Bangalore District Court
State By Karnataka vs Sri.M.C.Prakash on 30 March, 2022
1
Spl.C.C. No.208/2009
KABC010195032009
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND THE
SPECIAL COURT FOR TRYING OFFENCES
UNDER THE PREVENTION OF CORRUPTION
ACT, AT BENGALURU CITY (CCH-78)
DATED THIS THE 30 th DAY OF MARCH 2022
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE &
THE SPECIAL JUDGE, BENGALURU CITY.
SPL. C.C.No. 208/2009
COMPLAINANT: State by Karnataka
Lokayuktha Police.
(Rep. by Public Prosecutor)
/VS/
ACCUSED: Sri.M.C.Prakash,
S/o Late Chikka
Thammegowda,
Aged 70 years,
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Spl.C.C. No.208/2009
Retd.Executive Engineer,
Bangalore Mahanagara
Palike, Bharathi Nagara
Zone, Bangalore.
R/at No.12, 13th Cross,
21st Main Road, 1st Stage,
Venkaeshwara Extension,
B.T.M.Layout, Bengaluru.
(Rep by Sri.
B.A.D.,Advocate)
TABULATION OF EVENTS
01. Date of commission of offence : 08-11-2005
02. Date of report of offences to
the Police Station (FIR date) : 31-08-2009
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : Lokayuktha Police.
06. Nature of offence complained : U/S.Sec. 13(1)(e)
R/w Sec.13(2) of
Prevention of
Corruption Act 1988.
07. Date of submission of
charge sheet : 21-10-2009.
08. Date of commencement of
recording of evidence : 25-11-2016
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Spl.C.C. No.208/2009
09. Date of closing of evidence : 26-09-2019
10. Date of judgment : 30-03-2022
11. Opinion of the Judge in
respect of the offences. : Accused is
acquitted.
*****
JU DG ME N T
1. The Police Inspector, Karnataka Lokayuktha, City Division, Bengaluru has filed the charge sheet against the accused for the offences punishable under Secs. 13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.
2. The nub of the prosecution case being that, when the accused was serving as the Executive Engineer in B.B.M.P., Bengaluru, as a public servant for the check period dtd. 01-04-1990 to 08-11-2005 had acquired properties and assets disproportionate to his 4 Spl.C.C. No.208/2009 known source of income and on or about 08- 11-2005 he was found in possession of pecuniary resources and properties both in his and his family members names, which was to the tune of Rs. 75,66,267.08 and expenses of their family for the said check period was found to be Rs. 14,48,505/- and his known source of income for the check period was Rs. 44,79,010.79. So, the disproportionate assets was to the extent of Rs. 45,35,761.79 which accounted for 101.26% for his known source of income to which the accused could not satisfactorily accounted for and thereby, the same amounted to misconduct and has committed the above said offences.
3. After securing the presence of the accused 5 Spl.C.C. No.208/2009 before the Court, as he came to be enlarged on regular bail, as per the mandatory compliance, prosecution papers were supplied to him. This accused also moved an application seeking for discharge, which was heard on merits and came to be dismissed twice. As there was a prima-facie materials to frame charges against the accused, this Court framed the charges and read over to him in his known language, to which, he pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution in all has examined PWs.1 to 11, exhibits at Ex.P.1 to P.78 came to be marked. No material objects came to be identified. On the other hand, as there was incriminating evidence found against 6 Spl.C.C. No.208/2009 the accused, the statement as contemplated under Sec.313 of Cr.P.C. came to be recorded. The accused denied the same, per contra, also filed his separate written statement under Sec.313(5) of Cr.P.C. and chose to lead both oral and documentary evidence. In pursuance of the same, the accused got examined DWs. 1 to 28 and exhibits D.1 to D.55 came to be marked.
5. Heard the arguments.
6. During the course of arguments, the learned defence counsel submitted his written arguments with list and citations. I have gone through them carefully in detail.
7. The fresh points that crop up for my consideration are as follows:
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Spl.C.C. No.208/2009
1) Whether the prosecution proves beyond all reasonable doubt that, when the accused being the public servant, was working as the Executive Engineer, BBMP, Bengaluru for the Check period from 01-04-1990 to 08-11-2005 had amassed properties and assets disproportionate to his known source of income and on or about 08-11-2005 when the search and raid of his premises/house and office took place, was found in possession of pecuniary resources and properties both in his and his family members names was to the tune of Rs. 75,66,267.08 and expenses of his family for the said check period came up to Rs.
14,48,505/- and that during the said period, his known source of income was Rs. 44,79,010.79 only, but the accused was found in possession of assets/properties disproportionate to his known source of income which came up to Rs. 45,35,761.79 which is 101.26% above his known source of income, wherein this accused could not satisfactorily account for thereby, 8 Spl.C.C. No.208/2009 that amounts to commission of criminal misconduct whereby he has committed an offence punishable under Sec.13(1)(e) r/w Sec.13(2) of P.C.Act, 1988?
2). What order?
8. After carefully going through the materials available on record and also considering the facts and circumstances of the case, my findings to the above points are as under:
POINT NO.1: In the negative.
POINT NO.2: As per my final order
for the following:
REASONS
POINT NO.1:
9. The prosecution on the basis of the final report submitted by the P.W.No.3 has taken sanction order against the accused and filed the charge sheet making allegations that when the AGO was the Executive Engineer 9 Spl.C.C. No.208/2009 with BBMP, Bharathi Nagar Zone has amassed income and wealth disproportionate to his known source of income, which was to the tune of Rs. 45,35,761.29ps. Which amounts for 101.26% and so filed charge- sheet under Secs. 13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988. Quite naturally, the IO who has filed the charge sheet has given what was the check period which they have considered in order to arrive at the calculation to show that the alleged disproportionate wealth of the AGO, the check period is considered as 01-04-1990 to 08-11-2005 and according to the IO, the assets of the accused and family members comes to Rs. 75,66,267-08. Likewise their expenditure for the said period was Rs. 14,48,505/- and the total income was Rs. 10
Spl.C.C. No.208/2009 44,79,010.79 ps. When the assets and expenditure are totalled, that total sum has to be deducted from the income of the AGO and his family members. Which will be disproportionate wealth of the accused.
10. During the course of arguments, the Learned Public Prosecutor contended that the accused has entered into the benami transactions only to show that acquiring of those assets were on account of lawful sources. During the course of investigation conducted by both the PWs.1 and 3, they were also of the similar opinion that most of the assets acquired and income of the AGO and his family members were on account of benami transactions. They did not forget to mention that when father and mother-in-law 11 Spl.C.C. No.208/2009 of the AGO had no source of income, properties were purchased in their names and during their life time only, they have entered in to testamentary dispossession making bequests of the purchased properties either in the name of the wife of the AGO or his children. So, the prosecution gave a signal stating that as long as these benami transactions or ostensible ownership of the accused are not taken into consideration, the prosecution will not be in a position to demonstrate and establish before the Court that the accused has not only committed misconduct, but is the root cause for causing loss to the exchequer and has also swindled the public money.
11. When the source report submitted by 12 Spl.C.C. No.208/2009 PW. 1 at Ex.P. 1 is looked into, no doubt, it is the first in point of time, in that document, the PW. 1 has gathered some information as to the assets, expenditure and income of the AGO and his family members. This PW. 1 makes it clear in his examination-in-chief that on the basis of the credible information received by him, he suspected the AGO having amassed the wealth disproportionate to his known source of income. Hence, he sought permission from his higher authorities and once permission was granted, Ex.P. 3 FIR was registered and on the basis of Ex.P. 3, search warrant was obtained from the competent Court in respect of the house of the AGO and his office address. Subsequently, search and raid of the AGO's premises took place, wherein two 13 Spl.C.C. No.208/2009 panchanamas were drawn, one at the house, another at the office place of the AGO, wherein no articles and documents were found in the office chambers of the accused. But, the household articles, movables, documents and some amount was found in the house of the AGO which later came to be seized. So, with this back ground, the prosecution is before this Court making allegations that the accused being a public servant, during the check period could not have earned so much either as the income or could not have acquired those assets. Hence, it amounts to commission of the alleged offences.
12. As usual, in this type of disproportionate assets case, the main trump card for the 14 Spl.C.C. No.208/2009 accused is, the alleged defect in the sanction order and then attacking the investigation on the premises that it is not all that lawful and finally raking up the contention of benami transactions. But this benami transaction shall have to be established by the prosecution beyond all shadow of doubt.
13. In the instant case, the defence counsel goes a step further and also objects to the investigation conducted by the PWs.1 and 3 on the ground that in spite of the accused furnishing Ex.D. 4 and D.5, which are the schedules in 23 volumes, they have been completely ignored by the IO when he has filed the final report. According to the AGO, when a notice was caused by the IO calling for the explanation in respect of acquiring the 15 Spl.C.C. No.208/2009 assets, expenditure and income are concerned, but they have not been carefully examined and before examining the schedule furnished by the accused, a final report has been presented with a preconceived notion. Hence, according to the accused, the whole concept of either conducting the investigation or coming to the conclusion that there is amassing of wealth which amounted to disproportionate of assets to the known source of income of the accused has been thrown to shackles.
14. During the course of arguments, the learned defence counsel relying upon a decision reported in 1992(4) SCC 45 CRI 801 (M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad), 16 Spl.C.C. No.208/2009 vehemently argued that in this case, the Hon'ble Supreme Court has held in clear terms that burden of proving an asset to be benami is clearly on the prosecution. The Prosecution has to establish that how the said transaction is benami. According to the defence counsel, the Hon'ble Apex Court makes it very clear that the burden of proof lies on the prosecution. So, that has to be discharged by the prosecution. He also went on to submit that it is not the mere acquisition of properties that constitutes an offence under Sec.5(1)(e), but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. Further, the prosecution shall have to prove the concept of benami transactions which should contain the 17 Spl.C.C. No.208/2009 following ingredients. They are:
(1) The prosecution must establish that the accused is a public servant.
(2) The nature and extent of the pecuniary resources of property which were found in his possession.
(3) It must be proved as to what were his known sources of income and lastly, (4) It must also prove that such resources or properties found in the possession of the accused were disproportionate to his known source of income.
15. No doubt, when the ratio laid down by the Hon'ble Apex Court in the said decision is kept in mind and analyzed in the light of both ocular and documentary evidence, the charge-sheet which contains the calculation in respect of assets, income and expenditure show that the parents of the accused and the 18 Spl.C.C. No.208/2009 mother-in-law Smt.Yashodamma, they have also been roped in, to show that this AGO has purchased the properties in these persons names. Likewise, the defence counsel relied upon another decision reported in AIR 1977 SCC 796 in the case of Krishnanand Agnihotri Vs. State of M.P., wherein the Hon'ble Apex Court held that "Evidence Act(1872), Ss.101-104- Benami-Onus and proof- Nature of-Onus of establishing a transaction as benami is on the person who asserts it. By taking cue from this decision, it was his limb of arguments that as the prosecution has completely relied upon the assets, expenditure and income of the parents of AGO and his mother-in-law, the burden is heavy on the prosecution to prove the same. 19
Spl.C.C. No.208/2009 He also further went on to submit before the Court that if the properties acquired by his parents and mother-in-law are excluded from the calculation, then there will not be any disproportionate assets of the accused at all. So, the present case cannot be instituted against him.
16. According to the defence counsel, the concept of family which is tried to be wrongly defined by the prosecution only includes AGO and his children, does not include either his parents or mother-in-law. So, according to the AGO, through his explanation in the form of schedules, he highlighted before the IOs as to the independent source of income possessed by his parents and mother-in-law 20 Spl.C.C. No.208/2009 Smt.Yashodamma, they were ignored by both the IOs. He also highlights the admissions given by these IOs. in their respective cross- examinations. I will discuss the same while appreciating them under Sec.3 of the Indian Evidence Act. Likewise, according to the AGO, the assets, expenditure and income of his wife Smt.Indumathi is also not properly considered, so also the educational expenses which she meted out for the up bringing of her children has not been considered by the IO. So, with this background, the Court will have to appreciate the oral and documentary evidence.
17. Coming to the testimony of PW.1 by name M.G.Subba Rao who was the Inspector of Police and on 5th November 2005, 21 Spl.C.C. No.208/2009 according to him, he receives an information about the AGO acquiring assets and properties disproportionate to his known source of income. According to this witness, he conducted an enquiry and the very day, he submitted his report to the S.P., Karnataka Lokayuktha, Bengaluru. That document is marked as Ex.P.1. According to this person as per Ex.P. 1, the expenditure of the accused was taken as Rs. 10 lakhs and assets at Rs. 86 lakhs and the income of Rs. 16 lakhs initially. So, at that time, this PW. 1 felt that the AGO had disproportionate assets worth Rs. 80 lakhs which amounted for 500% of his known source of income.
18. Further, according to this witness, he receives a direction from his higher officer, 22 Spl.C.C. No.208/2009 then FIR at Ex.P. 3 was registered and Ex.P. 2 is the memo. Subsequently, he obtained search warrants at Ex.P. 4 and 5, he takes the assistance of panchas, who are at Cws.2 to 4 and on 08-11-2005 at about 6 a.m., he conducts the raid on the house of the AGO. This witness in his examination-in-chief spoken as to what were the articles found in the house of the AGO, which is at the BTM Layout, seized the articles and documents under a mahazar which was marked at Ex.P.
9. Likewise, there is an evidence in his examination-in-chief as to, they went to the office chambers of the accused and found no articles and documents. Ex.P.10 another panchanama was drawn in respect of that search and seizure. His further examination- in-chief is to show before the Court that he 23 Spl.C.C. No.208/2009 has conducted the investigation in part, collected documents and lastly he has handed over further investigation to CW.42.
19. Coming to the evidence of PW. 2 by name Dr.S.Subramanya, who was the Commissioner of BBMP in the year 2007. According to this person, he issued the sanction order in respect of the accused which is at Ex.P. 20. In his examination-in- chief, he makes out as to what were the documents supplied to him along with the requisition letter by the ADGP, Lokayuktha and how he has scrutinized them. Lastly, according to this witness, he comes to the conclusion on the basis of the available materials that the accused has involved in amassing of wealth, which according to him 24 Spl.C.C. No.208/2009 is ill gotten, which are disproportionate to his known source of income and hence, he issued Ex.P. 20.
20. Coming to the evidence of PW.3 Prasanna V.Raju, who was also the Inspector of Police in the year 2007, he conducted the further investigation of this matter by collecting the file from PW. 1 on 18-03-2008. This gentleman witness also has spoken into about the letters received from various departments and offices, such as Asst.Director of Horticulture, likewise, SBM, BTM layout branch, LIC, Department of Posts, etc. In his examination-in-chief, he concentrates on what were the documents collected by him in respect of proving the allegations made against the accused. 25
Spl.C.C. No.208/2009 Finally, he gives evidence that on 05-02- 2009, he has prepared the final report and submitted the same before the ADGP for getting the sanction order and he receives the sanction order as per Ex.P. 20 and files the charge sheet on 31-08-2009.
