Bangalore District Court
State Karnataka Represented By Deputy vs Sri.R.Jayaram Singh S/O Late on 28 December, 2018
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, (C.C.H. 24), BENGALURU CITY
Dated this the 28th day of DECEMBER, 2018.
PRESENT:
SMT. MANJULA ITTY, B.A.L., LL.B.,
XXIII Additional City Civil and Sessions Judge
Special Judge,
Bengaluru Urban District, Bengaluru City.
Spl.C.C. No.191/2009
Complainant: State Karnataka represented by Deputy
Superintendent of Police, Karnataka
Lokayuktha, City Division, Bengaluru.
(Represented by Sri. D. Ramesh Babu,
Public Prosecutor)
Vs.
Accused: Sri.R.Jayaram Singh S/o Late
K.Ramachandra Singh, aged about 53
years, then Assistant Engineer, Public
Works Department, Bengaluru R/at
No.81, Kadugodi, Bidarahalli Hobli,
Bengaluru South Taluk, Bengaluru.
(By Sri P.N.Hegde, Advocate for
accused)
2 Spl.C.C.No.191/2009
Date of offence 05.12.2006
Date of report of 05.12.2006
offence
Date of arrest of -
the accused
Date of release on 03.11.2009
bail
Total period of -
custody
Name of the B.Parameshwarappa
complainant
Date of 13.07.2016
commencement of
recording evidence
Date of closing of 09.08.2018
evidence
Offences Offence defined under section 13(1)(e)
complained of which is punishable u/s 13(2) of the of
Prevention of Corruption Act, 1988
Opinion of the Accused is found guilty for offence defined
Judge under section 13(1)(e) which is punishable
u/s 13(2) of the of Prevention of
Corruption Act, 1988
State represented Public Prosecutor Sri.Ramesh Babu D.
by
Accused defended Advocate Sri. P. N. Hegde
by
3 Spl.C.C.No.191/2009
JUDGMENT
1. Deputy Superintendent of Police, City Division, Bengaluru has submitted the charge sheet against the accused for the offence defined under section 13(1)(e) punishable under section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act).
2. Case of the prosecution in brief is that the accused being public servant, who had joined Karnataka Government services in Public Works Department on 21.02.1983 as Assistant Engineer was deputed to Panchayath Raj Engineering Department, Bengaluru and while he was working as Assistant Engineer, Public Works Department, Bengaluru the Deputy Superintendent of Police, Karnataka Lokayuktha, Bengaluru City, Sri. B. Parameshwarappa received credible information that the accused has amassed wealth illegally. On the basis this, he conducted preliminary enquiry and collected information and documents relating to the source of accumulation of properties by the accused and 4 Spl.C.C.No.191/2009 a Source Report was submitted by the Dy.S.P. to the Superintendent of Police, City division, Karnataka Lokayuktha, Bengaluru who in turn, under the provisions of Section 17 of the PC Act, made an order that Sri. B. Parameshwarappa, Dy.S.P. to register and to investigate the said case. Accordingly, a case is registered in Cr.No.48/2006 by the said Dy.S.P. and the FIR is submitted to this Court. Thereafter, the Investigating Officer armed with search warrants, on 06.12.2006 searched the residential premises of the accused bearing Door No.81, situated behind Ayyappa Temple Road, Kadugodi, Bengaluru City and a mahazar was drawn. Gold jewelry, silver articles, cash of Rs. 1,21,645/- and some incriminating documents were found in the possession of the accused during the search. The police seized the cash and the documents. On the same day simultaneously, Sri. B. S. Ram Mohan, Inspector of Police, who was authorized by the Investigating Officer conducted search of a flat situated at Gauthami Nest Apartments, 1st Cross, Cambridge Layout, Halsuru, Bangalore and seized 5 Spl.C.C.No.191/2009 certain documents in the presence of the panch witnesses and mahazar were drawn with respect to the search and seizure. The Dy.S.P., Karnataka Lokayuktha Bengaluru conducted investigation by collecting documents from various departments and after obtaining explanation from the accused and after completion of the investigation, it was revealed that the accused during the check period from 21.02.1983 to 06.12.2006 had acquired assets worth Rs. 1,43,55,805.76 and he made expenditure of Rs. 56,05,360.15 but his income from his known sources were only Rs. 1,02,34,002.17 which exposed that the accused had amassed wealth disproportionate to his known source of income to the tune of Rs. 97,27,163.74 which is at 95.04% and hence the Investigating Officer obtained sanction order to prosecute the accused for the alleged offence and laid charge sheet before this Court against the accused.
3. The presence of accused was secured who is represented by his counsel. Copy of the charge sheet was 6 Spl.C.C.No.191/2009 supplied to the accused as contemplated under section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) and the case was posted to hear before charge and after hearing the prosecution and the accused, my learned predecessor-in-office has framed charge against the accused on 03.09.2012 for the offence defined under section 13(1)(e) punishable under section 13(2) of the PC Act, read over and explained to the accused who pleaded not guilty and claimed to be tried.
4. The prosecution to prove the guilt of the accused has examined nine witnesses as PWs 1 to 9 and got marked 54 documents at Exs.P1 to P 54. After closure of the prosecution evidence, the accused was questioned under section 313 Cr.P.C. who denied all the incriminating circumstances appearing against him. The accused got examined himself as DW1 in support of his defense and got marked Ex. D1 to D5 documents in his favour. 7 Spl.C.C.No.191/2009
5. I have heard the arguments of the learned Public Prosecutor and the learned counsel for accused at length. Taking into consideration of the evidence on record coupled with the documents and the written arguments submitted by the learned counsel for the accused, the following points arise for consideration.
1. Whether the prosecution proves beyond all reasonable doubt that accused being public servant while working as Assistant Engineer, Public works Department, Bengaluru for the check period from 21.02.1983 to 06.12.2006 acquired assets disproportionate to his known source of income and on 06.12.2006 accused was found in possession of pecuniary resources and property in his name and in the name of his family members to the tune of Rs.
1,43,55,805/- and his family expenses during the said period was Rs. 56,05,360/- and during this period his known source of income was Rs. 1,02,34,002.17 and thereby was found in possession of 8 Spl.C.C.No.191/2009 property disproportionate to his known source of income to the extent of Rs.
97,27,163.74 which is 95.04%, by
misusing his official position and
committed criminal misconduct and
thereby the accused has committed the offence defined under section 13(1)(e) punishable under section 13(2) of the Prevention of Corruption Act, 1988?
2. What order?
6. My findings on the above points are:
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
REASONS
7. Point No.1: It is the case of the prosecution that the accused being public servant working as Assistant Engineer, Public Works Department, Bengaluru has accumulated asset worth of Rs. 97,27,163.74 which is 95.04% disproportionate to the known source of income during the check period from 9 Spl.C.C.No.191/2009 21.02.1983 to 06.12.2006 and he has not satisfactorily explained about the possession of the property and thereby the accused has committed the alleged offence. Before going to decide the merits of the case, it is necessary to decide the validity of the sanction order at Ex. P51 issued by the Under Secretary to Government, Ports and Internal Water Transport, Public Works Department, Bengaluru. Since the accused is public a servant the prosecution is under initial obligation to establish that valid sanction has been obtained to prosecute the accused. Prosecution relies upon the evidence of PW9, G. Siddagangaiah and the sanction order at Ex. P51 in order to establish that there was valid prosecution sanction as contemplated under section 19 of the PC Act. The testimony of PW9, the then Under Secretary to Government, Ports and Internal Water Transport Department, Public Works Department, Bengaluru is that the office of the Principal Secretary, Public works Department received copies of FIR, Search Mahazar, Income and expenditure file of accused, Final Report and statement of 10 Spl.C.C.No.191/2009 witnesses pertaining to this case from Additional Director General of Police, Karnataka Lokayuktha, Bangalore seeking permission to prosecute the accused is not under challenge. It is his evidence that the Principal Secretary sent the entire file to him and he made file noting and sent the file to the Deputy Secretary, from there the file was sent to the Principal Secretary, then to Minister for Public Works, who approved the file noting and ordered for issuance of the sanction order for prosecuting the accused and the case file came back to him. He further deposed that after perusing the documents made available to him, he arrived at a conclusion that prima facie grounds existed to accord prosecution sanction. The further testimony of PW9 is that when the prosecution sanction was sought by the Lokayuktha police the accused was working as Assistant Engineer at the Public Works Department and hence, he is the competent authority having power of removal of the accused from service and accordingly he issued sanction order at Ex. P51. In the cross examination he admits that 11 Spl.C.C.No.191/2009 the Lokayuktha police have sent income tax returns submitted by the accused, his wife and children. He further deposed that on the basis of the Final Report he has written the particulars of income and expenditure in Ex. P51. He deposed that he placed all the original documents before the Minister and the Minister after perusing the original documents has approved the notes for issuing the prosecution sanction order. Nothing has been brought out in his cross examination with regard to his incompetency in issuing the sanction order. The validity of the sanction order would depend upon the materials placed before the sanctioning authority and the fact that all the relevant materials and facts have been considered by the sanctioning authority. Thus, upon appreciation of his evidence it is clear that he is the competent authority to accord sanction for prosecution of the accused and accordingly after perusal of the documents placed before him, he has accorded sanction for prosecution. On the strength of the evidence of PW9 coupled with the contents of Ex. P51, I have no hesitation 12 Spl.C.C.No.191/2009 whatsoever to hold that sanction order at Ex. P51 is valid. Thus, the prosecution has succeeded to discharge its burden in establishing that there is valid prosecution sanction order to prosecute the accused.
