against 6 him and found that accused is entitled to benefit of doubt. Accordingly trial Court acquitted accused of all charges leveled against him.
7. Aggrieved by this acquittal of accused, Lokayukta Police is before this Court challenging said judgment of acquittal.
8. Heard Shri Santosh B. Malagoudar for appellant/complainant Lokayukta Police and Shri S.H.Mitta lkod learned counsel for accused/ respondent.
9. It is contended by learned counsel for appellant that judgment of acquittal passed by trial Court is not in accordance with law and it is against material evidence placed before the Court. Hence the same is required to be set aside. He further contends that trial Court has committed an error in calculating assets to the known source of income. Learned counsel further contends that overall agricultural income and benefit granted by trial Court is erroneous. 7 He further contends that benefit of jewelry of accused amounting to Rs.92,780/- has not been explained by cogent evidence or explanation by either accused or his wife as to when these jewelry were given. Learned counsel further contends that there is no explanation or cogent evidence with regard to discount of contractors profit of 15% on construction of house carried out by accused. Learned counsel further contends that trial Court has relied on certain omissions and contradictions of prosecution thereby giving benefit of doubt to acquit accused.
10. It is further contended by learned counsel for appellant that accused being a public servant was duty bound to declare his assets and liability but has failed to do so, thereby ama ssing disproportionate income to his known source of his income w hich has not been properly counted during raid and listing. Learned counsel further contends that entire approach of 8 trial Court in acquitting accused is totally against the material evidence placed on record and the same is contrary to well established legal principles and law. Learned counsel further contends that trial Court has mechanically considered evidence of witnesses thereby committing grave miscarriage of justice to appellant. On these submissions, he seeks to allow the appeal and to reverse the order of acquittal passed by trial Court and consequently convict the accused.
11. Per contra, learned counsel for respondent vehemently contends that the judgment of acquittal is in accordance with material available on record both oral and documentary and therefore there is no illegality committed in acquitting accused. He further contends that there is gross material irregularity in investigation conducted by prosecution and income has not been properly calculated by Investigating Officer thereby creating imaginary 9 and exorbitant amount of disproportionate assets which is against the principles of investigation under the Lokayukta Act.
12. Learned counsel further contends that Investigating Officer has not taken into account streedhan received by wife of accused. He further contends that Investigating Officer has not taken correct income secured through agricultural source and has calculated on the low er side. It is further contended that though trial Court has rightly calculated deduction at 10% of income, it has wrongly done the calculation as the said 10% deduction has to be in total income of accused rather than from disproportionate assets. He further contends that no material irregularity has been committed in appreciating oral and documentary evidence and trial Court has rightly come to conclusion that prosecution has not been able to prove guilt of accused beyond all reasonable doubt. On these submissions he seeks to dismiss appeal 10 and confirm the judgment of acquittal passed by trial Court.
13. Having heard learned counsel for appellant and learned counsel for respondent, the points that arise for consideration before this Court are as under:
a) Whether trial Court has
considered available material
evidence placed by prosecution and has arrived at a proper conclusion to acquit accused?
b) Whether judgment of trial Court is required to be set aside and reversed?
14. To answer these questions, it is necessary to analyze evidence adduced by prosecution and materia l placed on record. It is an admitted fact with regard to possession of assets by accused and raided by Lokayukta Police which seized properties under panchanama Ex.P.3. Lokayukta Police during 11 raid seized various documents from house of accused pertaining to land, house, bank passbooks, NSC certificates, vehicle documents, possession of vehicles, household articles, etc.,. There is no dispute with regard to raid having been conducted on 18.9.1995.
15. It is also an admitted fact that accused was drawing a salary in basic scale of Rs.2435 to 5085 as group C employee. PW.8 who is a retired engineer has deposed with regard to issuance of Ex.P.114 being salary particulars of accused. It is also an admitted fact that accused was drawing a gross salary of Rs.12,470/- as per evidence of PW.8. Accused had joined his services on 9.8.1966 and superannuated on 30.6.2002. Admittedly total salary emoluments of accused for check period of 1966 to 1995 was Rs.8,68,379-58. Salary for the period of 1966-67 to 1970 as per Ex.P.182 and thereafter till 1993, Exs.P.183 to 187 are showing salary of accused. Therefore income of 12 accused from salary proved by prosecution would be Rs.8,68,379-58.