21. According to PW.3, he was instrumental in collecting the property documents of the house No.12 at BTM Layout, the documents in respect of Site No.101/2A, 3/1 of Thavarekere, property bearing katha No.7 at Herohalli Village, house list No.17 at Herohalli Village, etc. According to this witness, he collected all those documents and that convinced him, that the accused has committed the offence of misconduct. But, one notable aspect which can be found 26 Spl.C.C. No.208/2009 in that, on 06-09-2008 according to this witness he receives the schedules No.1 to 23 which consists of 623 pages from the department, where the accused was working. According to this witness PW. 3, those documents were received by him after the final report was prepared. He also gives evidence as to what were the explanations rejected by him and according to him as there are sufficient materials to hold that the accused has amassed ill gotten wealth, so he has to be prosecuted under Sec.13 (1)(e) and Sec.13(2) of Prevention of Corruption Act, 1988. Ultimately, the burden on the prosecution to prove that the explanation offered by the accused in respect of those properties was not satisfactory or could not have been considered as a lawful source. 27
Spl.C.C. No.208/2009 Likewise, the Court is also called upon to look into the lawful source either for purchasing or for spending the amount which was with the accused and the family members.
22. Coming to the evidence of PW. 4 by name Pranesh Kumar, who was the Asst. Engineer in the Technical Wing of Karnataka Lokayuktha, Bengaluru. He spoke to the fact that as he has received a requisition letter on 21-04-2008 from SP, Lokayuktha to assess the valuation of the building belonging to the accused. According to him, he issued notice to the Lokayuktha Police intimating them, the inspection date is on 31-05-2008. He visited the house of the accused which was at BTM Layout, Bengaluru and valued the 28 Spl.C.C. No.208/2009 building. Likewise, on the same day he visited another house of the accused at Thavarekere Layout, Madiwala, Bengaluru for valuation purpose and he has submitted his report at Ex.P. 64. According to this witness, the BTM Layout house was valued floor wise i.e. ground floor was valued at Rs.5,74,000/-, mezzanine floor as Rs.7,85,000/- and likewise, the house situated at Madiwala Tavarekere Layout was valued at Rs. 18,12,000/-. So, the limited purpose for which the assistance of PW. 4 was taken, according to him, he has fulfilled the task.
23. Coming to the evidence of PW. 5, Jayadeva Prakash, who was the Joint Director of Statistics, Karnataka Lokayuktha 29 Spl.C.C. No.208/2009 during the year 2007. He also spoke to the fact that he received a requisition from the SP, Karnataka Lokayuktha to submit a report relating to the food expenditure of the accused and his family members for the period from 05-07-1983 to 08-11-2005. Along with that covering letter, he also received information in the prescribed format. So, while preparing the report, he has considered the pay commission report of 1985-86 of the Government Employees Karnataka, National Sample Survey of Karnataka for the year 1987-88 and he has prepared a report at Ex.P. 54 and Ex.P. 53 is the covering letter.
24. Coming to the evidence of PW. 6, by name Guru Prasad H.R., who was the FDA 30 Spl.C.C. No.208/2009 attached to the department of Public Instructions, whose assistance was sought by the PW. 1 to act as a mahazar witness. This witness given evidence that on 08-11- 2005, he with CW.3 and 4 went to the house of the accused at BTM Layout and also spoke about how Ex.P. 9 and 10 were drawn. According to this PW. 6, the entire house of the accused was searched, articles were seized, panchanama at Ex.P. 9 came to be drawn, he has also affixed his signature at Ex.P. 9. Then, according to this witness, they also reached the chambers of the accused, but found no items, so Ex.P. 10 was drawn and he identified his signature on that document.
25. Coming to the evidence of PW. 7 by name 31 Spl.C.C. No.208/2009 Smt.Shanta Kumari, she was also the Asst.Director of Agriculture, Channapattana Taluk in Ramnagara District and she received a letter of requisition from PW. 3 on 17-01-2008 to submit a report in respect of agricultural income of the AGO. According to this lady, she verified the records of rights pertaining to the land bearing Sy.No. 30/1 measuring 3 acres 3 guntas and Sy.No. 30/2 measuring 1 acre situated at Rampura Village, Channapattana Taluk. Said two lands were stood in the name of Smt.Indumathi wife of the accused. According to this expert, she calculated the annual agricultural income for the period from 1991-92 to 2003-04 in a total sum of Rs. 1,02,403/- and has submitted her report at Ex.P. 63.
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26. Coming to the evidence of PW. 8 by name Rudresh, who was the Sr.Asst. Director of Horticulture at Channapattana and he also spoke about furnishing report in respect of agricultural income in respect of land bearing Sy.No. 30/1 and 30/2 of Rampura Village for the period from 1991-92 to 2005-06 stood in the name of Mrs.Indumathi. According to this witness, he submitted his report and identified his signature on that document.
27. Coming to the evidence of PW. 9 by name M.S.Ramesh, who was the Asst.Director of Horticulture, Zilla Panchayath, Srirangapatna and he was asked by the PW. 3 to furnish the Horticultural income of the AGO from all his 10 survey numbers in a total extent of 16 acres 22 guntas of land for 33 Spl.C.C. No.208/2009 the check period. There is also evidence given by this witness that his Asst. Horticulture officer Mr.Shashidar was deputed to the lands of the AGO to hold spot inspection. There is a reference given by this witness that there were 81 middle aged coconut trees, 12 tamarind trees in those lands. According to this witness, he assessed the annual income of the accused from the garden land on the basis of their package of practice and rate list obtained from the APMC and Hopcoms, Mandya. According to this witness, as per Ex.P. 49, a report was submitted to the Lokayuktha for further action.
28. Coming to the evidence of PW. 10 by name H.Nagaraja, who was the Asst.Director 34 Spl.C.C. No.208/2009 of Agriculture at Srirangapatna. He was also asked to submit annual income of the lands belonged to the accused and his family members pertaining to them situated at Srirangapatna. It is his evidence that, he determined the annual income of the said lands by considering the APMC price of agricultural products from 1983 to 2005 and also agricultural income of the sugarcane by considering its price from 1983-2005 issued by Mandya Sugar Factory for the check period. According to this witness, the net income of the accused and his family members were Rs. 57,70,379/- for the check period. In this regard, he has submitted Ex.P. 50 to the Karnataka Lokayuktha.
29. Lastly, coming to the evidence of PW. 11 35 Spl.C.C. No.208/2009 by name N.B.Mahadevaiah, who was the FDA who also acted as pancha to Ex.P. 4. According to this witness, as per the instructions of PW. 1, they went to the house of the accused and also conducted raid and search. According to this person, in his presence, Lokayuktha prepared inventory and articles were seized,which are at Ex.P. 67 and he identifies his signature on the same. According to this witness, he also singed the panchanama at Ex.P. 9 in the said house. So also, he was the witness to another mahazar at Ex.P. 10 which was drawn at the office chambers situated at Bharathinagar.
30. Initially, no doubt the prosecution will have to discharge its burden either in respect of proving benami transactions or in respect 36 Spl.C.C. No.208/2009 of showing before the Court that the documents collected by them did show before the Court that the accused had clandestinely entered into such property transactions by camaflouging the same by purchasing in the name of his mother-in-law and parents. The special statute i.e. the Prevention of Corruption Act, 1988 provides that the presumption available to the prosecution in respect of certain aspects while proving the guilt is a rebuttable in nature. So, the accused is also entitled to take the burden of proving/disproving that both the ocular and documentary evidence placed by the prosecution are not cogent and cohesive.
31. When this Court recorded the statement of the accused under Sec.313 of Cr.P.C., 37 Spl.C.C. No.208/2009 having denied the incriminating evidence, the accused vide his written statement under Sec.313(5) of Cr.P.C. filed before the Court highlighting the fact that there were 6 agricultural lands that stood in the name of his mother-in-law Smt.Yashodamma. In spite of highlighting these facts in Ex.D. 4 and D.5 which are the schedules, the prosecution/IOs. virtually have not looked into this vital aspects. Again this AGO in his written statement filed under Sec.313(5) of Cr.P.C. took up another contention that when Ex.P. 1 was sent to ADGP/City Division, Karnataka Lokayuktha for permission to lodge Ex.P. 3, the PW. 1 has not undertaken proper enquiry. According to this accused, had this PW. 1 were to have conducted the proper preliminary enquiry, he would have 38 Spl.C.C. No.208/2009 come to know of the fact that most part of the agricultural lands, sites and buildings which forms the assets stood in the name of his parents and his mother-in-law Smt.Yashodamma. According to this AGO, so far as income are concerned, they have been wrongly considered and some of the assets and expenditure of his parents and mother-in-law have been added to the total only to see that both the assets and expenditure looks on a higher side. So, it was his earnest appeal before the Court that if the assets, expenditure and income of his parents and mother-in-law are excluded from the source report Ex.P. 1, then Ex.P. 3 FIR have no legs to stand. So, having taken this serious contentions and also sought permission to lead both ocular and 39 Spl.C.C. No.208/2009 documentary evidence, in all he examined total 28 witnesses at DW.1 to 28.
32. The first witness on his side DW. 1 by name Ananthanarayan gave evidence that he was a Secretary in Melapura Grama Panchayath between 2005-2010. This witness claims to have had the acquaintance with this accused and this accused is the brother of one Neelakanta. According to DW. 1, said Neelakanta had asked for issuance of license for running a poultry farm in his property as the accused family i.e. his father and children were running a diary, sheep breeding and poultry farm. According to this DW. 1, he undertook inspection and issued poultry farming license which is at Ex.D. 7. 40
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33. Coming to the evidence of DW. 2, witness by name Ramachandra, he was also the Secretary attached to Melapura Milk Producers Co-operative Society, who claims to have known the family of the father of the accused. According to him, accused brother by name Neelakanta was supplying milk to their diary since 2005 regularly. At their request, he had issued the certificates which are at Ex.D. 9 and 10.
34. Coming to the evidence of DW. 3 by name Suresh Nayak who was a Gardener and who was running a nursery at Bommanahalli and this accused was visiting his nursery. According to this DW. 3, he shifted his nursery to the site standing in the name of AGO's daughter Kum.Harshitha and 41 Spl.C.C. No.208/2009 there was a rent agreement which this witness had produced, that came to be marked at Ex.D. 11.
35. Coming to the evidence of DW. 4 by name Venkatesh, according to him, he knows the accused and his father name is Chikka Thammegowda. It is the voice of this witness that Chikka Thammegowda was an agriculturist besides that, he was running a diary, sheep breeding, shamiyana business and money lending. This witness claims to have known this family of Chikka Thammegowda since his childhood. In the year 2004-05, there was a partition effected in the family of Chikka Thammegowda and that Chikka Thammegowda was having a house at their village and he knows that 42 Spl.C.C. No.208/2009 family very well.
36. Coming to the evidence of DW. 5 by name Chowdegowda, according to this person, he was well acquainted with the accused and his property affairs. This witness also claims that he had a good rapport with Chikka Thammegowda, who was an agriculturist and besides that he was running poultry farm, dairy, sheep breeding, money lending business and shamiyana hire business. According to this DW. 5, his father used to borrow loan from Chikka Thammegowda whenever they were in need of it. This Chikka Thammegowda was having a house at Melapura and during the year 1991, he has constructed a house at BTM layout, Bengaluru and in the year 2000, he 43 Spl.C.C. No.208/2009 has also constructed first floor over that BTM layout property. So, he is aware of these events. According to this witness, the value of that BTM Layout was Rs. 7 to 8 lakhs.
37. Coming to the evidence of DW. 6 by name Shantha Prasad, who is the classmate of AGO. According to this witness, on 20-05- 1983, he was an invitee to the marriage ceremony of this AGO and claims to have presented a pressure cooker worth Rs. 300/-. According to this witness, he also went with other friends and other friends also offered some presents to the accused at his marriage function. The said marriage took place at Chandra Sagar Kalyanamantapa, Ashoka Pillar, Jayanagar, Bengaluru. 44
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38. Coming to the evidence of DW. 7 by name Srikanta Swamy.M. who is the classmate of the accused, who also attended the marriage ceremony of the accused and presented a Ganesh idol with mantap worth Rs. 150/-. He also given the evidence that there were other friends, who also offered separate presents to the accused and his wife on that occasion.
39. Coming to the evidence of DW. 8 by name Viveknandan S.T. who was the tenant of this AGO from May 2005 to May 2013. He spoke about the extension of the lease agreement between him and the accused and this lease agreement was executed on behalf of his company in which he was working. Through this witness, the said lease 45 Spl.C.C. No.208/2009 agreement Ex.P. 13 and P.14 came to be marked. According to this witness, in the ground floor of that building, one Mr.Kasilingam was also a tenant, he was working in IBM company and he had also entered into lease agreement with the accused. Likewise, one more tenant by name Mr.Avinash Venkata Reddy, Narasimha Rao and Subramani were also in occupation of different portions of that building and through this witness, their lease agreements Ex.D.13 to 16 are marked. So, one can understand that why this DW8. was got examined by the AGO.
40. Coming to the evidence of DW.9 Avinash Venkata Reddy who was also a tenant of the AGO and he identifies his signature at 46 Spl.C.C. No.208/2009 Ex.D.14. This witness has spoken about his colleagues and other tenants by name Vivekananda and Kasilingam were staying together in the same building as tenants.
41. Coming to the evidence of DW.10 by name Ramesh, who was a Goldsmith running a jewelry shop in the name of Aswathlakshmi Jewelry at Jayanagar 4th T.Block. According to this witness, he identifies 16 receipts issued from his shop and that belonged to the accused family. So, through this witness, Ex.D. 17 to 32 came to be marked.
42. Coming to the evidence of DW. 11 by name Dr.B.Anand, who is the friend of the accused and the brother of the accused by name Neelakanta had appeared before this 47 Spl.C.C. No.208/2009 Doctor with a request to issue a certificate in respect of his diary income by considering the animals possessed by him and his family. According to this specialist, he visited Arakere Village in Srirangapatna Taluk and took inspection of the premises and according to this witness, he considered the animals reared by the accused and his family and issued Ex.D. 33. So, the limited role of Ex.D. 11 was to issue income certificate in respect of diary farming of Chikka Thammegowda's family.
43. Coming to the evidence of DW. 12 H.A.Kemparaju, who is the retired Deputy Conservator of Forest and he claims to know the family of the accused. During his tenure as the Asst. Conservator of Forest at Mandya 48 Spl.C.C. No.208/2009 Sub-division, Neelakanta has consulted him for preparing an estimate of the trees grown in his land. Soon after the receipt of the application, he deputed his Taluk level officials to hold an inspection about the variety of trees grown in that land. So, on the basis of the local inspection, he had issued a report at Ex.D. 34.
44. Coming to the evidence of DW. 13 by name Kasilingam, who was the tenant of AGO, who has executed a lease agreement at Ex.D. 14 and this witness identifies his signatures on that document and also identifies the other lease deeds at Ex.D. 15 and 16 and his signatures on them as he was a witness to the said lease deeds pertains to Avinash Venkatareddy, Vivekananda and 49 Spl.C.C. No.208/2009 Subramani.