8. Now, coming to the facts of the prosecution case that the accused has accumulated disproportionate to the known source of income during the check period from 21.02.1983 to 06.12.2006. It is the specific case of the prosecution that the accused has amassed wealth in his name and in the name of his family members illegally during the check period. Hon'ble Supreme Court in (1991) 3 SCC page 6555 in K. Veeraswamy V/s Union of India has held that:
"Statutory evidence which must be proved by the prosecution, it is for the prosecution to prove that the accused or any person on his behalf has been in possession of pecuniary resource or property disproportionate to his known source of income. When that onus is 13 Spl.C.C.No.191/2009 discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionate of the properties possessed by him."
In view of the said decision, while considering the commission of an offence under section 13(1)(e) of the PC Act, it is relevant to note that the initial burden to prove that either the accused or any member of his family member at any point of time been in possession of the property disproportionate to his known source of income, lies on the prosecution. If the initial burden is not discharged by the prosecution the onus does not shift to the accused to offer his explanation as to how he could have been in possession of either directly or through some other members of his family in possession of the property disproportionate to the known source of income.
9. The case of the prosecution is that the accused hails from a poor agricultural family of Doddaholagamadihalli, Bangarpete Taluk, Kolar District and they were 6 sons and 4 14 Spl.C.C.No.191/2009 daughters to their parents. His father had only four acres of land at Valagamadihalli and as his father was facing difficult to maintain the family, he sold the said land in the year 1970 and came to Kadugodi village, Whitefield Road, Bengaluru to set up their permanent abode there. It is alleged that all the properties standing in the name of the accused, his wife and his children are the self-acquired properties of the accused since, the parents of the accused were not in a position to help him as they were not having any immovable properties. Accused after his B.E. graduation from the Visweswaraiah Engineering College, Varthur joined the Public Works Department on 21.03.1983. He got married to Smt. Sujatha Singh on 28.3.1986, out of the wedlock they have two children Abhishek Singh, who was then studying M.B.B.S. and Nikil Bush who was in high school during 2006. The wife of the accused is a home maker without any independent source of income of her own. His mother Late Sethubayi, who expired on 10.07.1996 was holding a bar 15 Spl.C.C.No.191/2009 license No.EXE/IML/BNG/ CL.9/ULR/25/86-87 in the name of Pradeep Bar and Restaurant, Hoodi village, Bengaluru.
10. On receiving credible information that the accused has amassed wealth disproportionate to his known source of income a preliminary enquiry was conducted by the Dy.S.P., Karnataka Lokayuktha, Bengaluru and a Source Report was prepared and submitted to the Superintendent of Police, Karnataka Lokayuktha, Bengaluru City, who made an order to investigate the case and as such after the registration of FIR a raid was conducted at the residential premises of the accused and at the flat where the son of the accused was residing by the Investigating Officer and his team and many movable properties, gold ornaments, silver articles, cash and documents showing the possession of immovable properties were unearthed by the Investigating Officer. During investigation it was found by the Investigating Officer that the assets in the possession of the accused and his family members and expenditure incurred by him during the check 16 Spl.C.C.No.191/2009 period i.e., from 21.02.1983 to 06.12.2006 were not tallying with the income he received from his known source of income during that period and hence, explanation from the accused was sought for by the Investigating Officer. The accused furnished his explanations in schedules No. 1 to 23 and since, the explanations given were not satisfactory the Investigating Officer laid charge sheet against the accused alleging that the accused was found in possession of excess of 95.04% of disproportionate assets to his known source of income.
11. To substantiate the allegation the prosecution examined 9 witnesses and got marked 54 documents as Ex. P1 to P54. As already discussed, PW9 is the sanctioning authority who had accorded sanction to prosecute the accused. PW1 and PW3 are the mahazar witnesses of the search conducted on 06.12.2006 at the residential premises and the flat of the accused respectively. PW2 is the key witness of the prosecution who after preliminary enquiry 17 Spl.C.C.No.191/2009 prepared source report, registered the case against the accused as per the order of the Superintendent of Police, conducted investigation of the case and submitted the charge sheet against the accused. PW4 is the Joint Director of the Karnataka Lokayuktha, Bengaluru City Statistics Division, who prepared the domestic expenditure of food and other invisible expenses the accused and his family members. PW5 is the Assistant Executive Engineer of the Karnataka Lokayuktha, Bengaluru City Technical Division, who prepared the building valuation reports of the buildings possessed by the accused and his family members. PW6 is the Joint Director, Horticultural Department, Bengaluru Rural District, who collected the report of horticultural income of the accused from PW8, who was the Assistant Director of Horticultural Department and who had assessed the horticultural income of the accused as per the information provided by the Investigating Officer. PW7 is the Assistant Agricultural Director, Agricultural Department, Bengaluru Rural District who had assessed the agricultural income of 18 Spl.C.C.No.191/2009 the accused and his family members and submitted the report to the Investigating Officer.
12. As per the allegation in the charge sheet the accused as on 06.12.2006 had acquired assets from the date of his joining the government service to the tune of Rs. 1,43,55,805.76 as per Table No. A1.
TABLE No. A1 Assets of the accused as per the investigating officer.