16. It is also seen tha t accused obtained loan for construction of house site No.4/421 (item No.2) at Hoovinahadagali at cost of Rs.88,500/-. As per evidence of PW.55 Investigating Officer, Ex.P.193 shows loan particulars obtained from his department w hich has not been denied. Regarding item No.3, loan of Rs.25,000/- was received by accused from his landed property. PW.25 who is a retired sub- registrar has deposed with regard to sale of said land and Ex.P.146 corroborates the same. With regard to item No.4, receipt of Rs.12,000/- by accused by sale of plot measuring 60' x 40', PW.33 Revenue Inspector has deposed that Ex.P.137 to 139 corroborates the same. With regard to item No.5, income received from sale of site Nos.189 and 189/A, PW.2 has deposed that the same was sold for Rs.14,000/-. Item Nos.6 to 9 are details of agricultural income 13 from land bearing Sy.No.94/B measuring 3 acres 75 cents of Kannihalli village and Sy.No.666/A measuring 3 acres 46 cents of Kannihalli village and Sy.No.178/A of Navalli village, Sy.No.164B/1/2 which has been deposed by PW.18 and PW.30.
17. With rega rd to item Nos.10 to 18, loan having been taken from Syndicate Bank for Rs.6,600/- and sale of Bullet motorcycle for Rs.16,500/-, amount received from sale of TVS motorcycle for Rs.3,100/- and loan taken from LIC for Rs.16,990/-. Therefore by calculating the total income amounted to Rs.16,07,324-44. The income from agricultural properties was admitted by accused. All other income was admitted with regard to assets found in the house, as on the date of raid by Lokayukta Police, it is seen that PW.55 has deposed that value of material mentioned in Ex.P.3 panchanama would be worth Rs.5,94,349-70. With regard to assets from item Nos.2 to 21 14 which are made in NSC, KEB employees society, ESI, LIC, purchase of land, sites, motorcycle, telephone connection, investment at BDCC bank.
18. With regard to the assets found at Item No. 1 to 22 of Computation of Assets, which are investment at FBF, CT/RD, ESU, KEB Employees Co-op. Society, Bellary, LIC, NSC, BDCC Bank, Syndicate Bank purchase of land in Navli Village, Motor cycle, etc., which on calculation arrive at Rs.7,82,387.95ps.
19. The total assets made out by the Investigating Agency is Rs.7,82,387.95ps. As regards the expenditure said to have been incurred by the accused from 1966 to 19.09.1995 is at Rs.19,15,919.57ps. It is seen that PW45 has deposed that expenditure towards professional tax is at Rs.5,514.00 and deduction towards union is Rs.166.00 and deduction towards R1, 2 and 3 is at Rs.70,819.18ps., further deduction towards festival advance is at 15 Rs.9,428/- and KEB Employees Co-Op. Society and deduction towards house building advance is at Rs.54,750/-, which entries are all shown in Ex.P158. Thereafter, it is seen that PW51 has stated that agricultural expenditure from Kanniballi Sy. No.94(B) for a sum of Rs.28,660/- as per Ex.P165. So also, PW46 has deposed that agriculture expenditure for property in Sy. No.666(A) is at Rs.13,050/-. PW48 has stated with regard to payment of land tax in Sy. No. 178A amounting to Rs.1,087/- and payment of land tax in Sy. No. 164(B)/1 in a sum of Rs.120/- which are dated 25.07.1995. PW30 has deposed about agriculture expenditure from Navali Village by N.178(A) amounting to Rs.3,47,500/- as per Ex.P150 to P152. PW32 has stated that expenditure from Sy. No. 164(B)/1 was amounting to Rs.39,425/-. PW25 has deposed about the registration for the purchase of land in Navli Village Sy. No. 164(B)/1 at Rs.1,672/-; site No.4/421 of Hadagali and also 16 for mortgaging the property with the KEB for taking house loan a t Rs.2,307/- and Rs.793/- as per Ex.P141 to P146 and also site no.494(A)/1A at Rs.1,435/- as per Ex.P151 and site Nos.189 & 189A at Rs.1,314/- as per Ex.P146. PW33 has deposed about payment of site tax and house tax to Municipality, Hadagali at Rs.3,506.70ps. as per Ex.P137 to P140 and Rs.27.40ps as per Ex.P139. PW7 has deposed of repayment of loan along with interest for the purchase of bullet motor cycle No.MYY 2569 from the Syndicate Bank, Ittigi at Rs.7,000/-; with regard to loan A/c No.PSL 22/84 at Rs.23,475/- and OSL No.111/85 in a sum of Rs.43,388.20ps. as per Ex.P111 to P113. PW49 has stated about fuel charges in respect of bullet motor cycle No.MYY 2560 at Rs.27,757.60ps as per Ex.P161. PW22 deposed about registration fee and life tax in respect of TVS Suzuki motor cycle No.KA-17 E- 9632 at Rs.1,400/- as per Ex.P131. PW1 says about expenditure on telephone use in a sum of 17 Rs.48,800/- as per Ex.P1. PW27 has deposed about expenditure towards food in a sum of Rs.2,81,890/- as per Ex.P147. PW50 has deposed about expenditure met on third daughters marriage in a sum of Rs.20,000/- as per Ex.P148. PW23 deposed about expenditure met on education of children at Rs.1,570.75ps. PW45 says about payment of house rent at Rs.15,600/- and income tax for the year 1991 to 1194-95 at Rs.62,821/-. Thus, the total expenditure is amounting to Rs.11,33,351.62ps.