45. Coming to the evidence of DW. 14 L.K.Shivananda, who is the friend of the accused and deposed that he has a daughter by name S.Rakshitha and a son by name S.Rajath. According to this witness, during the childhood of his children, he used to leave them in the Baby Care and day care of Smt.Indumathi, the wife of the accused for the period from 1990-91 to 1996-97 and 1993-94 to 2000-2001. His both children used to attend this Baby Day care. According to this witness, he used to pay Rs. 1600- 2500 towards day care charges to Mrs.Indumathi and there was an increase of Rs. 100-200 per year in this professional charges, which came to be claimed by 50 Spl.C.C. No.208/2009 Indumathi.
46. Coming to the evidence of DW. 15 by name Shekar, who is a Civil Contractor and according to him, he had children by name S.Rajesh, S.Bhavana, who was born on 13- 02-1986 and 10-12-1988 respectively and these two children were also used to attend the Baby Day Care Centre run by Mrs.Indumathi from 1990- 1997.
47. Likewise, DW.16 Nethaji who also spoke to the fact that he had two sons by name Karthik and Shrustik and they have also attended the Day Care Centre run by Mrs.Indumathi from 1996 to 2008. This witness has spoken that he used to pay monthly charges of Rs. 2000/- to Rs. 3000/- 51
Spl.C.C. No.208/2009 with periodical increase of Rs. 300/- to Rs. 400/- per year to Mrs.Indumathi.
48. Coming to the evidence of DW. 17 by name Ramakrishna, according to him, he knows the accused and the accused is his uncle's son-in-law. After the death of his mother, they started residing at their uncle house situated at Kumara Park, Bengaluru and in the year 1974, he joined his service in BBMP as a work inspector, his uncle's daughter namely Indumathi was given in marriage to this accused on 20-05-1983. At the time of said marriage, his uncle had given 1300 gms of gold, 10 kg. of silver and cash of Rs. 2 lakhs as Sthreedhana. According to this witness, his father presented a golden necklace and a pair of bangles to 52 Spl.C.C. No.208/2009 Smt.Indumathi and his father got prepared the said golden articles out of his mother's old golden ornaments at Chennapatna. Likewise, furniture sets, house hold articles and utensils were also given to the AGO as customary presents.
49. Coming to the evidence of DW. 18, K.V.Gopal, who was a contractor and the friend of the accused and knows him. According to this witness, his father was a civil contractor and used to prepare estimates. In the year 1991, his father had taken a building on rent situated at No.11, 20 B Main, Venkateshwara Layout, Old Madivala, Bengaluru for storing the building materials and was paying monthly rent of Rs. 6000 to that building to the father of the 53 Spl.C.C. No.208/2009 accused. An affidavit at Ex.D. 35 came to be marked through this witness.
50. Coming to the evidence of DW. 19 Jai Shankar, who is the relative of this accused. According to him, he knows a person by name Mr.Ramu and there was a sale agreement between said Ramu and the accused, under that agreement, Ramu had given sale consideration of Rs. 5 lakhs to the accused and as this witness was an attesting witness to that document Ex.D. 36 came to be marked.
51. Coming to the evidence of DW. 20 Bharath Kumar C.R., who claims to have known the accused and this person spoke about the earlier sale agreement which is 54 Spl.C.C. No.208/2009 supposed to have been entered into between the AGO and Ramu. This witness spoke that under Ex.D. 36, Rs. 5 lakhs was paid to the AGO and in this regard, this witness has filed a separate affidavit which is at Ex.D. 37.
52. Coming to the evidence of DW. 21 by name Neelakanta, according to him, he is the brother of the AGO and the thrust given in his examination-in-chief is that his father was not only an agriculturist, but also was a money lender. According to this witness, his father was also doing animal husbandry and sheep breeding. According to this witness, his father Chikka Thammegowda was selling the cattles and getting rents from different tenements and earned a sum of Rs. 2 lakhs to 4 lakhs per year. This witness 55 Spl.C.C. No.208/2009 emphatically makes it clear that during the check period, Chikka Thammegowda earned more than Rs. 1,60,00,000/- as their revenue/income. There was one person Mallappa has prepared his father's agricultural income statement and also has spoken about the other avocations claims to have been professed by Chikka Thammegowda. This witness states that information provided by him already forms part of the schedule submitted by the AGO to the IO in the form of documents and statements. According to this witness, there were promissory notes produced by them to show that the persons who have obtained the loans have executed them, which establishes that Chikka Thammegowda was a money lender with license issued by the competent 56 Spl.C.C. No.208/2009 authority. Chikka Thammegowda had borrowed a loan of Rs. 9,60,000/- from Corporation Bank, J.P.Nagar Branch, Bengaluru and further that there was a license issued in his favour for doing a money lending business. There is also an evidence of this witness that, how the marriage of children of Chikka Thammegowda came to be performed and what were the customary presents given in the marriage functions.
53. According to this DW. 21 Kum.Harshitha who is the daughter of Prakash was presented with 500 gms. of gold, 3 kg. of silver and Rs. 50,000/- cash by his mother. Likewise, Chikka Thammegowda gave a sum of Rs. 1,00,000/- to Harshitha towards her 57 Spl.C.C. No.208/2009 marriage expenses. Likewise, a sum of Rs. 40,000/- was also given to Shashwatha towards his educational expenses. So far as the marriage of AGO was concerned, his in- laws have given gold weighing 600 to 700 gms., silver weighing 3 kgs including silk sarees. Chikka Thammegowda, father of the AGO is supposed to have given an amount of Rs. 7 lakhs in that marriage function to the AGO. Likewise, his further examination-in- chief is to disclose the fact that Chikka Thammegowda has constructed a house situated at BTM Layout and another house at Tavarekere and all the house hold articles found in those houses belongs to Chikka Thammegowda and they have prepared an inventory containing the household articles. Through this witness Ex.D. 42 came to be 58 Spl.C.C. No.208/2009 marked.
54. Coming to the evidence of DW. 23 by name Prakash, he claims to have known the accused and in the month of November 2005, he was sent by his employer Hemavathi to the house of the accused at the BTM layout, where the accused shown him some electronic house hold articles, so by observing the said electronic articles, he assessed the approximate value of the said articles and other 3 persons present in the house have also assessed the other household articles and one Shiva Kumar has prepared the mahazar and he issued a report at Ex.D.43. This Ex.D. 43 was answer to Ex.P. 9 wherein PW. 1 with two mahazar witnesses when they conducted the raid, 59 Spl.C.C. No.208/2009 seized the household articles and documents found in the house of the accused.
55. Coming to the evidence of DW. 24, he was the carpenter, he was deputed to the house of the accused to value the wooden articles and furniture found in the house of the accused. He having taken inspection, prepared a report at Ex.D. 43 along with DW.
23. All these private actions were taken on the part of the accused in response to Ex.P. 9, P.10 and P.14.
56. Coming to the crucial evidence of DW. 25 by name Smt.Indumathi, she is the wife of the AGO. I have used the word crucial evidence, because as per Ex.D. 4 to D.5 and the explanation offered by the AGO to the notice caused by the PW. 3 was to show 60 Spl.C.C. No.208/2009 before the Court that this DW. 25 has her own source of income from running tutorial, baby care centre, tailoring etc. Out of the major part of the assets and income are concerned, DW. 25 claims in respect of those properties including gold and silver forms a substantial part. This lady claims to be the better-half of DW. 28. According to her, T.R.Venkataramaiah was her father, who was also an Assistant in BBMP Revenue Department, her brother Govindaraju is a Chief Engineer in BBMP and their family had 8-10 acres of garden land inherited from her mother's side. She had a sister by name Pushpalatha, she was married to one H.T.Bettegowda and he was also a Chief Engineer in BBMP. This lady's marriage took place on 20-05-1983 and after her marriage, 61 Spl.C.C. No.208/2009 she started residing with her husband in her father's house situated at Jayanagar 9th Block. According to DW. 25, she is a B.Sc. Graduate, she knows typing, she worked in Udaya Institute of Commerce, Vasanthanagar, Bengaluru for a period of 5 years as an instructor. According to her, she took training in tailoring with Sharada Sthree Samaja situated at Kumarapark, Bengaluru. From the year 1982 and 1983, she has conducted tutorial classes and day care centre. At her marriage she was presented with 800 grams of golden ornaments, 8 Kgs. of silver articles and prior to her marriage, as a spinster, she had 140 grams of golden articles on her body, out of that, her senior uncle presented 45 grams of golden chain and bangles to her. There is a reference in 62 Spl.C.C. No.208/2009 examination-in-chief that her father-in-law has also presented 600 gms. of golden articles and 6 kgs. of silver. According to this lady, prior to her marriage, she has earned a sum of Rs. 45,000/- by canvassing those professions. At the time of her marriage, her father had paid a sum of Rs. 2 lakhs as Sthreedhana, 5 silk sarees were presented. It was also the evidence of DW. 25 that she was running a baby day care centre and she was charging Rs. 300-400 per year. After her marriage, her brothers also presented golden articles weighing 500 gms. And silver articles weighing 3 kgs. According to this witness, at the time of her marriage, DW. 28 was working as a lecturer in V.V.Puram Diploma College and getting monthly salary of Rs. 1,800/-, then he joined 63 Spl.C.C. No.208/2009 BBMP as a Work Inspector on a consolidated salary of Rs. 480/- p.m. On account of this work, both DW. 25 and 28 were accommodated by her father in the 1 st floor building situated at Jayanagar 9th block, Bengaluru.
57. It is also the evidence of DW. 25 that her father in law had let out his residential house situated at the Old Madivala road and they shifted all the household articles given by her father to their house. According to this lady, she also had agricultural dry lands at Rampura Village of Channapatna Taluk. From that agricultural land, she had a revenue of Rs. 7,20,000/-. Her mother-in- law died in the year 2002 and during her lifetime, she was presented with 500 gms. of 64 Spl.C.C. No.208/2009 gold and 3 kgs. of silver to her daughter Harshitha. According to this lady, in the year 2005, she lost her father-in-law Chikka Thammegowda and spoken about he paying cash of Rs. 1 lakh to perform her daughter's marriage and also the presents given by him to her. According to this witness, she has declared all these aspects in her ITR. Apart from this document, she has also filed a separate affidavit before both PWs.1 and 3 in respect of her properties possessed by her. Through this witness, Ex.D. 44 came to be marked. So far as leasing of site of her daughter, document at Ex.D. 11 came to be marked. According to this lady, vide Ex.P. 39 and 40 which were the income tax returns, she has declared in respect of sites sold for a sum of Rs. 4,50,000/- situated at 65 Spl.C.C. No.208/2009 Kasthoorba Nagar. According to this witness, she completed her education in the year 1982 and spoken about the independent profession canvassed by her including the regular source of income which she was getting.
58. According to this DW. 25, her mother Smt.Yashodamma was having agricultural land measuring 9 acres of land and in this regard Ex.D. 44 was placed by her. According to this lady, her father was paying rent to a building situated at 9th block as a tenant and she has also placed documents in the form of cheque books in respect of said lease hold transactions. According to this witness, inspite of providing documents to IO at the time of investigation, they have not 66 Spl.C.C. No.208/2009 been well considered by him and by over looking the ingredients of the schedule and the documents in the form of ITR and affidavit, final report and charge-sheet came to be filed.
59. Coming to the evidence of DW. 26 by name Sridhara M.C., who is the younger brother of DW. 28, according to this witness, having completed his PUC in the year 1986, he came to Bengaluru in the year 1987 along with his brother M.C.Nagaraj and they were running a grocery shop and doing whole sale coconut business along with real estate business. He was also running STD booth and his father Chikka Thammegowda had invested huge amount towards this business. They had established this business in bank 67 Spl.C.C. No.208/2009 colony, Srinivasanagar, Bengaluru. According to this witness, his father Chikka Thammegowda was doing money lending and Shamiyana business besides diary, poultry farming and sheep breeding business. According to this witness, when situation demands, he used to borrow money from his father, then he used to repay the same. According to this witness, in the year 1998, his marriage took place and at the time of his marriage, his parents presented 300 to 400 gms. of gold and 2 kilo silver articles. Till 2005, his father was having an income of Rs. 1,58,00,000/-, in the year 1999, Chikka Thammegowda allotted a site to him situated at Hosakerehalli, Bengaluru, his father had four sons and two daughters, his father provided one site to him and 3 acres of 68 Spl.C.C. No.208/2009 irrigated lands to him, 3 acres of irrigated land and residential house situated at Melapur to his brother Nagaraj. There is also a reference in his evidence that 3 houses situated at Melapur worth Rs. 80 lakhs and apart from those properties, Chikka Thammegowda was owning a house at Tavarekere and Madivala and 3 sites at Herohalli. According to this witness, in the year 1991, his father Chikka Thammegowda constructed a house at old Madivala under his personal supervision. In the year 2004, another house at Tavarekere was constructed and his father allotted two houses to his brother Prakash in the family partition. The household articles were kept in the Madivala house by his father. Those two houses were provided by Chikka Thammegowda. There 69 Spl.C.C. No.208/2009 was an evidence given by this witness that accounts were maintained by his father in this regard. Further, according to this witness, as his father was doing money lending, dairy, poultry farming, sheep breeding and shamiyana business, he had regular source of income from those avocations.
60. Coming to the evidence of DW. 27 by name Smt.Anusuya, she is the younger sister of DW. 28, her limited examination is to impress upon this Court that her marriage was solemnized in the year 1988, her husband is a manager in the Textile Co- operative bank and at the time of her marriage, Chikka Thammegowda has presented 200 gms. of gold, 2 kgs. of silver 70 Spl.C.C. No.208/2009 articles and valuable sarees. Likewise, Chikka Thammegowda also presented gold chain to her husband. There is also an evidence given by this lady that after the marriage, her father has also allotted a site at Hosakerehalli in the family partition.
61. Lastly, coming to the evidence of a star witness DW. 28, he is the AGO in this case. According to this person, on 05-07-1983, he joined BBMP as a work inspector on a consolidated payment basis. His marriage with DW. 25 took place on 20th May 1983 and immediately after the marriage, he was staying in the house of his father-in-law situated at 9th block, Jayanagar. According to this witness, from the year 1948 his father Chikka Thammegowda was an agriculturist, 71 Spl.C.C. No.208/2009 was having total 16 acres 21 guntas of irrigated land and was growing paddy, sugar cane, coconut, etc. To certify this aspect, Ex.P. 45 is placed before this Court. According to this witness, out of horticultural income, his father earned total sum of Rs. 22.54 lakhs, from agriculture Rs. 57,09,000/- vide Ex.P.50 from internal crops like ginger, banana, Rs. 11 lakhs, out of his dairy, poultry, sheep breeding, he was getting income of Rs. 28,16,000/- vide Ex.D. 33.