Sl. Value in
Particulars of the assets
No. Rupees
1 i) Site No.81 of Kadugodi 10,000.00
ii) Building constructed in site 2,43,000.00
No.81
iii) Electricity deposits 950.00
i) Purchase value of site No. 9 7,500.00
2
and 10 (Gouthami Nest)
ii) value of the building 40,25,000.00
iii) Electricity deposits 35,124.00
iv) Water deposits 1,868.00
i) value of the Site No.2502 2,15,847.00
3
HAL
ii) Value of the building 7,11,000.00
iii) Electricity deposits 2,340.00
iv) Water deposits 784.00
i) Value of Site No.9 and 26 16,000.00
4
(Pradeep Bar)
19 Spl.C.C.No.191/2009
ii) value of the building 79,200.00
iii) Electricity deposits 2,055.00
i) Value of site No.684 and 685 70,000.00
5
of Kadugodi
ii) Value of building 2,44,800.00
(commercial complex)
iii) Electricity deposits 246.00
6 i) Value of site No.269/1A 9,500.00
ii) value of the building 3,600.00
i) Value of the property at 3,10,000.00
7
Bisavanahalli
ii) Value of farm house 2,88,000.00
iii) value of pump house 18,900.00
iv) value of sump tank 25,200.00
Value of the property bearing 23,00,000.00
8
Sy No 1, 2 and 3 of Bellahalli
9 Value of site No.31 of Kadugodi 17,000.00
10 Value of site No.54 of Kadugodi 1,93,000.00
Value of site No.54/1 of 35,000.00
11
Kadugodi
Value of site No. 11 and 12 of 1,32,000.00
12
Kadugodi
Value of site No.473 and 476 of 17,62,000.00
13
Whitefield
14 Value of skoda car 13,37,810.00
15 Value of Maruthi van 2,37,834.00
16 Value of Maruthi Zen 3,77,868.65
17 Value of suzuki mobike 1,47,880.00
Balance maintained in City Bank 44,818.00
18
account
Balance maintained in the 10,991.00
19
Credit Account at Vijaya Bank
Balance maintained in the S.B. 2,52,443.21
20
Account, Vijaya Bank
Balance maintained in the S.B. 3,06,271.00
21
Account, Vijaya Bank
20 Spl.C.C.No.191/2009
Balance maintained in the S.B. 23,950.00
22
Account, Andhra Bank
Balance maintained in the 2,338.00
23 S.B.Account, State Bank of
India
24 Deposits at Gas Agency 3,300.00
25 Salary balance 1,57,128.00
Cash, Gold and other items 6,93,261.00
26 found in residence of accused
during search
Total 1,43,55,806.86
13. The following assets in Table No. A2 below are not disputed by the accused:
TABLE No. A2 Sl. Value in Particulars of the assets No. Rupees 1 i) Site No.81 of Kadugodi 10,000.00
ii) Electricity deposits 950.00 Purchase value of site No.9 and 7,500.00 2 10 (Gouthami Nest)
i) value of the Site No.2502 2,15,847.00 3 HAL
ii) Electricity deposits 2,340.00
iii) Water deposits 784.00
i) Value of Site No.9 and 26 16,000.00 4 (Pradeep Bar)
ii) Electricity deposits 2,055.00
i) Value of site No.684 and 685 70,000.00 5 of Kadugodi
ii) Electricity deposits 246.00 21 Spl.C.C.No.191/2009 6 i) Value of site No.269/1A 9,500
ii) value of the building 3,600.00 Value of the property at 3,10,000.00 7 Bisavanahalli Value of the property bearing 23,00,000.00 8 Sy No 1, 2 and 3 of Bellahalli 9 Value of site No.31 of Kadugodi 17,000.00 10 Value of site No.54 of Kadugodi 1,93,000.00 Value of site No.54/1 of 35,000.00 11 Kadugodi Value of site No. 11 and 12 of 1,32,000.00 12 Kadugodi Value of site No.473 and 476 of 17,62,000.00 13 Whitefield
14 Value of Skoda car 13,37,810.00 15 Value of Maruthi van 2,37,834.00 16 Value of Maruthi Zen 3,77,868.65 Balance maintained in City Bank 44,818.00 17 account Balance maintained in the 10,991.00 19 Credit Account at Vijaya Bank Balance maintained in the S.B. 2,52,443.21 19 Account, Vijaya Bank Balance maintained in the S.B. 3,06,271.00 20 Account, Vijaya Bank Balance maintained in the S.B. 23,950.00 21 Account, Andhra Bank Balance maintained in the 2,338.00 22 S.B.Account, State Bank of India 23 Deposits at Gas Agency 3,300.00 24 Salary balance 1,57,128.00 Total 78,42,573.86 22 Spl.C.C.No.191/2009
14. The following assets mentioned in Table No. A3 below are disputed by the accused:
TABLE No. A3 Sl. Value in Particulars of the assets No. Rupees
ii) Building constructed in site 2,43,000.00 1 No.81
i) Value of the building 40,25,000.00 2 constructed in site N. 9 and 10 (Gouthami Nest)
ii) Electricity Deposits 35,124.00
iii) Water Deposits 1,868.00 Value of the building 7,11,000.00 3 constructed at Site No.2502 Value of the building 79,200.00 4 constructed in No.9 and 26 (Pradeep Bar) Value of the building 2,44,800.00 5 constructed in site No.684 and 685 of Kadugodi 6 Value of farm house 2,88,000.00 7 Value of pump house 18,900.00 8 Value of sump tank 25,200.00 Value of the property bearing 23,00,000.00 9 Sy No 1, 2 and 3 of Bellahalli 10 Value of the suzuki mobike 1,47,880.00 Cash, Gold and other items 6,93,261.00 11 found in residence of accused during search Total 88,13,233.00 23 Spl.C.C.No.191/2009
15. Let me take into consideration the assets disputed by the accused one by one with the evidence adduced by the prosecution and the arguments of the learned Public Prosecutor and the learned counsel for the accused.
16. Learned counsel for the accused vehemently argued that Section 13(1)(e) of the PC Act, is akin to Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and 304-B of the Indian Penal Code, 1860 (the IPC) which carries reverse burden of proof on the accused and he brought to the notice of this Court that the Investigating officer/PW2, B. Parameshwarappa has prepared a Source Report and on the basis of his own Source Report, PW2 himself registered the case and submitted the FIR to the Court and again he conducted the investigation and submitted the Final Report after completion of investigation. Therefore, there is every chance of investigating officer being interested in the case to see that the accused is convicted and hence, there is no fair 24 Spl.C.C.No.191/2009 investigation done in this case as the investigating officer is prejudiced. He placed reliance on the decision of the Hon'ble Supreme Court in Mohan Lal V/s The State of Punjab reported in 2018 AIR (SC) 3853 wherein it is held by the Hon'ble Apex Court that if an informant police official in a criminal prosecution especially when carrying a reverse burden of proof, makes the allegation, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. The learned counsel for the accused further demonstrates how the investigating officer is prejudiced.
17. He points out the instances where the Investigating Officer seems obviously prejudiced during investigation:
i. In his evidence at para 57 page 27, PW2 admits that Dodda Chowdappa, the Chief Engineer, Technical Section, Karnataka Lokayuktha, Bengaluru earlier had given a valuation report of the buildings possessed by the accused and his wife which shows the value as Rs. 21,91,200/-. On 30.10.2007 again the Assistant Engineer of Technical Section 25 Spl.C.C.No.191/2009 Karnataka Lokayuktha Sri. Srinivas/PW5 has given another report Ex. P41 valuing the buildings at Rs. 56,38,700/-.
Therefore, there are two reports, and the Investigating Officer has taken into consideration the report Ex. P41 and taken Rs. 56,38,700/- as value of the building which is much higher than the 1st report only to increase the value of the assets of the accused.
ii. In his evidence at para 60 page 28, PW2 admits that since, the accused has not furnished the original lease deeds, he has not taken the rental incomes derived from the house properties of the accused as income of the accused. The counsel further submitted that the original lease deeds will always be with the tenants and the copy of the same will be retained with the landlord and without considering this fact the Investigating Officer deliberately rejects the claim of the accused so as to lessen the income of the accused to rope him into this case. This is another instance which shows the investigating officer is prejudiced. 26 Spl.C.C.No.191/2009
iii. The learned counsel for the accused further referred page 37 para No.82 of the evidence of PW2/ investigating officer wherein he testifies that he received the Annual Property Returns of the accused for the years 1984- 85 to 2005-06 from the superior officer of the accused and since, these were the xerox copies he sent back the said documents to the Department and asked to submit the originals. Since, the original were not given to the Investigating Officer from the office of the accused, he has not considered the details mentioned in the APRs even though the Investigating Officer has admitted that he has not made any efforts to ascertain genuineness of the xerox copies of APRs furnished to him by the officer concerned.
iv. The learned counsel for the accused further referred to paras 47, 105, 106 and 107 of the deposition of PW 2/ investigating officer where he has admitted that the Gouthami Builders and Developers have raised loan of Rs. 7,70,000/- from one Smt. Ramabai and received the same 27 Spl.C.C.No.191/2009 from 01.04.1997 to 10.09.1999. Accused has furnished the receipt for having received the said amount by the Gouthami Builders and Developers and also accused produced the agreement showing the loan amount borrowed by Gouthami Builders and Developers from the said Ramabai. It is further admitted by the Investigating Officer in para 106 that the said loan amount finds mention in the balance sheet of Gouthami Builders and Developers and in para 107 he states that he tried to enquire the persons mentioned in the loan agreement and the tenants but they were not available and he has issued notice to them, but they have not appeared before him hence, he did not consider the same. This attitude of the Investigating Officer shows that he had predetermined to file charge sheet against accused.