20. It is seen that as per evidence of PW55 total assets found in the house of accused was Rs.7,82,387.95ps. Expenditure incurred was Rs.11,33,531.62ps. Finally, the total assets is in a sum of Rs.19,15,919.57ps. According to him the income from all sources is calculated at Rs.16,07,824.44ps. If the said amount is deducted from the assets the balance amount which is disproportionate to the known source of income would be Rs.3,08,095.13ps. It is seen 18 that on the basis of the material produced and the evidence adduced by the witnesses, the disproportionate amount to the known source of income of the accused as per prosecution is Rs.3,08,095.13ps.
21. What has to be seen here is that there are certain income, which has not been considered by the Investigating Agency and those are the income from land which was gifted to w ife of accused by her father. Since the property was changed into the name of the w ife of accused after the death of her father, the same was not accounted for by the Investigating Agency. It is also to be considered that the income from agricultural sources has been considered for only one crop per year by the Investigating Agency and considering the amount of land to an extent of 8 acres, in the normal prudent growth of crops there shall be two crops per year and if two crops are calculated per year, according to the arguments 19 of the learned counsel for accused - respondent there would not be any excess assets to the known source of income of the accused.
22. Learned counsel for respondent - accused has also contended that Streedhan amount, which was given to the w ife of accused has not been taken into consideration by the Investigating Agency and in the normal course of marital life of any person, it is but natural that wife could receive property in the form of Streedhan from her parents and in the present case it is not in dispute that father of wife of accused was owner of agricultural land of more than 8 acres with regular source of income from the same. Under such circumstances, it cannot be ruled out that the wife of accused has received certain amount of Streedhan during her marital life. Therefore, considering the Streedhan, the gold jewels seized by Lokayuktha Police amounting to Rs.92,718/-, which are described in item No.45 to 72 has been rightfully 20 taken into account by the trial Court on the basis of the evidence adduced by PW29, brother in law of accused, who has deposed that said items was given to the wife of accused in the course of her marriage and trial Court has not though accepted the said amount in toto, has taken into consideration 25% of the amount and has given deduction from the amount of Rs.1,60,000/- which was calculated for disproportionate amount. Considering the aspect of growth of agriculture property though PW1 and 18 deposed that there would be two crops per year amount to net profit of Rs.1,76,000/-, the trial Court has not considered the same, but has taken into account that profit from agriculture income to be Rs.1 lakh from Sy. No. 178/A of Navali Village. Likewise, income from agriculture property in Sy. No. 94/B of Navali Village, it is categorically stated by PW5, brother of accused, that there could be an income of Rs.55,701/- and after deducting the 21 expenses the profit of Rs.37,000/-, which has not been considered by the Investigating Officer in his report. The income from other lands in Sy. No. 94/B of Navali Village and Sy. No. 666(A) of Kannihalli Village, which is inherited through his father by accused, was shown as only Rs.19,600/- and expenditure was shown in excess. On analyzing the calculation adopted by the investigating agency, it is seen that there is no scientific method followed in making such calculation.