62. According to DW. 28, in the year 1991, Chikka Thammegowda had let out a house at Madivala on rental basis. His father constructed the said house under his personal supervision and he has brought the materials and labourers from his village, he 72 Spl.C.C. No.208/2009 had spent a sum of Rs. 2,80,000/- for construction of the said building. There is also an evidence given by this witness that a total sum of Rs. 15 lakhs was earned by his father out of the money lending business and he placed a reliance on Ex.D. 38 which is the APR submitted by this witness to his appointing authority.
63. According to DW. 28, in the year 2004, his father constructed another house in a property bearing No.3/1, Tavarekere Village, Bengaluru and that construction was completed in the year 2004. A sum of Rs. 12 lakhs was spent for its construction, where Chikka Thammegowda had borrowed a loan of Rs. 9,60,000/- from Corporation Bank, J.C.Road, Bengaluru. Ex.D. 50 got marked 73 Spl.C.C. No.208/2009 through this witness to certify that aspect. His father was owning 4 kgs. of golden articles and 10 kgs. of silver articles and over all his father had income of Rs.
1,60,00,000/-. In the year 2005, his father died, till his death Chikka Thammegowda was acting as a Kartha of the joint family and he was looking after all the family affairs. In the APR submitted in the year 1983-84 vide Ex.P. 38, he has mentioned about the properties owned by Chikka Thammegowda and this AGO with other immovable properties of the family. There is also a reference given by this witness in the year 1988, his father got purchased 3 sites at Hosakerehalli village to his two sisters and one brother, likewise one more site at Hosakerehalli in the year 1999, which was 74 Spl.C.C. No.208/2009 later given to his brother Sridhar. His father was instrumental in constructing houses at Madivala and Tavarekere and Ex.P. 44 and 48 are produced to substantiate this aspect. Likewise, site bearing Herohalli was purchased by his mother out of her own income.
64. It is also stressed hard by this witness DW. 28 that his parents had separate and independent income in this regard, he has placed Ex.P. 45, 49, 50 and 51. The household articles found at Madivala and Tavarekere belonged to Chikka Thammegowda, but PW. 1 vide drawing Ex.P. 9 has wrongly considered as the household articles belonging to DW. 28. There is also evidence given by this witness as to what 75 Spl.C.C. No.208/2009 were the presents received from his father-in- law at the time of his marriage. According to this witness, the total assets of the family was Rs. 14,82,332/-, but the same has been wrongly quoted by inflating those figures.
65. According to this DW. 28, he brings in another important aspect that on 19-09- 2008, he had submitted his statement along with supporting documents before the Commissioner, BBMP, which is at Ex.D. 2. Immediately, he approached both PWs.1 and 3 with a request to consider the schedule forwarded by the Commissioner, BBMP. But, instead of looking to those documents, PW. 3 started retorting that he had already completed the investigation and had submitted his final report to the higher 76 Spl.C.C. No.208/2009 authority seeking approval to prosecute the AGO. According to this witness, again on 16- 10-2008, he submitted another letter Ex.D.
3. It is the grievance of this witness that IO has not considered any of the grievance or the schedule documents which were filed with the charge-sheet. According to this witness, even though site bearing No.170 of Madivala and Sy.No. 98/1 of Madivala village are the properties of his mother-in-law Smt.Yashodamma, but this PW. 3 has considered the same as his properties. In the examination-in-chief, this witness has given a lengthy list as to what were the assets and income of his parents and mother-in-law Smt.Yashodamma which were wrongly considered as the properties of DW. 28. 77
Spl.C.C. No.208/2009
66. According to this witness, after the marriage, he was residing with his in-laws's house, but from 1997 onwards, he started residing at the house situated at Madivala. Likewise, according to this witness, he was possessing 140 gms. of gold articles and he purchased a site bearing No.259 situated at Raghuvanahalli, Bengaluru for a sum of Rs. 1,20,000/-. That site was sold in favour of one C.M.Ramu for a sale consideration of Rs. 14,40,000/- and this has been mentioned in his APR for the relevant period. Even though his gross salary was Rs. 22,14,379/-, but the IO has wrongly considered it as Rs.18,05,064/-. According to this witness, IO has not considered the LIC premium paid by him and the calculation furnished by him while filing the final report was incorrect. 78
Spl.C.C. No.208/2009 Likewise, the gold and silver jewelry possessed by his wife and daughter has wrongly considered. It is the serious grievance of this witness that the IO has not considered the Sthreedhana at the time of marriage. The IO instead of considering the rental amount of Rs. 2,50,000/-, but has wrongly considered it as Rs. 1,08,000/-.
67. According to this DW. 28, his father by availing loan had put up construction and this aspect has not been considered by the IO. Even though Smt.Yashodamma had an agricultural income of Rs. 20 lakhs during the check period, the same was not considered. While considering the food and other expenses, the IO has not followed the proper procedure and the relevant price 79 Spl.C.C. No.208/2009 index, which has resulted in filing incorrect report before the Court. According to him, at the time of his marriage, his father had presented to him 600 gms. of gold and 3 kgs. of silver to his wife. Again through this witness that relevant documents came to be marked.
68. This evidence was let in by DW. 28 only to highlight before the Court that inspite of submitting Ex.D. 1 to D4 and also the schedules, they were not properly considered by the IO and so much so that, the properties of his parents and his mother-in- law Smt.Yashodamma has been taken into consideration while preparing the final report.
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69. These are all the evidence let in by the prosecution and the accused and his witnesses to support the rival contentions. Now, part played by the prosecution in placing the documents or mere marking of the documents have become useful or not, will have to be seen. During the course of arguments, even though the Learned Public Prosecutor submitted that both PWs.1 and 3 have collected many documents, which clearly go to show that, accused was so much intelligent, he has entered into benami transactions and purchased various properties in the names of his parents and his mother-in-law Smt.Yashodamma. To counter the same, the learned defence counsel contended that mere marking of the documents does not show the proof of the 81 Spl.C.C. No.208/2009 allegations made. In this regard, he relied upon the decision reported in LAWS (KAR) 2016 (2) 292 in the case of State Vs. Gurumallappa, wherein the Hon'ble High Court of Karnataka has held that "mere production and marking of the said document as an exhibit is not enough. Execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouch safe for truth of the contents appearing therein. On the same analogy, another judgment reported in LAWS (SC) 2011(1) 102 in the case of Alamelu Vs. State represented by Inspector of Police, wherein the Hon'ble Supreme Court has held that "The legal position is not in dispute that mere production and marking of a document as 82 Spl.C.C. No.208/2009 exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". So far as the dictum laid down by the Hon'ble Apex Court and Hon'ble High Court of Karnataka in the above said decision squarely applies to the case on hand and comes to the aid of the AGO. So, this Court with these aspects in background will have to analyze each item wise the different items of the properties acquired by the AGO and his family members.
ASSETS
70. So far as different items under the assets are concerned, it is the definite stand 83 Spl.C.C. No.208/2009 of the prosecution that the entire family had possessed wealth to the tune of Rs. 75,66,267-08 ps. Which accounted for most part of the amassing wealth by means of ill gotten money. Again at the cost of repetition, it is made clear that in the charge sheet, no doubt PWs.1 and 3 have considered the income and properties of AGO's parents and his mother-in-law Smt.Yashodamma.
71. In this regard, according to the AGO, both IOs. under the misconception have not only filed Ex.P. 1, then registered Ex.P. 3, but wrongly have submitted first final report at Ex.P.65 and then the charge sheet, because the word family as referred in Conduct Rules of BBMP has not been considered by them. According to this AGO, definition of a 84 Spl.C.C. No.208/2009 family as defined under the Conduct Rules of BBMP reads as under:
"Word dependent is also explained in the said rules".
Further the said rules state that "father is not a member of the family as per the said Conduct Rules of BBMP.
Likewise, the family consists of wife and children only."
72. Inspite of bringing these aspects to the notice and knowledge of both the IOs. but they did not bestow their attention to the schedules which consisted of APRs of the AGO, ITRs of DW. 25 and 28 and separate affidavits of these two persons. So, in a nutshell, if the assets, expenditure and incomes of DW.28's parents and his mother- in-law are kept out of this calculation, then the alleged disproportionate assets in a sum 85 Spl.C.C. No.208/2009 of Rs. 45,35,761.79 will not available for calculation at all. Because, the income of the AGO and his immediate family will be more than the assets and expenditure. So, the present prosecution cannot be launched against the AGO. On these premises, the learned defence counsel submitted that it is purely under misconception, parents of the AGO who are not dependent on him and also the mother-in-law who is an outsider of the family, their properties with malice have been roped in, only to initiate these proceedings against the AGO.
73. Coming to Sl.No.1 of the asset, which is a site bearing No.259, Raghuvanhalli, Uttarhalli Hobli, Bengaluru South Taluk, the PW. 3 has taken the value of this property to 86 Spl.C.C. No.208/2009 be Rs. 1,20,000/- to the credit of the asset of the AGO. So far as this item of the property is concerned, it is squarely admitted by DW. 28 in his cross-examination which is extracted as under:
"It is true that, a site bearing No.259 of Raghuvanahalli was purchased by me from City Municipal Corporation Employees House building Co- operative Society on 05-02-2003 for a sum of Rs. 1,20,000/- by paying stamp duty of Rs.35,640/- and registration fee of Rs. 5,280/-".
74. So this admission by itself clearly go to show that this AGO does not dispute in respect of acquiring this property in his name. So, PW. 3 when he filed both Ex.P. 65 and the charge sheet, he was right in depicting this property number and the sale 87 Spl.C.C. No.208/2009 consideration amount in the name of this accused.
75. The difficulty has arisen in this case is that those immovable properties, they are Sl.Nos.2 to 11 of the assets shown by the PW.3 in his charge-sheet are concerned, none of these items of the properties stand in the name of the AGO, DW. 25 or his children. Again it is apt here to revert back to the family concept as explained under Conduct Rules of BBMP, this definition of family does not include parents and in-laws of the AGO. So, if these items No.2 to 11 of the immovable properties, which are shown as assets in the charge sheet are excluded from the calculation of the assets, then virtually, the prosecution has no legs to stand and this 88 Spl.C.C. No.208/2009 case becomes very weak case. It is here by mentioned that if these assets/items of immovable properties are excluded, that accounts for merely Rs. 48,88,408/-. The case of the prosecution itself is that the AGO has amassed disproportionate wealth which comes to Rs. 45,35,761.79ps. Under such circumstances, keeping this important aspect in mind, I would like to discuss in respect of other major items of the assets shown in the charge-sheet.
76. Coming to item No.2 of assets, which is a site No.170, Sy.No. 98/1, Madivala Village,Begur Hobli, Bengaluru South Taluk and the IO has considered Rs. 80,000/- as the sale consideration to the credit of this AGO. But, coming to the explanation offered 89 Spl.C.C. No.208/2009 by the IO, it is worth considering and the reasons assigned by him cannot show that this AGO has purchased the property in the name of his mother-in-law. This property was purchased by the mother-in-law of the accused by name Smt.Yashodamma and PW. 3 admitted this aspect in his evidence which is extracted as under:
" The value of the site No.170 of Madivala Village is Rs. 80,000/- which is in the name of the mother-in-law of the accused by name Smt.Yashodamma."
77. Now, when PW. 3 who is the IO who has filed the charge-sheet squarely admits that when he considered this property which already stood in the name of Smt.Yashodamma and the law requires him to produce documents to show that this 90 Spl.C.C. No.208/2009 property was purchased in the name of Smt.Yashodamma which was a benami transaction.
78. On the other hand, PW. 3 goes to give admission saying that in spite of the AGO furnishing schedules, he has not considered them while preparing Ex.P. 65 which is extracted as under:
"When 2 volumes of the schedule no 1 to 23 produced before this court by the accused were shown to the witness, he admitted that he has received the copy of both the volumes from the accused. The prosecution has not produced the same before this court along with the charge sheet. ... After receiving Ex.D-4 and 5, I have not conducted investigation in respect of the facts and figures furnished by the accused in those volumes".91
Spl.C.C. No.208/2009
79. So, when this is the clinching material which is spilling out from the mouth of the PW. 3, it is self explanatory and further discussion is not needed. It is undisputed that Ex.P. 44 is the sale deed in respect of this item of the asset property standing in the name of Smt.Yashodamma. Further, it is also made clear by both DWs.25 and 28 in their respective evidence that subsequently, this property was bequeathed by Smt.Yashodamma in the name of her grand- daughter Kum.Harshitha Prakash, which is also declared by the AGO in his APR vide Ex.D. 38. As PWs.1 and 3 have not convinced this Court and failed to establish that this Ex.P. 44 was a benami transaction that took place on behalf of the accused, under such circumstances, this 80,000/- rupees has not 92 Spl.C.C. No.208/2009 been considered as the asset including the property at Ex.P. 44. So, this 80,000/- rupees will have to be deducted from the assets of the AGO i.e. from Rs. 75,66,267/-
- Rs. 80,000/- = Rs.74,86,267/-.
80. Coming to items No.3 to 5 of the assets shown in the charge-sheet, they are site No.101/2A, present No.4, similar site number present No.5, similar site number present No.6/2 of Division No.35, Bengaluru City Corporation are concerned, they also do not stand in the name of this AGO. In this regard, when the documents at Ex.P. 48 and 70 are looked into, they are self explanatory. These three sites were purchased in the name of father of AGO by name Sri.Chikka Thammegowda. The sale deeds referred to 93 Spl.C.C. No.208/2009 supra makes it very clear that it was the Chikka Thammegowda out of his own earnings has purchased these properties and they do not stand in the name of AGO. Again if this Court has to form any opinion in this regard that they are the benami transactions, which has taken place on behalf of the accused, there must be such clinching evidence/documents. In this regard, according to me, PW. 3 who is the IO has failed to convince before this Court that these 3 sites referred to supra are purchased by the AGO in the name of his father. The relevant evidence given by PW. 3 is as under:
"The value of the site no 101/2(a) and present No. 4 and present No. 5 are Rs.1,41,000/- each and those two sites stands in the name of the father of the accused by name Chikkathamme 94 Spl.C.C. No.208/2009 Gowda. ... Value of site No. 101/2(a) and present No. 6/2 stands in the name of mother of the accused by name Chikkathayamma and its value of Rs.55,000/-".
81. Having said so, but in his cross- examination, he completely surrenders by admitting that wrongly they have taken the sale considerations of these three sites to the credit of the accused which are extracted as under:
" It is true that we have considered the properties worth Rs.80,000/- standing in the name of mother in law of the accused as the benami properties of the accused. .... t is true that we have considered the properties worth Rs.3,46,000/- standing in the name of mother of the accused as the benami properties of the accused. ... I have not issued notices to the 95 Spl.C.C. No.208/2009 father, mother and mother in law of the accused. ... I cannot say the assets, expenses and income of the father, mother and mother in law of the accused."
82. According to me, if this is the quality and direction in which this investigation was under taken by the PW. 3, then the prosecution is at greater responsibility to show that the so called benami transactions said to have been under taken by the accused was in the name of his parents and mother-in-law. But, as I have said earlier, they have completely failed to prove the same.