v. The learned counsel for the accused further referred to page 51 para 112 where PW 2 has admitted that the accused had furnished the income tax returns submitted by him for the years 1996-97 to 2005-06 and income tax 28 Spl.C.C.No.191/2009 returns of the wife of the accused for the years 1996-97 to 2005-06 and the said documents bears the seal of the Income Tax Department and the originals of the said documents are at the Income Tax Department. His evidence is that he wrote a letter to the Income Tax Department to furnish the income tax returns submitted by the accused and his wife from the years 1996-97 to 2005-06 however, the Income Tax Department furnished only the four years' returns and therefore he has considered the income tax for the said four years only which also shows that the Investigating Officer has not conducted his investigation in a fair manner.
vi. He further argued that during the search, a R.C. book pertaining to a motor bike bearing registration No.KA.01.EB 8748 was found in possession of the son of the accused on the basis of the said RC book the investigating officer has erroneously included the value of the said vehicle into assets of the accused overlooking the fact that such a 29 Spl.C.C.No.191/2009 motor bike was neither in the possession of accused nor his son nor the Investigating Officer had ever come across such a motor bike which shows the zenith of determination of the Investigating Officer to rope in accused into this case.
vii. He further referred to paras 120, 121, 122 page 55 of evidence of PW 2 where his testimony is that he secured the account statements of joint account No.4720 belonging to the accused and his wife, account No.12913 pertaining to the accused and account No.470 standing in the name of Gouthami Builders and Developers maintained at Vijaya Bank and the amounts remitted to the said accounts through cheques and has not enquired the persons who had transferred the amounts through cheques to the said accounts. He further argued that the accused received the rental income through cheques and the said amounts are credited into his account. But the Investigating Officer has not considered any of these amounts into the income of the accused. Therefore, from the attitude of the investigating 30 Spl.C.C.No.191/2009 officer and the way he conducted the investigation clearly establishes that the investigating officer is prejudiced.
18. In reply the learned Public Prosecutor countered the contentions of the defense counsel that the Investigating Officer has conducted investigation as per the orders of his superior officer and the Source Report cannot be compared with the information received by the detecting officer of crime for offence under the provisions of the NDPS Act. The cases for offence u/s 13(1)(e) of the PC Act, is not akin to the offences under the provisions of NDPS Act. The accused is provided opportunity to explain his source of income after the Investigating Officer has collected all the evidence against the accused. Presumption provided u/s 20 of the PC Act is not applicable to offence u/s 13(1)(e) and therefore, the concept reverse burden of proof is not attracted to this case and hence the dictum laid down by the Hon'ble Supreme Court in Mohanlal's case (supra) is not applicable here in this case.
31 Spl.C.C.No.191/2009
19. In Mohanlal's case (supra) the Investigating Officer while on patrol duty came across the appellant/accused and raised doubt about the appellant/accused and hence, the accused was searched as per law and found contraband substances in the possession of the accused and hence, case was registered and after investigation charge sheet was laid by the detecting officer himself against the accused. The provisions of NDPS Act are stringent law which carries a reverse burden on proof and as per section 35 of the NDPS Act the Court shall presume the existence of culpable mental state of the accused for offence in any prosecution for an offence under NDPS Act which requires a culpable mental state of the accused. The culpable mental state is explained as to include intention, motive, knowledge of a fact and belief in or reason to believe, a fact. But there is no such presumption to be raised by the Courts dealing with the cases u/s 13(1)(e) of the PC Act. The trial under the NDPS Act needs strict adherence to the law and procedures since, the detection of crime by the 32 Spl.C.C.No.191/2009 authorized officer and an allegation that the accused was found in possession of contraband substances which is a question of fact, the presumption is to be raised by the Courts that such possession is with culpable mental state which poses reverse burden. This gives double presumption to the prosecution case. First, as per sec.114(e) of the Indian Evidence Act, 1872 (the Evidence Act) that the official Act of the detecting officer have been regularly performed and as per the search mahazar contraband articles has been recovered from the possession of the accused and secondly the presumption u/sec.35 of NDPS Act comes upon the accused to show that there was no culpable mental state in possessing the contraband substance with him. If the prosecution proves that the accused had contraband articles in his possession the Courts can raise presumption u/s 35 of the NDPS Act as to culpable mental state of the accused. Hence, there is possibility that the detecting officer being biased to see that the case detected by him is charge sheeted and the accused being convicted in the case where 33 Spl.C.C.No.191/2009 he has laid charge sheet. The case under the provisions of the PC Act is different. When an officer receives information that the government servant has amassed wealth disproportionate to his known source of income, the officer conducts preliminary enquiry and if he finds that there is truth in the information received, he submits his Source Report to his superior officer who in turn authorizes any officer to investigate into the matter. If the officer who had submitted the source report himself is authorized to investigate the case, all that he can do is to collect the documents showing the acquisition of assets by the accused and his family members, expenditure incurred and the source of income accused had, to procure the assets and for his expenditure. The case under section 13(1)(e) of PC Act rests on documentary evidence and if the accused satisfactorily explains the source of his income there is no offence at all committed by the accused. The officer who prepares source report is not the informant. He receives information from any reliable source and conducts 34 Spl.C.C.No.191/2009 preliminary enquiry and submits the source report to his superior officer. The law laid down in Mohanlal's case (supra) is applicable to cases where the informant and the investigator are one and the same person. The dictum laid down in para 25 of Mohanlal's case (supra) is extracted below:
"It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice may not only be done, but must appear to be done also. Any possibility of bias or a pre- determined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reserve burden of proof."
Therefore, the case on hand does not postulate the reserve burden of proof and also PW.2 is not the informant in stricto senso in this case. Hence, I find that no prejudice has been caused to accused as PW2 has prepared source 35 Spl.C.C.No.191/2009 report and he has investigated the case after registering FIR and has laid charge sheet before this court.
20. Now let me consider item wise the disputed assets of the accused mentioned in Table No. A3. Item No.1, 3 to 8 of Table A3 The learned counsel for accused argued elaborately touching all points in controversy and has extensively dealt with each and every aspect of income, expenditure and assets stressing that all properties acquired by the accused was out of his legitimate source of income. First of all, he disputed Item No.1, 3, 4, 5, 6, 7 & 8 stating that accused being civil engineer himself has constructed the buildings mentioned in these items on his supervision and hence 10% rebate on the construction cost of the building has to be given to him. It is further submitted by the Learned counsel for the accused that PW5 has stated in his valuation report that 10% rebate can be given in such circumstances. Therefore, he claims that the Investigating Officer purposely 36 Spl.C.C.No.191/2009 did not give this rebate. The Learned Public Prosecutor submits that there is no evidence on record to show that the accused himself has supervised the construction of these buildings and hence the Investigating Officer rightly did not give such a rebate to the accused. It is not in dispute that the accused is a civil engineer by profession and hence, even if there is no evidence on record to show that he himself had supervised the construction of these buildings, a presumption can be drawn in favour of accused and it can be presumed that he being a civil engineer might have supervised the construction of his buildings and hence, the contention of the learned counsel for the accused has to be accepted and 10% each has to be deducted from the value of the buildings in item No.1, 3, 4, 5, 6, 7 & 8 and the cost of the buildings in these items is revalued as Rs.2,18,700/-, Rs.6,39,900/-, Rs.71,280/-, Rs.2,20,320/-, Rs.2,59,200/-, Rs.17,010/- and Rs.22,680/- respectively. 37 Spl.C.C.No.191/2009 Item No.2 - Gouthami Nest
21. Land was in the name of accused and his wife. Purchase value of site No.9 and 10 where Gouthami Nest is situated is Rs 7,500/- which the investigating officer has included into the assets of accused and the expenditure of Rs 1,240/- towards stamp and registration duty is included into expenditure of accused. These two aspects are not disputed by the accused. But the learned counsel for the accused strenuously disputed the inclusion of the value of the building Rs. 40,25,000/- into his asset, on the ground that the company Gouthami Builders and Developers has built the Gouthami Nest. The said company came to be registered in 1994-95 and wife of accused is one of the partners of the company. This company had entered into a Memorandum of Understanding with accused and his wife to develop the site by constructing a three storied apartment with an agreement that after construction 40% of the built- up area shall be the share of the accused and his wife and remaining 60% shall be the company's share. The company 38 Spl.C.C.No.191/2009 constructed 8 flats on the ground and the three floors by raising loan from private persons and from sale of share. The company has its own bank account and the copy of the same is marked as Ex. D4 and D5. The accused also produced documents such as Memorandum of Articles of the Company, Articles of Association of the Company, Memorandum of Understanding between accused and his wife with the Company, etc. and claims that the investigating officer has wrongly included the value of building, the deposit amount paid to BWSSB and KPTCL for water and electricity consumption charges respectively into the account of asset of accused.