23. It is seen from the evidence and records that the sources of income which is shown in item Nos.1 to 18 are all pertaining to the income from salary, land, agricultural income, income received from sale of vehicles and profits received from National Savings Certificates, totally amounting to Rs.16,07,324.44. It is seen on the computation of assets from i tem Nos.1 to 22 pertaining to 22 assets from property investment, deposits, purchase of sites, purchase of vehicles, investment in Banks, investment in post office, amounting totally to the extent of Rs.7,82,387.95. The expenditures met by the accused as per the prosecution shown in item Nos.1 to 29 are pertaining to expenditures met out towards professional tax, towards KEB, towards agricultural expenditures, towards registration of purchase of property, towards payment of loan, towards payment of tax on vehicle, towards payment of loan to banks, towards expenditures made towards the daughter's marriage, expenditure met on education of children, on house rent and on income tax. The total expenditures amounting to Rs.11,33,531.62. All these sources of income, the a ssets and expenditures are borne from Ex.P.3. The panchanama drawn by prosecution. According to the Investigating Officer/PW.55, the total assets stated above, 23 collected from accused is Rs.7,82,387.95 and on calculation of the amount of expenditures and the assets, amount is Rs.19,15,919.57. Income from all the sources is Rs.16,07,824.44. On deduction of known source of income a sum of Rs.3,08,095.13/- is the assets disproportionate to the sources of income which the prosecution has made out. This Court will have to see whether the prosecution has proved the disproportionate assets to the known sources of income and whether the accused has failed to give explanation to the satisfaction of the prosecution with regard to accounts audited by prosecution on the said disproportionate sources of income.
24. In view of this, it is essential to extract the provisions of Section 13(1)(e) of the Prevention of Corruption Act,1988.
"13. Crimina l misconduct by a public servant -(1) A public servant is said to 24 commit the offence of criminal misconduct,
-
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation. - For the purposes of this section, "known sources 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."
25. As held in the case of VASANTH RAO GUHE V/S STATE OF MADHYA PRADESH reported in (2017)14 SCC 442 in para 21, it is held thus:
"From the design and purport of clause (e) of sub-clause (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would 25 be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or 26 property disproportionate to his known sources of income."
26. In the case of mis-conduct of a public servant and amassing of disproportionate assets to the know n sources of income, it is the onus on the prosecution to first prove the foundational facts and on proving such foundational facts, if explanation to the said dis- proportionate assets to the known sources of income is provided by the accused/public servant, the same will have to be considered and dealt with by the Investigating Agency.
27. In this background, it is necessary to see in the present facts of the case where prosecution has been able to make out and prove the foundational facts and whether the accused has provided the necessary explanation to satisfactorily account the said assets alleged to be disproportionate to the known sources of income. On careful appreciation of the entire 27 evidence and the material placed before the Courts, it is seen that a detailed explanation has been provided by the accused which is marked as Ex.P.190 wherein the accused has clearly stated about the income from salary savings, agricultural income, amount realized from sale of sites and land, loan taken from KEB, house loan taken from friends and relatives which is invested in construction of residential buildings.
28. The accused has also stated with regard to the property inherited from his father, assets and also w ith regard to 8 to 10 acres of land in the name of his wife Smt.Shantha which was obtained through the gift deed made by her father. It is also stated that he has purchased vehicles and 10 tolas of gold in the year 1974 and another 10 tolas were gifted by his father in law at the time of his marriage. It is also seen that accused has produced Ex.P189 wherein he has produced his income tax returns and also filed statement of information furnished by the 28 Government servant from schedule-1 to schedule-10 which has stated about the sources of income and assets of accused. On consideration of entire material placed on record, the trial Court carefully evaluated the income explained and the assets of accused based on the available records and analysis report of the investigating officer on the calculation made with regard to same.
29. It is relevant to note that in view of the judgment of the Hon'ble Supreme Court in the case of KRISHNA REDDY V/S STATE DEPUTY SUPERINTENDENT OF POLICE , HYDERABAD reported in AIR 1993 SC 313.
According to the High Court, the value of the disproportionate assets was at Rs.2,37,842/- after giving the 10% margin on the total income of appellant. As we have now held that a sum of Rs.56,240.00 should be treated as income of the appellant both on account of loan as well as gift and sale of gold 29 necklace, and added to the total income of Rs.9,43,961.87 as found by the High Court, the total income would amount to Rs.10,00,201.87. On this calcu lation, the 10% margin which the High Court itself was inclined to give would come to nearly about Rs.1 Lakh. The Hig h Court has deducted only a sum of Rs.94,396.18 by granting 10% margin on the total income. As we have now held that the 10% margin on the present calculation would be Rs.1 Lakh, a further deduction of Rs.6,000/- should be made on the 10% margin. Then the total value of the disproportionate assets would come down to Rs.28,746.72 less Rs.6,000.00 which would work out at Rs.22,746.72 which amount alone would be, if at all, the disproportionate assets.