83. Coming to the posh building which accounts for substantial part of the asset i.e. house No.12, 12th Cross, 20th B Main Road, 96 Spl.C.C. No.208/2009 BTM Layout, I Stage, Bengaluru is concerned, The PW. 3 has considered its value as Rs. 13,59,000/- and has stated that it was also got constructed by DW. 28. But, PW. 3 himself admits that this property also stands in the name of one Chikka Thammegowda. According to DW. 28, Chikka Thammegowda, his father constructed the entire building which consisted of ground, first and 2nd floors. DWs.21, 26 and 28 have spoken about this aspect and it is the evidence of DW. 28 that his father Chikka Thammegowda bought the construction materials like bricks, sand, wood and labourers from his native place, the entire costs of construction was financed self by Chikka Thammegowda and the ground floor was completed in the year 1991 and the 97 Spl.C.C. No.208/2009 expenses incurred was only Rs. 5,74,000/-. So far as 1st floor was concerned, it was constructed in the year 1999-2000, the costs incurred was Rs. 7,80,000/-. But, in this regard PW. 3 got examined PW. 4 who was the technical person who has issued his report at Ex.P. 64.
84. The IO has banked upon the evidence of PW. 4 only to vouch-safe the fact the building at Madivala at House No.12 was constructed by the AGO. But, this PW. 4 by name Pranesh Kumar who was the Executive Engineer and who was in the technical wing, when he was asked to submit his report in respect of this property so far as to the valuation is concerned, according to him, he inspected this property on 31-05-2008. 98
Spl.C.C. No.208/2009 That property consisted of ground, first and mezzanine floors. There is a clear evidence given by PW. 4 that in the year 1991, ground floor was constructed, whereas in the year 1999-2000 both ground and mezzanine floors were constructed. According to him, the ground floor was assessed at Rs. 5,74,000/-, first and mezzanine floors was assessed at Rs. 7,85,000/- and total costs of construction of that house was Rs. 13,59,000/-. When this evidence was given, this was taking its support from Ex.P. 64.
85. In the cross-examination, there is an admission elicited from this witness mouth by the accused that when he conducted the spot inspection, no structural design was provided to him by the Karnataka 99 Spl.C.C. No.208/2009 Lokayuktha police. According to him, he has not conducted any quality test of the building. Likewise, it is his admission that KLA police have not produced any documents to show that the said building belonged to the accused. Only on the basis of the say of the KLA police, he presumes that the said building belongs to the AGO. According to me, this cannot be considered as a cogent evidence to form an opinion that the entire costs of construction which was incurred by the Chikka Thammegowda was financed by the AGO. In this regard, there are no documents.
86. According to me, some of the admissions given by PW-4, it goes to the root of the case and makes Ex.P. 64 not safely reliable, some 100 Spl.C.C. No.208/2009 of which are extracted as below:
" It is true that in the every district Contractors Association and Construction Laborers Association will maintain their own price list and rates. It is true that the rates mentioned in the circular of the PWD and the rates considered by the Registration Department will vary and it would not tally with each other. ... Lokayuktha Police have not provided any information to me as to whether houses of the accused were constructed under his personal supervision or by giving contract to others. .... It is true that while filing the Ex.P-64 report , I have shown the cost of plumbing, electrification and steel on lump sum basis. "
87. Under this precarious circumstance, the report of PW. 4 at Ex.P. 64 cannot held as correct one to consider the valuation shown by PW. 3 as shown in the charge sheet. More 101 Spl.C.C. No.208/2009 over, even the PW. 3 also admits that when PW. 4 undertaken the inspection for valuing the building, that was standing in the name of Chikka Thammegowda, so, this amount cannot be considered as the asset of the AGO. So, this Rs. 13,59,000/- will have to be deducted from the assets of the AGO i.e. from Rs.74,86,267/- - Rs.13,59,000/- = 61,27,267/-.
88. Coming to another posh building, which is property No.3/1, situated at 1st cross, Tavarekere Layout (Cashier Layout), Madivala. The IO has considered the value of this property at Rs. 18,12,000/-. Again PW. 3 has committed the same mistake by taking this property as AGO's benami property, which is again needless to repeat that there 102 Spl.C.C. No.208/2009 is no documentary evidence to show that this is a benami transaction. Again if we fall back on evidence of PW. 3, DW. 21,26 and 28, there are many admissions which show that as Chikka Thammegowda was having an independent source of income and it was admitted by PW. 3 that from the year 1948, this Chikka Thammegowda was an agriculturist having agricultural, diary farming and money lending income, he has purchased the same. So, even the evidence of PWs.3 and 4, likewise the report of experts at Ex.P. 64 are looked into, they are self explanatory. As I have said earlier, so long as there is no document, which abridges the gap between the benami transactions and the role of DW. 28 in amassing the wealth this huge amount of Rs. 18,12,000/- cannot be 103 Spl.C.C. No.208/2009 considered as the property of the AGO. So, this amount has to be deducted from the asset i.e. from Rs.61,27,267/- - Rs.18,12,000/- = Rs. 43,15,267/-.
89. So far as the properties shown at Sl.No.9, 10 and 11 are concerned, they are the house list No.16, wherein the IO has considered Rs. 1,50,000/- as the asset of the accused. Another house list No.52, wherein this site which was purchased for a sum of Rs. 50,000/- was also considered for the asset and lastly house list No.17, site which sale consideration was Rs. 1,00,000/- was also considered as the asset of the AGO. But, again I say that these properties don't stand in the name of the AGO at all. This site No.16, katha No.7 of Herohalli village was 104 Spl.C.C. No.208/2009 purchased by Chikka Thammegowda and this was admitted by PW. 3 in his cross- examination. When there is a document produced by the AGO, which are at Ex.D. 4 and 5, they are self explanatory.
90. Here in spite of Ex.D. 4 and 5 were produced by DW. 28, which were sent through his superior officer, the Commissioner, BBMP to the PW. 3 through proper channel and directly this DW. 28 has submitted volumes Nos.1 to 23 vide Ex.D. 4 and 5, the explanation offered by PW. 3 have not considering them, because by the time, the office received these schedules, Ex.P. 65 has already been prepared and it is submitted to the higher authority for sanction order. According to him, this 105 Spl.C.C. No.208/2009 explanation cannot be accepted at all. So, this property was never stood in the name of AGO. So, this sum of Rs. 1,50,000/- shall have to be deducted from the assets of the AGO i.e. Rs. 43,15,267/- - Rs.1,50,000/- = 41,65,267/-.
91. If these Sl.Nos.2 to 11 of assets shown in the charge-sheet are excluded from the total assets of the accused, the prosecution has no case and the alleged disproportionate amount shown in the charge-sheet is not available for further consideration at all.
92. So far as the assets shown by the PW. 3 in the charge-sheet is concerned, the major part of the income i.e. shown by the IO is in respect of household articles found in the 106 Spl.C.C. No.208/2009 house of the AGO. The IO has projected a figure of Rs. 11,74,453/- which amounts for the crunch of the assets in the list of assets shown in the charge-sheet.
93. The PW.1 was the Police Officer, who filed the source report at Ex.P. 1 and also claims to have undertaken part of the investigation with the help of panchas has conducted raid of the house of the AGO situated at No.12, Madivala, Bengaluru. This PW. 1 heavily banks upon Ex.P. 9 which is the spot-cum-seizure panchanama drawn at the house of the AGO. Further more, this PW. 1 in his examination-in-chief marks the source report at Ex.P. 1, search warrant at Ex.P. 4 and P.5 and ultimately, the panchanama at Ex.P. 9. According to this 107 Spl.C.C. No.208/2009 witness, items found at Ex.P. 9 from Sl.Nos.1 to 521 were searched and seized from the house of the AGO. When his examination-in- chief is looked into, an impression is created that while seizing the documents, household articles, there was no any impediment and it was a smooth task. But, in the cross- examination, this witness gives an admission that he has not looked into the documents at Ex.P. 11 to P.19, 21 to 50. So, in his cross- examination, this PW. 1 being the Police Officer who conducted the search and raid has failed to show before the Court that what special steps he took to seize those articles specially household articles.
94. According to me, the role and evidence of panchas become very crucial. PW.6 by name 108 Spl.C.C. No.208/2009 Guru Prasad H.R. gives an evidence that he was deputed to be a pancha and to assist PW. 1 for search and seizure of both house and office chambers of the accused. Confining appreciation of his evidence to Ex.P. 9 is concerned, there are some vital admissions which are given, which clearly go to show that PW. 1 had no special knowledge, so also this witness to assess the household articles shown in the charge-sheet filed by the IO. In his cross-examination, there are some material admissions which are extracted as under:
" I had been the witness for another raid case registered by the Lokayuktha Police and another trap case registered by them. I am B.Sc graduate. I am not an expert or certified valuer of household articles to opine about the value and price of any 109 Spl.C.C. No.208/2009 articles. I am not obtained any training for determining the value of any article. ... When the house of the accused was raided, no one given information to us as to when those articles were manufactured and purchased. Search mahazar was typed by the typist who was brought by the Lokayuktha Police. I have not given any dictation for typing those mahazars."
95. This answer shows that the guess work said to have been done by the PW. 1 at the spot for either valuing or assessing the household articles has no basis at all. Likewise, there was one more pancha, who was also of the same opinion that only on the guess work, they have formed an opinion as to what was the approximate value of the household articles.
110
Spl.C.C. No.208/2009
96. Coming to the evidence of PW. 11 by name N.B.Mahadevaiah who claims to have accompanied PW. 1 with PW. 6 for Ex.P. 9 and P.10 has also admitted in clear terms as to the knowledge they had in assessing the household articles. Some of the admissions given by this witness in the cross- examination has been extracted as under:
"It is true that the estimate value of the goods and articles mentioned in panchanama are the value of the said goods as on that day. It may be true that the value of a particular article or goods depends upon its year of acquisition, specifications, company, brand and quality. It is true that personally I do not know as to the mode of acquisition of such properties by the accused and the company to which its belongs and its quality."
111
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97. So, according to me, nothing more is required to form an opinion in this regard. So far as the contents of Ex.P. 9 is concerned, there is a clear cut recitals in that document that PW. 1 has come to a conclusion by gathering the opinions of PWs.6 and 11 to form an opinion as to the value of household articles. So, this calculation on the part of PW. 1 which was accepted by PW. 3 has no legs to stand.
98. Even PW. 3 who is the IO who has filed the charge sheet in his cross-examination admits that after succeeding to PW. 1 so far as this investigation in this case is concerned, he has not verified the earlier part of the investigation done by PW. 1. The said admission is hereby extracted as below: 112
Spl.C.C. No.208/2009 "The search was not conducted in my presence and mahazar was not drawn in my presence. I have not conducted any investigation in respect of the articles found in the house of the accused and shown in the mahazar. I have not conducted the investigation regarding the value of the articles shown in the mahazar. ... I have not verified the APR filed by the accused to know the declaration made by the accused regarding gold, silver and household articles received by him and his wife from their ancestors."
99. So, at no stretch of imagination, this valuation cum assessment of the household articles referred by PW. 3 in his charge-sheet in a sum of Rs. 11,74,453/- at Sl.No.33 of the assets cannot be accepted. This Court having scanned the materials of the prosecution is under the duty, also look into 113 Spl.C.C. No.208/2009 the evidence of DW. 28. This witness to begin with, makes it clear that when Ex.P. 38 is gone through, all the household articles found at the time of raid was referred in that document. So, there was no hide and seek or suppression of any materials to show that those were purchased out of ill gotten money. Dw.28 gives what were the properties possessed by him including household articles. To begin with his first grievance is that the household articles found in his house were wrongly considered as his properties even though they belonged to his father Chikka Thammegowda. Now, there is nil material placed by the PW. 3 before this Court that all of the household articles found by them in House No.12 of Madivala belonged to AGO. Because, there was no 114 Spl.C.C. No.208/2009 presumption in this regard. First of all, the house which they raided belongs to Chikka Thammegowda so also the household articles we find consistant evidence given by DWs.21 and 25 in their respective evidences. In the cross-examination, nothing material has been elicited by the Learned Public Prosecutor to show before the Court with the credibility of that evidence have been impeached. This DW. 28 in his examination- in-chief reiterates the fact that apart from his father constructing the said house was instrumental in also providing household articles. This evidence has not been shaken by the prosecution in the cross-examination.
100. Likewise, DW. 25, who is the better-half of this AGO both in her examination-in-chief 115 Spl.C.C. No.208/2009 and cross-examination having spoken about the household articles being that of her father-in-law added a new element that by saying that both PWs.1 and 3 have least bothered to verify in respect of the year of manufacturing, the company which manufactured those household articles. When PW. 6 and 11 gives evidence that they are the laymen and have no special skill to value or assess the household articles, it is for the PW. 3 to explain before the Court that how safe for this Court to accept the version as per Ex.P. 9, household articles all of which were belonged to AGO which worth Rs. 11,74,453/-. According to me, the prosecution has failed in two counts, first it failed to demonstrate before the Court that the household articles belonged to AGO and 116 Spl.C.C. No.208/2009 secondly, that as on the date of conducting Ex.P. 9, they were valued so much. So, this calculation is baseless and even without accepting the version of AGO this will have to be deducted from the net total of Rs. 41,65,267/-, which will come to Rs. 29,90,814/-.
101. Even though DW. 28 in his evidence has given a figure that total costs of the household articles will be Rs. 1,58,000/-, even that cannot be accepted because, even they have not placed any material to show that what were those items acquired, when and what were their prices then. Both DWs.25 and 28 have stated in their respective evidences that both during their marriage and other functions, they have received some gifts, but apart from gold and 117 Spl.C.C. No.208/2009 silver, they have not clarified as to what were the household articles. Under such circumstances, this amount of Rs. 11,50,000/- cannot be accepted as household articles of the accused.
102. Coming to the Sl.No.35 of the assets, the PW. 3 has shown that both AGO and his family possessed gold and silver articles worth Rs. 7,03,800/-. In the instant case, the greatest drawback is that when Ex.P. 9 took place, it is the claim of PW. 1 that he had secured the assistance of an appraiser/gold smith. But, there is no material to show that either this PW. 1 has recorded his statement and for the reasons best known conspicuously this gold smith is not a one of the charge-sheet witness. So 118 Spl.C.C. No.208/2009 long as the procedure and method adopted for valuing either as a diamond, gold or silver and also weighing them and that evidence is not put to cross-examination, this Court will not get an insight into the procedure adopted by the goldsmith as there is no appraiser statement. Secondly, no documents /receipts /bills in respect of gold and silver articles, thirdly, no authenticated price tags available.