22. Accused also claims that investigating officer has not included the amount he received as rental income from the 40% share of flats he owned at Gouthami Nest Apartments and he claims Rs. 43,50,280/- is the amount he received during check period as rental income and advance 39 Spl.C.C.No.191/2009 amount of Rs. 5,95,000/- is in his hand to be returned to the tenants.
23. Accused got himself examined as DW 1 before this Court and in his examination-in-chief (page 6) para 13 he states that he had made a Memorandum of Understanding with Gouthami Developers and Builders in 1996-97 for joint development of his site situated No.9 and in the year 2000 he got two flats of 1000 Sq ft each and he had given these two flats for rent for 8 persons from 2000. His further testimony is that he had received rent and he had submitted the details of rents received and advance amount received by him to be returned to his tenants. Para 13 13 "£À£Àß ºÉ¸Àj£À°è EzÀÝ ¸ÉÊl £ÀA 9£ÀÄß UËvÀ«Ä ©®Øgïì CAqï qɪÀ®¥Àgïì gÀªÀjUÉ 1996-97£Éà ¸Á°£À°è JA.M.AiÀÄÄ ªÀÄÄSÉãÀ eÁ¬ÄAmï qɪÀ®¥ïªÉÄAmïUÉ ¤ÃrzÉ£ÀÄ. ¸ÀzÀj eÁ¬ÄAmï qɪɮ¥ïªÉÄAmï¤AzÀ 1999-2000£Éà ¸Á°£À°è £À£ÀUÉ vÀ¯Á 1000 ZÀzÀÄgÀ CrAiÀÄÄ JgÀqÀÄ ¥ÁèmïUÀ¼À£ÀÄß PÉÆlÖgÀÄ. ¸ÀzÀj ¥ÁèmïUÀ¼À£ÀÄß 2000£Éà E¸À«AiÀÄ vÀ£ÀPÀ EªÀwÛ£À vÀ£ÀPÀ £Á£ÀÄ ¨ÁrUÉ PÉÆnÖzÉÝãÉ. ¥ÁèmïUÀ¼À£ÀÄß PÉÆlÖ¢£À¢AzÀ EªÀwÛ£À vÀ£ÀPÀ ¸ÀĪÀiÁgÀÄ 40 Spl.C.C.No.191/2009 JAlÄ d£À ¨ÁrUÉzÁgÀgÀÄ ¨ÉÃgÉ ¨ÉÃgÉ CªÀ¢üAiÀÄ°è ¨ÁrUÉ ¥ÀqÉzÀÄ EzÀÝgÀÄ. JgÀqÀÄ ¥ÁèmïUÀ½AzÀ §gÀĪÀ ¨ÁrUÉ ºÀt ºÁUÀÆ ªÀÄÄAUÀqÀ ºÀtªÀ£ÀÄß £À£Àß E¯ÁSÉUÉ ¸À°è¹zÀ jl£ïðì £À°è vÉÆÃj¹gÀÄvÉÛãÉ. £Á£ÀÄ ¨ÁrUÉzÁgÀjAzÀ ¥ÀqÉzÀ gÀÆ 390000-00 UÀ¼À£ÀÄß »AwgÀÄV¸À¨ÉÃPÁVzÉ. "
24. In his chief examination para 21 (page 9) site No.10 he states that his wife got two flats of 1000 Sq ft each as her share in the Gouthami Nest and the said two flats were given to rent from 2000 and the details of amount received were given to the investigating officer but investigating officer did not consider the rental income for the reason that he had not taken the tenants to the investigating officer. To buttress his submission the learned counsel relied upon the decision in Krishnanand Agnihotri V/s State of M.P reported in (1977) 1 Supreme Court Cases page 816, where the Hon'ble Apex Court has held in (pp 830-31, para 26) "It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the 41 Spl.C.C.No.191/2009 person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof."
25. Keeping in mind the above principle laid down by the Hon'ble Apex Court, let me now analyzing whether the evidence on record produced by the prosecution is sufficient to prove that the Company Gouthami Builders and Development is a fictitious company registered only for the purpose of legalizing the illicit earned money of accused. Admittedly Smt. Sujatha Singh wife of accused is one of the 42 Spl.C.C.No.191/2009 partners of the company. Ex P7 is the schedule furnished by the accused. Page 492 to 626 of Ex P7 are the documents pertaining to the Gouthami Builders and Development which was registered on 19.09.1996. The company had two Directors namely Sujatha Singh and N.Shankar with Rs 50 lakhs share capital converted into 50,000 equity shares of Rs 100/- each. Sujatha Singh and Shankar had 10 equity shares each of Rs.100 each. Annual report of 1996-97 shows Pradeep Singh became Director on 20.09.1996 and N.Shankar retired on 21.03.1997. The Company had not received any profit from 1994 to 2000 since, the construction works were under progress during this period and as per the 5 Annual Reports of the Company furnished along with the schedule by the accused, the Annual Report of 2000-01 shows that the construction works were complete, the flats were ready for sale and since, no flats were sold during that period the flats were let out for rent and the annual income of the company during the period 2001-02 was only Rs.31,504/-.
43 Spl.C.C.No.191/2009
26. Ex. P41 and 54 are the valuation report of the buildings possessed by the accused and his family members. Page 3 of the Ex.P41 contains the valuation details of the Gauthami Nest Apartments. From the report, it is revealed that Gauthami Nest is a building which impregnates 8 flats, four 2BHK flats and four 3BHK flats as such ground floor and 3 floors above has in total 8 flats and a pent house at the terrace of the building on the fourth floor. Construction cost of the building is Rs. 40,25,000/- which is not at dispute. The electricity and water connections details of the said building are collected by the Investigating Officer and Ex.P17 is the details of electric connection. As per Ex. P17 there are 8 electric meter connections at the Gauthami Nest, four in the name of the accused and the other four in the name of his wife Smt. Sujatha Singh. The details of water connection to the Gauthami Nest collected by the Investigating Officer shows that there are 2 water connections to the said building 44 Spl.C.C.No.191/2009 one each in the name of the accused and his wife Smt. Sujatha Singh.
27. MoU of Gauthami Builders and Developers with accused and his wife depicts that 40% of the built-up area is the share of accused and his wife and the remaining 60% of the built-up area will be retained by the Company. As per Ex.P41 the built-up area of the building is 737.46 square meter which is equal to 8000 square feet. The accused in his testimony before this Court has deposed that 4 flats of 1000 square feet each were handed over to him and his wife, after the completion of the construction of Gauthami Nest by the builders. This comes to 50% of the built-up area of the building. Accused had furnished his explanation to the Investigating Officer with respect to the acquisition of the properties in his possession by way of producing the schedules and the schedules produced by the accused is marked at Ex. P7. He has given the details of the rental income he received from the flats at Gauthami Nest which 45 Spl.C.C.No.191/2009 shows that flat No. 001A, 002A, 002B, 003A and 003B belong to accused and his wife and they have received rental income from these flats from 2002 to 2006 which shows that these flats were owned by accused and his wife. Hence, this aspect can be treated as admissions that the accused and his wife owned 5 flats. The details of rental income they derived from these flats will be discussed later since, now I am only analyzing the assets of the accused. Ex. P42 are the certified copies of the sale deeds dated 16.10.2000 with respect to sale of two flats, one each by the accused and his wife, situated at the Gauthami Nest 3rd floor to one Bhupinder S. Kunwar. Therefore, as per accused, he owns 5 flats at Gauthami Nest as per his schedule, besides he sold 2 flats to Bhupinder S. Kunwar as per Ex. P42. Cumulative reading of Ex. P41 and P42 shows that accused and his wife had 7 flats at the Gauthami Nest which comes to 7000 square feet. Then comes the question where is the share of flats owned by the Gauthami Builders and Developers? Prosecution has proved beyond reasonable doubt that the 46 Spl.C.C.No.191/2009 accused and his wife were the owners of 7 flats at the Gauthami Nest out of the 8 flats. Therefore, the contention of the accused that he and his wife has only 40% share in the Gauthami Nest i.e., 4 flats out of 8 flats in Gauthami Nest cannot be appreciated.