30. In the present case deduction of 10% interest is not disputed by the learned counsel for respondent. But, while deducting the said amount 10% of amount has been given on disproportionate assets rather than total income 30 of accused by the trial Court. The trial Court has also considered the evidence of DW-1-wife of the accused where she has deposed with regard to the gift of land to her by her father which is not in dispute. The trial Court has rightfully taken one lakh rupees towards the profit of income from agricultural land.
31. It is seen that after giving deduction of some percentage on the value of assets considering the note of gifts given to wife of accused by her parents, assets as gathered by Investigating Officer would get reduced. It is not in dispute that while calculating assets by Investigating Officer, he has also included landed property and other movable gifts obtained by wife of accused as that of property belonging to accused which may not be correct calculation. Though it was contended by learned counsel for appellant that there was no explanation given by respondent-accused at the 31 time of questioning and raid, it may not be held correct in view of Ex.P.190, which is the reply given with details by respondent-accused.
32. It is also seen that Investigating Officer while calculating income from landed properties also has committed an error by taking income of accused for one crop instead of collecting income for two crops per year. It is also necessary to note by taking income from agricultural lands it has to be kept in mind that income for irrigated lands would be different from that of dry lands. In the present case admittedly lands belonging to wife of accused are irrigated lands. Therefore on overall analysis of evidence recorded and documents produced are appreciated by the trial Court and it is seen that if necessary deductions are given, then there is no asset more than known source of income of accused. Hence, question of accused giving any explanation to charge of committing 32 misconduct under the aforesaid act would not arise.
33. It is further seen that loans obtained by accused as stated by PW.12 in Ex.P.116 and P.117, has also been included by Investigating Officer as income of accused and even if these amounts are deducted, then there would be no excess asset of accused to known source of income. It is also necessary to note here that according to prosecution known source of income is R s.16,07,324-44. If income from landed properties is added along with benefits arrived by accused for having constructed his property without assistance of third party contractor amounting to Rs.55,000/- would become Rs.17,62,824/-. It could be taken as known source of income of accused. Likewise total assets of accused taken as Rs.19,15,919- 57 by prosecution, if amount of Rs.92,782/- is deducted, which is streedhan of wife of accused, 33 then it would be Rs.18,23,137-57 which should be total asset of accused.
34. Therefore even considering this aspect on a calculation of total assets minus the known source of income of Rs.18,23,137/- subtracted by Rs.17,62,824/- would amount to Rs.60,313- 57 which could have been disproportionate asset to known source of income. 10% will ha ve to be deducted as per judgment of Hon'ble Supreme Court stated supra, on the total income ie. Rs.17,62,824/- which would be 1,76,282.40. Prosecution does not make out a case of proving disproportionate asset to known source of income.
35. Under these circumstances, it is seen that trial Court has rightly appreciated material evidence and documents placed on record and has rightly come to conclusion that there is no proper evidence or reasons to believe and no proper material documents are produced by 34 prosecution to show that accused has amassed disproportionate asset more than his known source of income. In a case where prosecution has not been able to establish beyond reasonable doubt, charge of misconduct by way of acquisition of disproportionate assets to known source of income wherein it creates a doubt in the mind of Court, then, benefit will have to be extended to a ccused.
36. As seen in the present case, there are several areas w here prosecution has not accounted for source of income and proper deductions have not been given to accused. It is well established law that in cases of Prevention of Corruption Act, prosecution has to succeed by laying down all possible evidence and material to prove its case beyond all reasonable doubt. To show that it must be 'true' category and should not fall in the ca tegory of 'may be true situation'.
35
37. Hence, I answer Point No.1 in the affirmative that trial Court has considered all the material on record and has passed a reasoned order of acquittal.
38. Therefore considering all material placed on record and evidence adduced by parties, this Court is of the opinion that trial Court has rightfully considered all materials placed and has found that prosecution has not made out a case for establishing the guilt of accused. A person cannot be subjected to criminal prosecution either for a charge which is amorphous and transitory and on evidence which is conjectural or hypothetical. Therefore, the charges and evidence of prosecution lacked certitude, precision and un-ambiguity.
39. Therefore, I am not inclined to agree with the submissions of learned counsel for appellant to reverse the findings of trial Court. 36 Hence, Point No.2 is answered in the negative. Accordingly, I pass the following Order:
ORDER Appeal is dismissed. Impugned judgment and order passed by trial Court is affirmed.
Sd/-
JUDGE Ckk/MRK/VK/HMB