103. On the other hand, that Ex.D. 4 and D.5 and the explanation offered by the AGO and Sec.313 statement are concerned, both DWs. 25 and 28 in clear terms have spoken that they received gold and silver ornaments as presents at the time of their marriage from Chikka Thammegowda, Chikka Thayamma and mother-in-law, Smt.Yashodamma. 119
Spl.C.C. No.208/2009 Further, according to DW. 25 Smt. Indhumathi, even prior to her marriage as a spinster, out of her own earnings, she had purchased some gold and silver articles. This DW.1 who is the brother of DW. 28 supports the claim of DW. 25 that in the marriage, not only DW. 28, all the sons of Chikka Thammegowda were given gold and silver articles. Now, in the cross-examination, no doubt, the Learned Public Prosecutor was partly successful in getting some admissions in respect of these accused and his wife not producing those documents, but was unable to show that these gold and silver articles found in the house at the time of raid were purchased by the accused out of ill gotten money. This is the crux of the matter. 120
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104. According to the prosecution, the source of acquisition of ornaments are from ill gotten money. As I have said earlier that DWs.25 and 28 have placed some estimates of the jewelry and also examined a witness to show that, regularly they were visiting the said jewelry shop, it may sound probable. More or less, it is the version of DW. 28 that for over some years as and when occasion arose, they have purchased some golden ornaments and nothing else. Under such circumstances, as the impress of truth is found in the evidence of DWs.25 and 28 so their versions require to be accepted.
105. This DW. 28 has examined DW. 10 by name P.A.Ramesh who claims to be an proprietor of the Ashwathlakshmi Jewelry 121 Spl.C.C. No.208/2009 shop, Jayanagar. According to this person, AGO has purchased gold and silver articles and he used to issue receipts for the sale of gold and silver articles. Through this witness, Ex.D. 17 to 32 came to be marked, which were the receipts issued by him. But, in the cross-examination, the unshaken answer of this witness was that both DW. 25 and 28 and their family were regular customers to him. The contents of Ex.D. 17 to 32 have not been uprooted under these circumstances apart from the customary presents, the gold and silver articles found in the house of the AGO at the time of raid cannot be completely branded as those purchased out of ill gotten money. More over, as the prosecution has approached this Court, there is heavy burden upon it to show before the Court that these 122 Spl.C.C. No.208/2009 acquisitions were out of ill-gotten wealth. But, in this regard, the prosecution has thoroughly failed to prove the same.
106. So far as Sl.Nos.13 to 29, 34 to 43 are concerned, they are not very much in dispute. They are in the form of bank accounts kept in the name of AGO, his wife and children. Further more, even so far as acquisition of Bajaj Chetak Scooter is concerned, merely because RC stands in the name of DW. 28, there cannot be an adverse inference in that regard. In view of Ex.P. 38, Ex.D. 4 and 5, the burden of proof has oscillated to the prosecution to prove before the Court that they were acquired out of ill gotten wealth. Under such circumstances, so far as the assets, which were less in value, 123 Spl.C.C. No.208/2009 each were found in the form of outstanding balance in the bank accounts of the AGO, his wife and children casting aspersion on the same can only show before the Court that APR at Ex.D. 38 and ITRs filed by Smt.Indumathi for each financial year from 1998 onwards to hold them correct.
107. During the course of arguments, the learned Public Prosecutor submitted that merely by submitting APRs. and ITRs, that can in no way show that the AGO has not committed an offence under Secs.13(1)(e) and 13(2) of Prevention of Corruption Act, 1988. No doubt, the Learned Public Prosecutor was right in this direction. But, at the same time, if the wrong or incorrect declaration in the APRs are found, it is for the 124 Spl.C.C. No.208/2009 appointing/disciplinary authority to initiate proper action against such public servant. So also, if there is a false declaration given to the income tax department, under the Income Tax Act, necessary actions are contemplated that will be initiated. In the instant case, those two extremities have not taken place which clearly go to show that as alleged by the prosecution, such amassing of wealth has not taken place. In order to sum up, the total assets available for consideration of the AGO is only Rs. 29,90,814/-. So, PW. 3, the IO proved himself wrong that the total value of the assets will be Rs. 75,66,267-08. The prosecution has failed to prove and also counter the explanations furnished by the accused both through his schedules and 125 Spl.C.C. No.208/2009 under both oral and documentary evidence. EXPENDITURE
108. The PW. 3 in his charge-sheet has quoted a figure of Rs. 14,48,505/- as the expenditure of the AGO and his family. Again in this 76 items, which are listed in the charge-sheet, there are certain admitted items which calls for no any discussion. So far as item No.44 is concerned, according to PW. 3, a sum of Rs. 40,920/- was spent by DW. 28 towards stamp duty and registration charges in respect of a Site bearing No.255 of Raghuvanahalli village of Uttarhalli Hobli, Bengaluru South Taluk. When I had my discussion in respect of same site which came to be purchased by DW. 28, I have culled out that cross-examination portion of 126 Spl.C.C. No.208/2009 DW. 28 who admitted in clear terms that out of his earnings and income, he purchased the site and also paid the requisite stamp duty and registration charges. Under such circumstances, this Rs. 40,920/- is held to be correct as the expenses incurred by DW. 28 and it is rightly considered as the expenditure of the AGO.
109. Coming to Sl.Nos.45 to 54 of the expenditure list, this PW. 3 has committed the same mistake, which according to this Court, he had committed while considering the assets of the AGO and his family members.
110. It is apt to mention in this context that when we go through the source report at 127 Spl.C.C. No.208/2009 Ex.P. 1, simultaneously comparing that with Ex.P. 3, this PW. 1, who being the Police Inspector had undertaken part of the investigation and subsequently, that was handed over to PW. 3. Now, the point which requires to be made clear is that even in Ex.P. 1 and P.3, this PW.1 has repeated that both Chikka Thammegowda, Chikka Thayamma and Smt.Yashodamma were these three persons in whose names both assets, expenditure and income stood vastly. With this note, having filed the source report and FIR at Ex.P. 1 and P.3, the investigation was further taken to its logical. So, the only question is inspite of PWs.1 and 3 admitting that excluding the family of the AGO, the properties of the parents of the AGO and mother-in-law are taken note of, they form 128 Spl.C.C. No.208/2009 the major portion of the income and expenditure of the AGO. So, again with the same background, this Court will have to again look into the expenditure of the family members of the AGO. According to me, there is nothing much which can be reassessed in this regard. So far as expenditure item No.45 and 46 are concerned, they are site No.170 carved out of Sy.No. 198/1, Madivala Village are concerned, these two properties stood in the name of Smt.Yashodamma and as per Ex.P. 44, this is very much evident. Now, when such is the position, it is for PW. 3 to explain before the Court that how the stamp duty and registration charges paid by this Yashodamma can be considered as the expenditure of the accused. So, in this regard, I should say, PW. 3 in his cross- 129
Spl.C.C. No.208/2009 examination completely failed to answer this aspect.
111. Likewise, we can also find a reference in the evidence of PWs.25 and 28. In the cross- examination of DW. 28, the prosecution has made a suggestion to this AGO that as Ex.P. 44 was a benami transaction as that sale deed stood in the name of Smt.Yashodamma, so she was made to pay the stamp duty and registration charges. According to me, this suggestion cannot hold much water. Admittedly, PW. 3 in his cross-examination has given answer that he did not verify the investigation done by the earlier IO and he had no occasion to look into the documents compiled at Ex.D. 4 and D.5. So, this stamp duty and registration charges which are 130 Spl.C.C. No.208/2009 shown at Sl.No.45 and 46 of the expenditure list of the charge-sheet cannot be taken into consideration for the purpose of calculation and they have to be deducted.
112. Likewise, so far as the other items such as 47 of the expenditure list is concerned, this property also stood in the name of the father of the accused by name Chikka Thammegowda and the relevant document is at Ex.P. 44. So, this Rs. 19,740/-, the value considered by the PW. 3 cannot be considered.
113. Coming to Sl.No.48 of the expenditure list, which is in respect of Site No.101/2A, this property also stood in the name of Chikka Thayamma, mother of the AGO and 131 Spl.C.C. No.208/2009 this lady has remitted the registration and stamp duties. Relevant reference is found at Ex.D. 44. Coming to Sl.No.49 of the expenditure list property which is site No.16 of Herohalli, that was also stood in the name of Chikka Thayamma and she has paid the stamp duty and registration charges and this document is also found at Ex.P. 44.
114. Coming to Sl.No.50 of the expenditure list, this site No.52 of Herohalli are stood in the name of Chikka Thammegowda, he, who has remitted the stamp duty and registration charges. So far as, expenditure list property Nos.51, 52, 54, 55, 59 and 60 are concerned, they are not standing in the name of the AGO. If according to PW. 3, DW . 28 was responsible for their purchase and so, he has 132 Spl.C.C. No.208/2009 paid the same to the concerned authority and if that contention were to be accepted, then he has to lead evidence in that direction and establish the same. According to me, in this direction both PWs.1 and 3 have completely failed to do so. So, this Court cannot consider this amount as the expenditure incurred by the accused family and I should say, these amounts referred to supra cannot be available for any calculation. So, under such circumstances, PW. 3 has wrongly included in the expenditure list along with the charge-sheet.
115. Coming to the major expense which the PW. 3 has shown in his charge-sheet is the amount of rs;4,18,448/- said to have been spent by the AGO's family towards their food 133 Spl.C.C. No.208/2009 and diet. In this regard, the PW. 3 has examined an expert who also has examined the documents furnished by the KLA and issued his report. PW.5 by name Jayadeva Prakash who was the Joint Director of Statistics Karnataka Lokayuktha, Bengaluru and according to him, he having received a letter from the Superintendent of Police was asked to submit a report in respect of Food expenditure for the check period. It had also sent some information in a prescribed format. So, this PW. 5 basing his report on the Pay Commission report of 1985-86 of the Government Employees Karnataka, National Sample Survey of Karnataka for the year 1987-88 and year wise State Consumer Price Index of Karnataka has submitted his report with a covering letter which are available at 134 Spl.C.C. No.208/2009 Ex.P. 53 and 54. No doubt, the entire report at Ex.P. 54 is on the basis of the input and information provided by the Lokayuktha. In fact this is what has been highlighted by the AGO in this witness cross-examination. There is an admission that if the accused family were to grow and get agricultural produce, to that extent there may be reduction in the expenses of the food grains so also the dairy products. According to this witness, he has not verified the health conditions of the accused including his family members. This witness gave an evasive answer that as he was not provided with any information as to the education back ground of the children of the accused that is who have studied in boarding school or not, so he did not report anything in this 135 Spl.C.C. No.208/2009 regard in Ex.P. 54. But, ultimately, he says that his Ex.P. 54 is on conjuncture and surmises basis. The said admission given by this PW. 5 in his cross-examination is extracted as under:
"I say that the report filed by me is only an estimation of valuation of the food expenditures of the accused and his family members.
It is true that in my report my
subordinate has done the
calculations. I have put my
signature for the calculation made by my subordinate official".
116. So, this were to be the nature and quality of the report. PW.3 as a responsible IO is under the duty and obligation to explain before the Court as to how that has to be accepted and acted upon. So, in my considered view, the entire evidence of PW. 5 136 Spl.C.C. No.208/2009 nor Ex.P. 54 cannot be blindly be accepted. But, the best part of the appreciation of the evidence is that this Ex.P. 54 has not found support from the IO only. According to this PW. 3, neither he has considered the schedule at Ex.D.4 and 5 nor has verified the documents collected by PW. 1 at the initial stage during the earlier part of the investigation.
117. The DW.28 has grievance in this regard. According to this person, the platform or the basis which was adopted by PW. 5 cannot be held to be a correct or an acceptable one. In his examination-in-chief, this DW. 28 gives evidence which is as follows:
" The IO has assessed our
expenditure towards food and
137
Spl.C.C. No.208/2009
other expenses at Rs.
4,18,000/-, but our expenditure was not more than Rs.
2,50,000/-".
118. No doubt, when this DW. 28 gave this evidence, he is also duty bound to show that how the food expenditure was only Rs. 2,50,000/-. But, in this regard, he depends upon the oral evidence of DW. 21 and 24 to show before the Court that as they are from agrarian family and his children were studying in the Boarding School, the expenditure which they have spent on food items is far less than what it was quoted by the IO. To this argument, the Learned Public Prosecutor took strong exception to the fact that most of the independent witnesses examined by the AGO are all relatives and 138 Spl.C.C. No.208/2009 interested witnesses. Hence, their evidence cannot be considered by this Court. To counter the same, the learned defence counsel relying upon a decision reported in AIR 1977 SC 2274 in the matter between Piara Singh & others Vs. State of Punjab, wherein the Hon'ble Apex Court has held as under;
(A) Evidence Act (1 of 1872), S.3
- Evidence of interested witness es cannot be rejected merely on ground of being partisan evidence .
The evidence of interested or inimical witnesses is to be scrutinized with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of evidence the court is satisfied that the evidence is credit-worthy, there is no bar, for the court relying the said evidence.
139
Spl.C.C. No.208/2009 (B) Evidence Act (1 of 1872), S.45
- Conflict between opinions of medical witness es - opinion of that expert which supports direct evidence should be accepted.
he contends that even if they are relatives, the Court cannot outrightly reject such evidence and that the evidence which is relevant to that extent has to be considered in the light of the prevailing circumstances.
119. So far as the ratio laid down by the Hon'ble Apex Court in the above said decision comes to the rescue of this accused. Nevertheless, coming to the approximate amount of Rs. 4,90,000/- considered by the IO is concerned, it proves to be costly and as I have said earlier, both evidence of PW. 4 and Ex.P. 54 cannot signal the fact that the 140 Spl.C.C. No.208/2009 AGO ad his family members have incurred so much amount towards the food expenditure. But, a sum of Rs. 2,50,000/- as deposed by DW. 28 looks reasonable. So, the same is considered as the expenditure of the AGO towards the food and diet.
120. So far as the education expenses of daughter and son of DW. 28 i.e. Kum.Harshitha and Shashwath are shown to be Rs. 1,52,085/- and Rs. 77,520/-. But, again there is a sea of discrepancy in arriving at this figures. According to DW. 28, the very approach adopted by PW. 3 in collecting information and documents in respect of the educational expenses of his children are on a wrong footing. His explanation that as he initially was in a joint family and initially the 141 Spl.C.C. No.208/2009 schooling days, there was not so much of an expense, which has made the education of his daughter and son very costly. Further more, it is the say of this DW. 28 that as his parents and mother-in-law had a definite source of income, which has helped in spending the amount towards the educational expenses of his children. The limited evidence given by PW. 3 is extracted as under:
"Accused incurred Rs. 1,52,085/-
and Rs. 77,520/- towards the educational expenses of his daughter and son respectively."
121. While cross-examining this PW. 3, the main trump card on the part of DW. 28 was that as this PW. 3 had no corroborative evidence, he failed to collect any documents. Another limb of argument was that PW. 3 142 Spl.C.C. No.208/2009 ought to have given break ups as to which particular year what was the amount spent by the accused towards boarding, lodging and schooling charges. I should say that as there is no clarity forthcoming either from the side of PW. 3 or from the side of DW . 28, it is not safe on the part of this Court to accept the educational expenses of both Kum.Harshitha and Master Shashwath as Rs. 1,52,085/- and Rs. 77,520/-.
122. No doubt, it is the titrate of law that the prosecution shall have to prove the guilt of the accused beyond all reasonable doubt equally when the accused denies or controverts this allegation, he is also duty bound to show that how the prosecution has failed or has wrongly quoted that particular 143 Spl.C.C. No.208/2009 amount in this case. In the instant case, both the IOs. have failed to prove the required materials as to what was the exact amount spent towards the educational expenses of both Harshitha and Shashwath.