28. The learned counsel for the accused vehemently opposed the clubbing of the value of the building Gauthami Nest into the assets of the accused and he argued that the accused is in no way connected to the company Gauthami Builders and Developers which constructed Gauthami Nest. To substantiate his contention, he took my attention to the schedule furnished by the accused to the Investigating Officer which is marked at Ex. P7 and demonstrated that the Gauthami Builders and Developers is a Company registered as per the Company's Act and the company is submitting its annual report to the Registrars of the Company every year. On perusal of the copy of Annual Reports of the Company, there are 5 Annual Reports of the Company from 1996-97 to 47 Spl.C.C.No.191/2009 2001-02 and includes 1st Annual Report of 1996-97, 2nd Annual Report of 1997-98, 3rd Annual Report of 1998-99, 5th Annual Report of 2000-01 and 6th Annual Report of 2001-02. As per these documents the construction of Gauthami Nest was completed during the year 1999-2000 and the 40% share of flats of accused and his wife were handed over to accused and his wife during this period. From the thorough perusal of the Annual Reports of the Company it can be seen that the 4th Annual Report pertaining to the year 1999-2000 is conspicuously missing. Accused has produced a letter dated 01-04 2000 given to him by the Company Gauthami Builders and Developers which reads that the 40% of the built-up area i.e., 2000 square feet each flats for plot No.9 and plot No.10 were handed over to the accused and his wife respectively. The 5th and 6th Annual Reports show that the flats are ready for sale and as they could not be sold the flats have been let out for rent. These reports are silent as to how many flats have been let out for rent. How many flats 48 Spl.C.C.No.191/2009 were handed over to the accused as per the MoU is not forthcoming from the documents produced before this Court.
29. The accused in his substantive evidence before this Court has deposed that he received 2 flats and his wife received 2 flats at the Gauthami Nest but he does not speak about the sale of two flats at 3rd floor of the Gauthami Nest to Bhupinder S. Kunwar in the year 2000. His testimony is that he and his wife owned 4 flats and they are periodically receiving rental income out of those flats from 2000.
30. The learned Public Prosecutor has elicited while cross-examining the accused/DW1 that the company Gauthami Builders and Developers have not taken up any projects other than the Gauthami Nest till date. The learned Public Prosecutor argued that there were no business activities in respect of this Company other than the Gauthami Nest and the Company has not received any profits and therefore, I find considerable merit in his submission that the Company is floated only to channelize 49 Spl.C.C.No.191/2009 the illegally earned money of the accused has to be accepted. On the conjoint reading of the testimonies of the accused/DW1, PW5, the engineer who prepared valuation report of the Gauthami Nest with Ex. P41, P42 and P17 coupled with the Ex. P7/schedule furnished by the accused it is clear that the accused could not probabalise his defense that Gauthami Builders and Developers is a company having its own entity and the accused has not invested any money to build Gauthami Nest, on the other hand it can be safely concluded that the prosecution has proved beyond reasonable doubt that the building Gauthami Nest is built by the accused and he is in possession of the whole building from the date of its constructions and hence, the Investigating Officer has rightly included the value of the building, the deposits made by the accused and his wife for electricity and water connections to the said building into the assets of the accused. Therefore, the construction value of the building Gauthami Nest Rs.40,25,000/- cannot be excluded from the assets of the accused.
50 Spl.C.C.No.191/2009
Item No.9 value of landed property at Billahalli
31. Value of the Property which is standing in the name of wife of the accused and one Shivappa is Rs.46,00,000/- and the Investigating Officer has taken Rs.23,00,000/- i.e., half price of the said property and included into the assets of the accused. This inclusion is strongly disputed by the counsel for the accused on the ground that the said property was purchased jointly by Smt.Sujatha Singh, wife of the accused, along with one B.K.Shivappa from Mr.Arthri for a sale consideration of Rs.46,00,000/- and an amount of Rs.42,00,000/- has been paid by the said B.K.Shivappa to the seller Sri.Arthri. This aspect has been declared by Smt.Sujatha Singh in her I.T. returns for the year 2005-06 and hence the Investigating Officer has wrongly included the half value of the property i.e., Rs.23,00,000/- into the assets of the accused instead of taking the whole Rs.42,00,000/- into the income of the accused. The Learned Public Prosecutor submits that there is no evidence on record to show that B.K.Shivappa has given 51 Spl.C.C.No.191/2009 Rs.42,00,000/- to Smt. Sujatha Singh other than a xerox copy of separate statement pinned with the copy of I.T. returns of Smt.Sujatha Singh for the year 2005-06. The Learned PP also tried to appreciate this court that the accused is relying upon the bank statements which are marked at Ex.D1 to D3 and claims that Smt.Sujatha Singh received the said amount from B.K.Shivappa. He brought to the notice of this court that no specific entry with respect to the receipt of Rs.42,00,000/-. To this the Learned counsel for the accused submitted that Rs.42,00,000/- was given to Smt.Sujatha Singh in 2-3 installments and in turn the said amount is deposited to the account of Sri.Arthri Malhothra by Smt.Sujatha Singh. The Learned Public Prosecutor submitted that the bank records submitted by the accused at Ex.D1 to 3 does not show any entry which depicts that any Shivappa.B.K. has advanced any amount to Smt.Sujatha Singh or to accused. He also submits that the said Shivappa is not examined before this court to substantiate that he had in fact given this amount to either accused or Smt.Sujatha 52 Spl.C.C.No.191/2009 Singh. Hence, the prosecution was deprived of the opportunity to elicit the source of income of the said Shivappa, to give such a huge amount to Smt.Sujatha Singh. Whether this Shivappa is an Income tax Assesse or payee or not is not forthcoming from the available records. In absence of such an evidence the contention of the accused that he received such a huge amount from Shivappa could not be accepted. The Learned Public Prosecutor submitted that even if it is accepted that Shivappa had advanced such an amount whether this amount was repaid to Shivappa or not, if it is repaid whether it was repaid within the check period or not is not forthcoming. Therefore, he prays the court to reject the claim of the accused.
32. From the line of argument advanced by the learned counsel for accused his request to this Court is to exclude the amount of Rs. 23,00,000/- which is half the consideration amount paid to the seller of the property situated at Billahalli, which now stands in the name of the 53 Spl.C.C.No.191/2009 wife of the accused and B.K. Shivappa jointly. The total value of the property is not at dispute. The only aspect disputed is that the wife of accused did not incur any expenditure to purchase the said amount since, the sale consideration was paid from the loan amount of Rs. 42,00,000/- advanced by the said Shivappa B. K. to Smt. Sujatha Singh. As per section 91 of the Evidence Act, when any disposition of property is reduced to writing and in all cases in which matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the disposition of the property except the document itself and as per section 92 of the Evidence Act when the disposition of property which is required by law to be reduced to the form of a document has been proved as per section 91 by producing the document, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying adding to or subtracting from its terms or contents. The document is produced before the court which shows that an amount of Rs. 46,00,000/- is 54 Spl.C.C.No.191/2009 the consideration amount and Rs. 46,495 is the registration charges paid for the registration of the sale deed. Hence, the Investigating Officer considered the half of the sale proceedings into the assets of the accused and half of the registration charges into the expenditure of the accused. It is mentioned in the sale deed that the stamp duty of Rs. 4,15,860/- has been paid by the said Shivappa B. K. and hence, the Investigating Officer has not taken that amount to the expenditure of the accused. Hence, the argument of the learned counsel for accused that the half value of the property ought not to be taken into the assets of the accused holds no water. Since, the value of the property is not disputed and the wife of the accused holding half share in the property is also not in dispute, its half value is to be included into the assets of the accused. The statements of accounts produced by the accused and marked at Ex. D1 to D3 also shows the amount transferred to the account of Sri. Arthri Malhothra through the account of Smt. Sujatha Singh. Whether the amount given to the seller by the wife of 55 Spl.C.C.No.191/2009 accused was the loan amount advanced to her by Shivappa B. K. or not will be discussed in the later part of this judgement while considering the income heads of the accused.
ITEM NO.10 value of Suzuki Motor bike.