123. Going a step further, even as quoted by PW. 3 in his charge-sheet at items No.62 and 63 of expenditure are taken into consideration, it does not make much difference, because, the expenditure amount of the AGO and his family will be far less than Rs. 14,48,505/-. As because the PW. 3 has listed some of these items as expenditure, this Court is called upon to give its finding and nothing else. The entire part of the oral and documentary evidence of the accused are to show before the Court that 144 Spl.C.C. No.208/2009 PW. 3 has fallen in error to show before the Court that neither Ex.P. 1 nor Ex.P. 65 are correct on account of their improper investigation.
124. During the course of arguments, the learned defence counsel took up another contention that the entire approach adopted by both PWs.1 and 3 are not as directed by the Supreme Court in a case reported in LAWS (MAD) 2007 12 547 in the matter between R.Kannappan & K. Chandra- sekaran Vs. State by Deputy Superinten- dent of Police, wherein it has been held as under:
"In a case of this nature, where allegations are made against the public servant that he had assets disproportionate to the known 145 Spl.C.C. No.208/2009 sources of his income, the duty of the Investigating Officer is as follows:
(i) The Investigating Officer should assess the value of the assets of the public servant immediately prior to the check period with relevance to the tax Returns of the concerned person and also loans and other incomes available to the person and also about the liability of the person prior to the check period.
(ii) the actual income during the check period and the expenditure actually incurred by the public servant should be calculated without any inflation and on a reasonable basis.
(iii) the total income during the check period and assets prior to the check period must be taken together as the total assets of the public servant from which the actual expenditure and amounts saved either by cash or by properties must be deducted 146 Spl.C.C. No.208/2009 from the total amount and see whether there is much disproportion to the known sources of income of the public servant and the assets on his hand. While making the calculation regarding the value of the properties and expenditure a reasonable margin has to be given this way or that way to find out the truth. Such kind of procedure to be adopted only by an unbiased Investigating Officer.
There should be no suppression of income or under estimation of the income of the accused or inflation of the expenditure or inflation of the assets of the accused.
(iv) he Investigating Officer should not suppress any of the income, by way of loan or gift while considering the income of the public servant.
(v) Similarly after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known sources of income, the accused must be given an opportunity to 147 Spl.C.C. No.208/2009 explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the prosecution."
125. So, on the basis of this judgment, he started contending that when PW. 3 has failed to read the definition of a family as found in the BBMP Employees Conduct Rules, there is no question of considering the income of parents and mother-in-law of the accused. According to me, the principles enunciated by the Hon'ble Supreme Court in the above said decision is applicable to the facts of the case, for this reason when the income of the AGO, his wife and children are taken into consideration, there is no disproportionate assets to his known source of income. Time and again, both PWs.1 and 148 Spl.C.C. No.208/2009 3 have made this aspect very clear.
126. So far as other items of expenditure are concerned, they are admitted by DW. 28, because, so far as the outstanding balance available in the bank accounts of the AGO, his wife and children are concerned, they are not in dispute, because, there are primary documents in this effect. Under such circumstances, questionable items No.66 to 76, are not in dispute. Under such circumstances, according to me, the expenditure as quoted by PW. 3 cannot be correct. Likewise, according to DW. 28, the PW. 3 has over stated a sum of Rs.
5,67,866/-. I should say this may not be all correct. But, nevertheless, an amount of Rs. 14,48,505/- is incorrect and it has 149 Spl.C.C. No.208/2009 resulted in taking into account those incomes of the persons who are not the family members of the AGO.
INCOME
127. So far as the income of the AGO's family is concerned, there are 20 items and the total amount shown is Rs.44,79,010-79. Here there is a big difference and usually in this type of DA cases, this is what the contention of most of the accused persons. But, certain aspects which requires consideration is that in spite of Exs.D.4 and 5, for the reasons best known, this PW. 3 has not considered the income of DW.25 and her children i.e. Kum.Harshitha, Chi.Shashwath as they had independent sources of income. It is also the grievance of DW. 28 that when there is a well 150 Spl.C.C. No.208/2009 established law that the IO should also take into consideration the income prior to the check period, that has not been considered. According to this DW. 28, prior to joining BBMP, he has served as a part time Lecturer and has taken other assignments. So, the IO has not considered his opening balance in the bank accounts as on the date of the check period. It is also the grievance of DW. 28 that DW.25's Sthreedhana property was also not been considered and after her marriage with AGO, she sold gold and silver ornaments, that were also not considered and her opening balance from the date of check period Rs. 66,500/- was not considered and this AGO received a sum of Rs. 5 lakhs on account of execution of a sale agreement in respect of Site No.259 of 151 Spl.C.C. No.208/2009 Raghuvanahalli Village and a sum of Rs. 2,98,600/- was omitted. So, according to me, PW. 3 may not be right in calculating the income of their family.
128. This DW. 28 received salary and allowances prior to check period i.e. from 1983 to 1990 in a sum of Rs. 1,11,250/-, they were not considered. So, the income shown by the PW. 3 was far below that they have earned during the check period. So, with this background, this Court has answered, what was the income that has to be considered by the IO and what not.
129. The PW. 3 in his charge-sheet has quoted that the AGO and his family members had amassed an income of Rs. 44,79,010-79. 152
Spl.C.C. No.208/2009 So, if this amount is deducted from the total expenditure and asset, the net available will be the disproportionate asset of the AGO and his family members. Again without involving in repetition of my discussion, most of these assets are on account of the fact that PW. 3 has not considered the gross salary of the AGO not only for the check period, but even prior to it. Second part of the aspect is that when DW. 25 was an income tax assessee even prior to her marriage with DW.28. She had a regular source of income from running tutorial, Bright Baby Care Centre, tailoring, agricultural income/proceeds, receipts from sale of gold and silver. All these things have been ignored. Under such circumstances, the application of mind, which was required to be applied by both PWs.1 and 3 in 153 Spl.C.C. No.208/2009 depicting the income of the AGO and his family members have not been properly applied by them.
130. Out of the 20 items of the income, the major part is in respect of the salary received by the AGO in a total sum of Rs.
18,05,064/-. But, when we go through the evidence of DW. 28, the saga is totally different. According to this witness, PW. 3 was completely wrong in considering the total salary on a lesser scale only to see that it looks meager sum received by the AGO. According to this DW. 28, the PW. 3 has taken less amount of his salary and the difference amount will be Rs. 3,39,521/-. The relevant evidence given by this DW. 28 is extracted as under:
154
Spl.C.C. No.208/2009 "IO has considered my net salary of Rs. 18,05,064/- for the check period. My gross salary during th echeck period was Rs. 22,14,379/-. I.O. has considered the deduction of Rs. 3,39,521/- and it includes my LIC premium. There is a short fall of Rs. 3,05,690/- in the calculation of I.O. towards my income. I.O.
has considered the tax deductions as my income, os the calculation of the I.O. towards my income is not correct".
131. Under such circumstances, according to me, the total salary of the AGO has to be considered in a sum of Rs. 22,14,379/-.
132. Another important aspect which was highlighted by DW. 28 was that the IO has not considered the income of this accused prior to the check period. It is the consistent evidence of this accused that prior to joining the BBMP, he was working as a Lecturer with 155 Spl.C.C. No.208/2009 V.V.Puram College and he was getting regular salary and that income has not been considered by this IO. The evidence of DW. 28 is extracted as under:
" I.O. has not considered my earlier income of Rs. 1,85,000/- in between 1977 to 1983. I have earned a sum of Rs. 28,000/-
out of my lecturer duty in V.V.Puram College from 1980 to 1983 and it was mentioned in Ex.P.38. I.O. has not considered my private consultation income of Rs. 85,100/- from 1983 to 1987, same was mentioned in Ex.P. 38."
133. So far as these extracted portion of ocular evidence of DW. 28 are concerned, the I.O. at least should have got it impeached by way of eliciting his admissions in his cross- examination, but he has utterly failed to do the same in this regard. This evidence of 156 Spl.C.C. No.208/2009 DW. 28 in respect of his income has also found support from his brother DW. 21, his wife DW. 25 and so far as rentals received by this DW. 28 are concerned, when the evidence of DW. 8 by name S.T.Vivekanandan, DW. 9 by name Avinash Venkata Reddy, DW.13 by name K.Kasilingam are gone through and of course, the documents at Ex.D. 13 to 16 are self explanatory. Even the I.O. has not considered the incomes of DW. 25 and 28. Under such circumstances, so far as different incomes listed by PW.3 in the charge sheet cannot be considered by me as they does not belong to the family of the accused. So far as item No.1 of the income of the AGO is incorrect. So far as items No.2 to 17 are concerned, it is not been disputed by the 157 Spl.C.C. No.208/2009 AGO. But, coming to the items No.18 to 20 are concerned, again this forms substantial income and this was received by the DW.25 as a landlady. According to Smt.Indumathi, she being the better-half of DW. 28, at the time of her marriage, her father presented 800 gms. of gold ornaments and 8 Kilos of Silver. Likewise, she has also given evidence that she was paid a sum of Rs. 2 lakhs with the above said gold and silver articles by her parents as Sthreedhana.
134. The predicament in this case is that even though Ex.D.4 and 5 are placed by the AGO along with Ex.P. 38 the Income Tax Returns of this lady at Ex.D. 44, but this I.O. has not whispered anything in this regard. Either the IO must admit in respect of this 158 Spl.C.C. No.208/2009 Sthreedhana or should come out with an explanation for not considering the same. So far as not considering the Ex.D. 44, which are the Income Tax Returns for the particular year, no explanation is offered by the I.O. So far as this income received by the DW-25 by way of running tutorial, Bright Baby Day Care Centre, tailoring, even those have not been considered.
135. In the cross-examination of DW. 25, the prosecution tries to be evasive in not posing questions touching those aspects. The DW.25 being the younger brother of the AGO also spoke about the partition that took place in their family and how Chikka Thammegowda was root cause for performing their marriages. Under such circumstances, 159 Spl.C.C. No.208/2009 according to me, PW. 3 has ignored many of the incomes of DWs. 25 and 28, which according to me has only shown that the calculation of the I.O. in respect of the income of the accused is incorrect and wrong. In this regard, according to me, as the PW.3 has not considered the incomes of DW.25, they are Rs. 45,600/- which DW. 25 received as rentals from her properties, documents at Ex.P. 38, D.47 are self explanatory in this regard. Likewise, DW. 25's agricultural income in a sum of Rs. 7,19,335/- has not been considered. In fact, this is admitted by PWs.1, 3, 7 and 8. When Ex.P. 61 and 63 are gone through, they are self explanatory. Coming to Rs. 2 lakhs received by DW. 25 as a Shtreedhana, the evidences of PWs.1 and 3, DW. 25 and Ex.P. 160 Spl.C.C. No.208/2009 38 are self explanatory. Income from tailoring received by DW. 25 in a sum of Rs. 1,19,500/- is also not considered by the IO. The evidence given by DW. 25 in this regard is not uprooted. So far as the tuition fee of Rs. 9,82,100/- not considered by the I.O. The relevant documents are at Ex.P. 38 and Ex.D. 4. Golden ornaments sold by DW. 5 in a sum of Rs. 4,11,010/-, that has not been considered and the relevant documents placed by the AGO are under Ex.D. 17 to 32.
136. The AGO had received a sum of Rs. 5 lakhs by entering into a sale agreement vide Ex.D. 36, that has not been considered. The opening balance of the bank accounts of the AGO earlier to check period in a sum of Rs. 2,98,600/- has also not been considered by 161 Spl.C.C. No.208/2009 the I.O. The relevant documents are at Ex.D. 13 to 16 and P.38. The AGO has received a gift worth Rs. 81,000/- which is declared by him in Ex.P. 38, that has not been considered. Gift received by Chi.Shashwath and Kum.Harshitha in a total sum of Rs. 2,11,500/- has not considered by the I.O. An amount of Rs. 7,25,000/-, this amount was received by the AGO from his father at the time of family partition. This was not also considered by the IO.
137. As these were the inputs with documents, they were very much available at in schedules Ex.D. 4 and 5, but I should say the IO should have gone through these documents and should have corrected the charge-sheet in this regard. Merely because, 162 Spl.C.C. No.208/2009 schedules were presented by the AGO after preparing of the final report cannot be a ground. As per the calculation of the IO, total income is Rs. 44,79,010/- which is incorrect, whereas when the above referred incomes are considered, it comes to Rs. 73,09,848/- which is the correct figure and as one can make out the difference that income is on the higher side when compared to assets and expenditure of the AGO and his family members. So, the alleged amassing of wealth in a sum of Rs. 45,35,761.29 does not arise at all and this cannot account for 101.26%. The prosecution has thoroughly failed to establish this aspect.
138. So far as obtaining sanction against the AGO to launch this prosecution is concerned, 163 Spl.C.C. No.208/2009 when sanction was obtained, then AGO was a public servant, but during the pendency of this proceedings, he has since retired from service. So, question of considering or going into the validity of the same does not arise at all. On an earlier occasion also, the AGO has questioned the validity of the sanction order by filing an application seeking for discharge. Under such circumstances, now that question does not survive for consideration.
139. During the course of arguments, the learned counsel for the AGO placed some decisions to highlight that investigation under taken was on a wrong footing and PW. 3 had failed to place proper documents and not looked into the explanation and the documents placed by him. Even so far as 164 Spl.C.C. No.208/2009 assessment of movable and immovable properties, it was objected too. In this regard, he relied upon a decision reported in 2014 Cri.L.J.238 in the case of Pozir Uddin Ahmed vs The Union Of India, wherein Hon'ble High Court has held as under:
"Prevention of Corruption Act (49 of 1988), S.13(1)(e) - Criminal misconduct-Accused Manager of Hindustan Fertilizer Corporation Ltd. allegedly amassed assets disproportionate to his known source of income- Assessment of valuation of immovable and movable properties of accused could not be proved -
Prosecution could not establish that accused had been found in possession of assets disproportionate to his known source of income -Conviction set aside."
140. In another decision reported in 165 Spl.C.C. No.208/2009 LAWS(KAR) 2015 8 159 in the matter between Tulsiram Vs. The State, wherein the Hon'ble High Court of Karnataka held as under:
"T he trial Court has not made out any efforts to look into all the documents prosecution by the IO including the documents which are alleged to be in support of the accused which are kept in the separate volumes unnumbered. According to the accused these materials, if they were properly sifted and evaluated for the purpose of ascertaining the prima facie case, the same would disclose that the prosecution has not prima-facie case and the accused has successfully explained the difference of amount as claimed by the prosecution and even he has got more source of income and there is absolutely no disproportionate assets compared to his income."166
Spl.C.C. No.208/2009
141. Another decision reported in AIR 2007 SC (Supp) 1860, in the case of State, Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri, wherein the Hon'ble Apex Court has held as under:
(A) Prevention of Corruption Act (49 of 1988), S.17 - Investigation
-Authorization by Superintendent of Police in favour of an officer to carry out investigation -has to be in writing - Issuance of an oral direction is not contemplated under the Act - No explanation offered by IO for not filing authorizing letter -Further non-
consideration of relevant documentary evidence by IO also not explained - Respondent -
accused had suffered miscarriage of justice as investigation made by I.O. was not fair-Investigation illegal.