33. The Learned counsel for the accused strenuously opposed that the Investigating Officer has wrongfully included the value of motorbike No. KA-01-EE-8748 into the asset of the accused on the ground that a registration certificate book of the said motor bike was found at the flat where the son of the accused was residing during search and prayed that this has to be deleted from the value of assets of the accused.
34. During search at Flat No.3B, Gouthami Nest on 6.12.2006, where son of accused, Abhishek Singh was residing original R.C book of Motor bike No. KA 01 EE 8748 was found by the investigating officer. Ex. P27 RC particulars of the motorbike reveals that the owner of the 56 Spl.C.C.No.191/2009 vehicle is one Sri.Baburaj Attawar and the prosecution case is that accused had purchased the motorbike in the name of Baburaj Attawar. On investigation, the said Sri.Baburaj Attawar could not be traced and no addressee was found in the address mentioned in the R.C. book.
35. The investigating officer in his cross examination page 52 para 113 has deposed that ¸ÀzÀj ªÁºÀ£À DgÉÆæAiÀÄ ªÀÄUÀ C©üµÉÃPï ¹AUï gÀªÀgÀ ¸Áé¢üãÀzÀ°è EvÀÄÛ JAzÀÄ £À£Àß vÀ¤SÉAiÀÄ°è PÀAqÀħA¢gÀÄvÀz Û É. ¸ÀzÀj ªÁºÀ£ÀªÀ£ÀÄß ¨Á§ÄgÁeï DmÁÖªÀgïgÀªg À ÀÄ AiÀiÁjAzÀ Rjâ ªÀiÁrgÀÄvÁÛgÉ J£ÀÄߪÀ §UÉÎ AiÀiÁªÀ zÁR¯ÉU¼ À ÀÄ EgÀĪÀÅ¢®è."
Even though the investigating officer says that from his investigation, it is revealed that the said motor bike was in the possession of accused's son, nothing corroborating documentary evidence with regard to the said possession is produced by the investigating officer. In his further evidence at page 52, though the investigating officer states that he 57 Spl.C.C.No.191/2009 made attempts to trace out the RC owner of the motor bike, he in his substantive evidence does not speak about any of such attempts made by him nor he produces any documents to prove the same. Hence, the inclusion of the value of the vehicle into the assets of accused and the inclusion of the expenses of the motorbike into the expenditure of the accused cannot be appreciated and therefore, I find force in the submissions of the learned counsel for the accused and this amount has to be deducted from the assets of the accused as rightly pointed out by the learned counsel for the accused.
Item No.11 - value of cash, gold and household articles.
36. The accused has disputed the value of household articles, gold, silver etc. It is submitted that there is no evidence to show that whether the gold articles were valued after deducting stones, pearls, studs etc., from the total weight of the gold ornaments. Therefore, he claims 10% needs to be deducted from the value which is Rs. 69,326/-. 58 Spl.C.C.No.191/2009 The investigating officer has not stated whether he has calculated the value including stones etc., into the weight of gold and arrived at the value he has stated. Therefore, the claim of accused that 10% to be deducted is accepted and hence, the value in item number 11 of Table 'A3' would be Rs. 6,23,935/-.
37. Therefore, from the records and evidence the assets of accused proved would be as per the Table No.A4 below.
TABLE NO.A4
Sl. Value in
Particulars of the assets
No. Rupees
1 i) Site No.81 of Kadugodi 10,000.00
ii) Building constructed in site 2,18,700.00
No.81
iii) Electricity deposits 950.00
i) Purchase value of site Nos 9 7,500.00
2
and 10 (Gouthami Nest)
ii) value of the building 40,25,000.00
iii) Electricity deposits 35,124.00
iv) Water deposits 1,868.00
i) value of the Site No.2502 2,15,847.00
3
HAL
ii) Value of the building 6,39,900.00
59 Spl.C.C.No.191/2009
iii) Electricity deposits 2,340.00
iv) Water deposits 784.00
i) Value of Site No.9 and 26 16,000.00
4
(Pradeep Bar)
ii) value of the building 71,280.00
iii) Electricity deposits 2,055.00
i) Value of site No.684 and 685 70,000.00
5
of Kadugodi
ii)Value of building (commercial 2,20,320.00
complex)
iii) Electricity deposits 246.00
6 i) Value of site No.269/1A 9,500.00
ii) value of the building 3,600.00
i) Value of the property at 3,10,000.00
7
Bisavanahalli
ii) Value of farm house 2,59,200.00
iii) value of pump house 17,010.00
iv) value of sump tank 22,680.00
Value of the property bearing 23,00,000.00
8
Sy No 1, 2 and 3 of Bellahalli
9 Value of site No.31 of Kadugodi 17,000.00
10 Value of site No.54 of Kadugodi 1,93,000.00
Value of site No.54/1 of 35,000.00
11
Kadugodi
Value of site No. 11 and 12 of 1,32,000.00
12
Kadugodi
Value of site No.473 and 476 of 17,62,000.00
13
Whitefield
14 Value of skoda car 13,37,810.00
15 Value of Maruthi van 2,37,834.00
16 Value of Maruthi Zen 3,77,868.65
17 Value of suzuki mobike ----
Balance maintained in City 44,818.00
18
Bank account
Balance maintained in the 10,991.00
19
Credit Account at Vijaya Bank
60 Spl.C.C.No.191/2009
Balance maintained in the S.B. 2,52,443.21
20
Account, Vijaya Bank
Balance maintained in the S.B. 3,06,271.00
21
Account, Vijaya Bank
Balance maintained in the S.B. 23,950.00
22
Account, Andhra Bank
Balance maintained in the 2,338.00
23 S.B.Account, State Bank of
India
24 Deposits at Gas Agency 3,300.00
25 Salary balance 1,57,128.00
Cash, Gold and other items 6,23,935.00
26 found in residence of accused
during search
Total 1,39,77,590.86
38. As per the allegation in the charge sheet the accused as on 06.12.2006 has made expenditure from the date of his joining the government service to the tune of Rs.56,05,360.02 as per Table No. B1.