(B) Evidence Act (1 of 1872), S.64, S.114 - Documentary evidence
-Non-production of document in possession of a public 167 Spl.C.C. No.208/2009 functionary, who is under a statutory obligation to produce same - An adverse inference may be drawn against him.
(C) Prevention of Corruption Act (49 of 1988), S.19 -Sanction for prosecution -Competent authority
- Respondent-accused, Assistant Station Master tried for offence under Sec.13(1) (e) - Sanction granted by Sr. Divisional Operational Manager who was not competent to remove respondent from service -Sanction being without jurisdiction is invalid.
142. In another decision reported in LAWS(MAD) 2018 7 74 in the matter between D.Janardhanan State Rep.by its Deputy Superintendent of Police, it has been held as under:
"The total income during the check period and assets prior to the check period must be taken together as the total assets of the public servant from which the 168 Spl.C.C. No.208/2009 actual expenditure and amounts saved either by cash or by properties must be deducted from the total amount and see whether there is much disproportion to the known sources of income of the public servant and the assets on his hand. While making the calculation regarding the value of the properties and expenditure a reasonable margin has to be given this way or that way to that way to find out the truth. Such kind of procedure to be adopted only by an unbiased Investigating officer. There should be no suppression of income or under estimation of the income of the accused or inflation of the expenditure or inflation of the assets of the accused.
The Investigating officer should not suppress any of the income, by way of the loan or gift while considering the income of the public servant.
Similarly after finding out that 169 Spl.C.C. No.208/2009 there is any disproportionate wealth in the hands of the public servant beyond his known sources 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 prosecution.
143. In another decision reported in LAWS (KAR) 2013 8 353 in the matter between B.T.Nagappa Vs. State, wherein the Hon'ble High Court of Karnataka has held as under:
"He is admittedly possessing ancestral property even by the date of entering into service. Subsequently his sons are grown up and they also became earning members of the family. Wife is also earning some amount by doing tailoring work and his unmarried daughter is earning some amount by giving tuitions. The Investigation Officer has not collected any evidence about the income of the family members 170 Spl.C.C. No.208/2009 and the income from agriculture and ignored their contributions to the family. Thus the explanation offered by the appellant regarding the source of income which can be treated as the known source of income, the burden shifts on the prosecution to prove that the source of income explained by the appellant is not correct and source of income furnished by the appellant is false and incorrect. As already stated, the burden of proof lies on the prosecution to prove the alleged benami nature of transactions. In this case the prosecution utterly failed to prove that the accused has purchased properties in the name of his wife and children and the transactions are benami in nature".
144. The defence counsel highlighted before the Court that, looked from any angle, purely under the misconception Ex.P. 1 was filed 171 Spl.C.C. No.208/2009 then without looking into the explanation offered by the AGO and also the documents submitted by way of 23 volumes by way of schedule Ex.P.65 was submitted. According to me, having gone through the materials, the discretion said to have been exercised by PW. 3 either in considering the assets and expenditure of the AGO are totally incorrect. No proper yardstick is followed in this regard. Hence, alleging that AGO has committed misconduct does not sustain for consideration at all. That the law contemplated is that only if the AGO fails to offer satisfactory explanation for acquiring the assets and income, then only they will become ill gotten wealth which will be unlawful. In the instant case, there could not have been a better document than the 172 Spl.C.C. No.208/2009 ITR, APRs and title deeds, but they have not been well considered. Hence, the Prosecution has not proved the guilt of the accused beyond all shadow of doubt. Accordingly, I have answered this point in the negative.
145. POINT No.2: Having gone through the materials, it has shown that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. Hence, having held the above detailed discussion, I proceed to pass the following :
O R DE R The accused found not guilty of the offences alleged against him.
Acting under Sec.235 (1) of Cr.P.C., the accused is hereby 173 Spl.C.C. No.208/2009 acquitted of the offences punishable under Secs. 13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
The bail bond and the surety bond of the accused shall stand hereby discharged.
The interim order passed by this Court on 28-10-2019 giving interim custody of the properties/articles / documents shall become absolute after completion of the appeal period.
(Dictated to the judgment-writer, transcript thereof and then corrected and pronounced by me in the open Court on this the 30 th DAY OF MARCH 2022).
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.174
Spl.C.C. No.208/2009 A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 M.G.Subba Rao PW.2 Dr.S.Subramanya PW.3 Prasanna V. Raju PW.4 Pranesh Kumar PW.5 Jayadeva Prakash PW.6 H.R.Guruprasad PW.7 Shantha Kumari PW.8 Rudresh PW.9 M.S.Ramesh PW.10 H.Nagaraja PW.11 N.B.Mahadevaiah LIST OF DOCUMENTS MARKED FOR PROSECUTION: Ex.P.1: Source Report. Ex.P.1(a) Signature of PW.1 Ex.P.2 Memo dtd.07-11-2005 Ex.P.2(a) Signature of PW.1 Ex.P.3: F.I.R. Ex.P.3(a) Signature of PW. 1. Ex.P.4 Search Warrant.
Ex.P.4(a to c) Signatures of CW.2 & CW.4. Ex.P.4(d) Signature of accused.
Ex.P.5 Search Warrant. Ex.P.5(a to c) Signatures of CW.2 & CW.4. Ex.P.5(d) Signature of accused. Ex.P.6 to 8 Requisition letters.
175 Spl.C.C. No.208/2009 Ex.P.6(a) & 8(a) Signatures of of PW.1. Ex.P.9 Mahazar dtd.8-11-2005. Ex.P.9(a) Signature of PW.1. Ex.P.9(b) Signature of Paramesh. Ex.P.9(c) to (e) Signatures of CW.2 to CW 4. Ex.P.9(f) Signature of accused. Ex.P.10 Mahazar drawn at Office of accused. Ex.P.10(a) Signature of PW.1. Ex.P.10(b) Signature of C.A.Yogesh. Ex.P.10(c) to (e) Signatures of CW.2 to CW 4. Ex.P.10(f) Signature of accused. Ex.P.11 Apex Bank account and locker details. Ex.P.12 Karnataka Bank Accounts details. Ex.P.13 Service particulars of accused. Ex.P.14 'B' extract of santro car. Ex.P.15 Membership & account of BBMP Society. Ex.P.16 Letter of LIC dtd.15-02-2006. Ex.P.17 Letter of BNM College. Ex.P.18 LIC Policy particulars. Ex.P.19 Post Office Account particulars. Ex.P.20 Sanction Order. Ex.P.21 Account & loan in Bharathi Credit Society. Ex.P.22 Letter dtd.22-02-2006 Ex.P.23 Letter dtd. 3-03-2006. Ex.P.24 Letter dtd.03-03-2006 Ex.P.25 Letter Ex.P.26 Letter dtd.10-03-2006 Ex.P.27 Letter dtd.27-04-2006 176 Spl.C.C. No.208/2009 Ex.P.28 Letter dtd.13-05-2006 Ex.P.29 Letter dtd.29-06-2006 Ex.P.30 Letter dtd.24-07-2006 Ex.P.31 Schedules with letter dtd.31-07-2006 Ex.P.32 Letter dtd.08-06-2006 Ex.P.33& 34 Copies of NSCs from post office Ex.P.35 Letter reg.membership fee. Ex.P.36 Chirst College fees details. Ex.P.37 Letter dtd.22-11-2006. Ex.P.38 Letter dtd.24-11-2006. Ex.P.39 Income Tax returns . Ex.P.40 Income tax returns of the accused wife. Ex.P.41 to Letters dtd.22-8-2007,25-8-07, 46 6-9-07,13-09-07,12-10-07,16-11-07. Ex.P.47 Salary particulars. Ex.P.48 Copy of sale deed & EC. Ex.P.49 Letter dtd.22-01-2008. Ex.P.49(a&b) Signature of PW. 9. Ex.P.50 Agricultural income & expenditure of AGO Ex.P.50(a&b) Signatures of PW. 10. Ex.P.51 Covering letter. Ex.P.51(a) Signature of PW. 8. Ex.P.52 Particulars of Horticultural crops. Ex.P.52(a) Signature of PW. 8. Ex.P.53 Letter dtd.28-04-2008. Ex.P.53(a) Signature of PW. 5 Ex.P.54 Statement.
Ex.P.54(a to c) Signatures of PW. 5. Ex.P.55 to 57 Letters dtd.03-06-08, 05-06-08, 09-06-08 Ex.P.58 Letter with payment of tax to BBMP Ex.P.59 Kissan Vikas Pathra.
Ex.P.60 SB & PF accounts.
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Ex.P.61 Letter dtd.5-07-2008.
Ex.P.61(a) Signature of PW. 8.
Ex.P.62 Agricultural Income.
Ex.P.63 Letter dtd.07-07-2008.
Ex.P.63(a) Signature of PW. 7.
Ex.P.64 Report of PW. 4
Ex.P.64(a) Signature of PW. 4.
Ex.P.65 Final investigation report.
Ex.P.65(a) Signature of PW. 3
Ex.P.66 Authorization Memo.
Ex.P.67 Seized documents from accused
house.
Ex.P.67(a &b) Signatures of PW. 11. Ex.P.67(A) Sale deed dtd.05-02-2003. Ex.P.67(B) Zerox copy of sale deed Ex.P.67(C) Sale deed pertains to Site No.4. Ex.P.67(D) Sale deed of Site No.5. Ex.P.67(E) Will Deed dtd.18-06-1993. Ex.P.67(F) Sale deed of Site No.6/2.
Ex.P.68 Copy of lease deed.
Ex.P.69 Copy of rental agreement.
Ex.P.70 Site No.3/1 Tavarekere details.
Ex.P.71 Salary particulars of AGO from AEE,
Chickpet, BBMP.
Ex.P.72 Salary particular of AGO from AEE,
Chamrajpet BBMP.
Ex.P.73 Salary particular of AGO from
AEE,Madiwala BBMP
Ex.P.74 Salary particular of AGO from AEE,
Jayanagar, BBMP.
Ex.P.75 Salary particular of AGO from Chief
Engineer, (West)BBMP.
Ex.P.76 Salary particular of AGO from AEE,
J.B.Nagar, Sub-division,BBMP. Ex.P.77 Salary particular of AGO from AEE, 178 Spl.C.C. No.208/2009 Shanthinagar sub-division, BBMP Ex.P.78 Salary particular of AGO from Asst.
Controller finance, BBMP.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
NIL.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 M.K.Ananthanarayan
DW.2 Ramachandra
DW.3 Suresh Naik
DW.4 K.Venkatesh
DW.5 Chowdegowda
DW.6 Shanthaprasad
DW.7 Srikanta swamy.M.
DW.8 S.T.Vivekanandan
DW.9 Avinash Venkata Reddy.
DW.10 P.A.Ramesh
DW.11 Dr.B.Anand.
DW.12 H.A.Kemparaju.
DW.13 P.Kasilingam
DW.14 L.K.Shivananda.
DW.15 Shekar
DW.16 Nethaji
DW.17 Ramakrishna
DW.18 K.V.Gopal
DW.19 Jai Shankar
DW.20 Bharath Kumar. C.R.
DW.21 M.C.Neelakanta
DW.22 M.Mallappa
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Spl.C.C. No.208/2009
DW.23 Prakash
DW.24 Nagendra Achar
DW.25 M.Indhumathi
DW.26 M.C.Sridhara.
DW.27 M.C.Anusuya.
DW.28 M.C.Prakash.
LIST OF DOCUMENTS MARKED FOR
ACCUSED:
Ex.D.1 Representation dtd.30-07-2008
Ex.D.2 Representation dtd.19-09-2008
Ex.D.3 Representation dtd.19-09-2008
Ex.D.4 Volume No.1 produced by AGO.
Ex.D.5 Volume No.2 produced by AGO.
Ex.D.6 Report dtd.2-04-2008
Ex.D.6(a) Signature of PW. 7.
Ex.D.7 Certificate issued by DW.1
Ex.D.8 Letter issued by PDO.
Ex.D.9 Letter issued by DW.2
Ex.D.10 Certified copy of Resolution of
Milk dairy.
Ex.D.11 Rent agreement.
Ex.D.11(a &b) Signatures of DW.3 & 25 Ex.D.12 Affidavit Ex.D.12(a) Signature of PW. 3.
Ex.D.13 Lease deed. Ex.D.13(a) Signature of Puran Ex.D.13(b) Signature of accused Ex.D.13(c) Signature of Aravind. Ex.D.14 Rental Agreement.
Ex.D.14( a to Signatures of DW. 8, Kasilingam
c) & accused Ex.D.15 Rental Agreement.180
Spl.C.C. No.208/2009 Ex.D.15( a to Signatures of DW.8, Narasimha Rao,
d) accused & DW. 13.
Ex.D.16 Rental Agreement.
Ex.D.16( a to Signatures of DW.8, Subramani,
d) accused and DW. 13 Ex.D.17 Jewelery shop receipts. to 32 Ex.D.17(a) to Signatures of purchaser. 32(a) Ex.D.17(b) to Signatures of Seller. 32(b) Ex.D.33 Certificate pertains to dairy & Ex.D. 33(a) poultry Signature of DW. 11 Ex.D.34 Report given by DW. 12 reg.income from trees.
Ex.D.34(a) Signature of DW. 12 Ex.D.35 Affidavit
Ex.D. 35(a) Signature of DW. 18 Ex.D.36 Copy of sale agreement. Ex.D.36(a&b) Signatures of DW. 19 & Ramu.
Ex.D.37 Affidavit Ex.D. 37(a) Signature of Ramu.
Ex.D.38 19 Promissory notes.
Ex.D.39 Vehicle RC card.
Ex.D.40 Agricultural income of Chikka
Thammegowda given by DW. 22.
Ex.D.41 Agricultural income
of Smt.Indumathi given by DW. 22.
Ex.D.42 List of household articles
given by DW. 21
Ex.D.42(a) Signature of DW. 21
Ex.D.43 Panchanama
Ex.D.43(a &b) Signatures of DW. 23 & 24 Ex.D.44 Affidavit of DW. 25 Ex.D.44(a) Signature of DW. 25 181 Spl.C.C. No.208/2009 Ex.D.45 34 RTCs of Smt.Yashodamma.
Ex.D.46 Certified copy of sale deed
Ex.D.47 3 cheque books
Ex.D.48 Agricultural income report.
Ex.D.49 License for pre-school.
Ex.D.50 Letter of Asst.Manager,
Corporation Bank.
Ex.D.51 Covering letter with document
of site No.16, Aerohalli.
Ex.D.52 SBM Bank pass book.
Ex.D.53 Bank statement.
Ex.D.54 S.B.account bank passbook.
Ex.D.55 Bank statement.
(S.V.SRIKANTH),
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.