TABLE NO.B1
Sl. Expenditure in
Particulars of expenditure
No. Rupees
1 i) Site No.81 of Kadugodi 1,540.00
ii) Electricity deposits of the 91,075.00
building
iii) Tax 5,587.00
i) Purchase value of site Nos 9 1,240.00
2
and 10 (Gouthami Nest)
ii) Electricity deposits 32,593.00
61 Spl.C.C.No.191/2009
iii) Electricity deposits 2,11,800.00
iv) Tax 2,26,113.00
v) Water deposits 40,291.00
i) Purchase of the Site No.2502 4,380.00
3
HAL
ii) Tax 47,100.00
i) Stamp duty on Site No.9 and 2,350.00
4
26 (Pradeep Bar)
ii) Tax 7,590.00
i) Purchase of site No.684 and 10,520.00
5
685 of Kadugodi
ii) Tax 2,336.00
ii) Tax 150.00
6 i) Purchase of site No.269/1A 271.00
i) Purchase of the property at 47,728.00
7
Bisavanahalli
ii) Purchase of GI Pipes 42,450.00
Purchase of the property 23,247.50
8 bearing Sy No 1, 2 and 3 of
Bellahalli
Expenditure on site No.31 of 2,610.00
9
Kadugodi
Expenditure on site No.54 of 28,085.00
10
Kadugodi
Expenditure on site No.54/1 of 5,000.00
11
Kadugodi
Expenditure on site No. 11 and 19,240.00
12
12 of Kadugodi
Expenditure on site No.473 and 1,68,824.00
13
476 of Whitefield
14 Expenditure on skoda car 2,26,590.00
15 Expenditure on Maruthi van 23,547.00
16 Maintenance of Maruthi Van 2,36,126.00
17 Maintenance of Maruthi Van 24,173.00
18 Expenditure on Maruthi Zen 28,075.00
62 Spl.C.C.No.191/2009
20 Expenditure on suzuki mobike 26,025.00
21 Expenditure on Golf Manor 7,52,696.00
Expenditure on site No.220 16,085.00
22
Gaddalahalli
Expenditure incurred in respect 450.00
23
of City Bank account
24 Visa Credit card service charges 13,056.00
25 Visa credit card 20,839.00
26 Loan account, Vijaya Bank 9,62,354.00
27 Fixed Deposit Vijaya Bank 6,00,000.00
28 Loan account Andhra Bank 1,24,371.00
30 Loan account at Andhra Bank 2,30,000.00
31 Expenditure on BSNL 60,273.00
32 Expenditure on Airtel 34,329.55
Expenditure incurred on 4,96,895.00
33
education of Abishek
Expenditure incurred on 1,82,347.00
34
education of Nikhil
35 Expenditure on Gas 8,269.00
36 Expenditure Zero B Kitchen 18,500.00
37 Expenditure on Indranagar 63,370.00
38 Salary expenditure 42,216.00
39 Family expenditure 3,92,650.00
Total 56,05,360.15
39. The expenditure shown in Table No.B2 below is not disputed by the accused:
TABLE NO.B2 Sl. Expenditure Particulars of expenditure No. Rupees 1 i) Site No.81 of Kadugodi 1,540.00
ii) Electricity deposits of the 91,075.00 building 63 Spl.C.C.No.191/2009
iii) Tax 5,587.00
i) Purchase value of site Nos 9 1,240.00 2 and 10 (Gouthami Nest)
ii) Electricity deposits 32,593.00
iv) Tax 2,26,113.00
v) Water deposits 40,291.00
i) Purchase of the Site No.2502 4,380.00 HAL 3 ii) Tax 47,100.00
i) Expenditure incurred for 2,350.00 4 payment of tax in respect of Site No.9 and 26 (Pradeep Bar)
i) Purchase of site No.684 and 10,520.00 5 685 of Kadugodi
ii) Tax 2,336.00
i) Expenditure on site 150.00 6 No.269/1A
ii)Tax 271.00
i) Purchase of the property at 47,728.00 7 Bisavanahalli
ii) Purchase of GI Pipes 42,450.00 Purchase of the property 23,247.50 8 bearing Sy No 1, 2 and 3 of Bellahalli Expenditure on site No.31 of 2,610.00 9 Kadugodi Expenditure on site No.54 of 28,085.00 10 Kadugodi Expenditure on site No.54/1 of 5,000.00 11 Kadugodi Expenditure on site No. 11 and 19,240.00 12 12 of Kadugodi Expenditure on site No.473 and 1,68,824.00 13 476 of Whitefield 14 Expenditure on Skoda car 2,26,590.00 64 Spl.C.C.No.191/2009 15 Expenditure on Maruthi van 23,547.00 16 Maintenance of Maruthi Van 2,36,156.00 17 Maintenance of Maruthi Van 24,173.00 18 Expenditure on Maruthi Zen 28,075.00 Expenditure on site No.220 16,085.00 20 Gaddalahalli Expenditure incurred in respect 450.00 21 of City Bank account 22 Visa Credit card service charges 13,056.00 23 Visa credit card 20,839.00 24 Loan account, Vijaya Bank 9,62,354.00 25 Fixed Deposit Vijaya Bank 6,00,000.00 26 Loan account Andhra Bank 1,24,371.00 27 Loan account at Andhra Bank 2,30,000.00 28 Expenditure on BSNL 60,273.00 30 Expenditure on Airtel 34,329.55 Expenditure incurred on 4,96,895.00 31 education of Abishek Expenditure incurred on 1,82,347.00 32 education of Nikhil 33 Expenditure on Gas 8,269.00 34 Expenditure Zero B Kitchen 18,500.00 35 Expenditure on Indranagar 63,370.00 36 Salary expenditure 42,216.00 Total 42,14,926.05
40. The accused has disputed the amount mentioned in Table No.B3 below.
TABLE NO.B3
Sl. Expenditure
Particulars of expenditure
No. Rupees
Gouthami Nest - Electricity 2,11,800.00
1
charges
65 Spl.C.C.No.191/2009
Suzuki Motorbike - Maintenance 26,025.00
2
amount
3 Golf Manor flat purchase value 7,52,696.00
4 Family expenditure 3,92,650.00
Total 13,83,171.00
Item No.1 - Electicity Charges of Gauthami Nest
41. The Learned counsel for the accused argued that the electricity charges of Rs.2,11,800/- has been wrongly included by the Investigating Officer into the expenditure of the accused. His further submission is that since, accused was not residing in the said apartment and as he had let out the apartments to various tenants from 2000-2006 the electricity and water charges has been paid by the tenants themselves as per the lease agreement and hence, he prays that the above-mentioned amount has to be deducted from the expenditure of the accused.
42. The Learned Public Prosecutor submits that since the accused has not produced any legally admissible documents to show that there were tenants in the said 66 Spl.C.C.No.191/2009 apartments and since the 8 electricity meters found in the said Gouthami Nest Apartments were in the name of accused and his wife, the Investigating Officer has rightly included this amount into the expenditure of the accused. From the documents produced before this court by the Prosecution as well as accused it is clear that there were 8 flats at Gouthami Nest Apartments and each flat had an electricity meter. Four electricity meters were in the name of the accused and other four in the name of his wife Sujatha Singh. Admittedly accused and his family were not staying in the above- mentioned flats at Gouthami Nest. The prosecution also has no dispute that these flats were let out by the accused. The only aspect disputed by the prosecution is that the amount accused claims to be received as rental income is exorbitant. Therefore, there is quite probable that the accused did not bear the electricity expenses of his tenants and the prosecution has also not produced any receipts which proves beyond reasonable doubt that the accused or his wife had in fact paid the electricity charges as mentioned in the charge 67 Spl.C.C.No.191/2009 sheet. Hence, I am of the considered opinion that the amount of Rs.2,11,800/- has been wrongly included into the expenditure of the accused and therefore the same has to be deleted from the expenditure of the accused. Item No.2 - Maintenance Charges of Suzuki Motorbike
43. For the reasons discussed in the earlier part of this judgment i.e., paragraph 33, 34 and 35 the claim of the accused that the maintenance value of Rs.26,025/- has to be deducted from the expenditure of the accused. Item No.3 - Purchase value of flat at Golf Manor
44. The counsel for accused seriously raised objection that even though the sale deed of the flat No.303, Golf Manor shows that the said property was purchased for Rs.4,90,000/-, the Investigating Officer has blindly included the guidance value of the said property Rs.7,11,047/- as the consideration amount of the said property and arbitrarily included the said amount into the expenditure of the accused, overlooking the consideration amount mentioned in 68 Spl.C.C.No.191/2009 the sale deed. The Learned Public Prosecutor submits that the guidance value of the property is Rs.7,11,047/- and as per law parties are not allowed to sell the property below the guidance value and hence, the amount taken by the Investigating Officer is correct and hence it needs no interference.
45. Since the guidance value of property is Rs. 7,11,047/- investigating officer has considered that amount as expenditure. There is nothing on record to show that the accused has paid Rs. 7,11,047/- to purchase the said property. Based on guidance value, investigating officer has arrived to a conclusion that accused had made expenditure to the tune of Rs. 7,11,047/- to purchase the said property. But, the documentary evidence available before this Court shows that accused had paid only Rs. 4,90,000/- to purchase the said property. The explanation offered by investigating officer for not considering the said value is that, that amount is much lesser than the guidance value of the property and the accused ought to have purchased the property as per 69 Spl.C.C.No.191/2009 law cannot purchase below the guidance value. When dealing with a case of disproportionate assets, it is the bounden duty of this Court to ascertain the factual situations rather than assumptions and presumptions. It can be seen from the sale deed that the accused has paid stamp duty for the registration of said property as per the guidance value and hence, the registration is not undervalued and rather perfectly valued. The amount paid by accused is a question of fact to be decided on the basis of available evidence on record and to prove the transaction, the prosecution has produced the attested copy of the document itself which clearly shows that the property is purchased for Rs.4,90,000/-. If the prosecution has a case that it was purchased for a higher amount, the burden is on the prosecution to prove the same. The seller is not examined before Court to show that he had sold the property for a higher price than shown in the sale deed. Hence, the point raised by the counsel for accused finds considerable force and therefore, accepted and the amount of Rs.2,21,696/- 70 Spl.C.C.No.191/2009 has to be deducted from the expenditure of the accused under item No.3. The Investigating Officer has calculated Rs. 7,11,047/- with Rs. 41,649/-, the registration expenses and thus arrived at an amount of Rs. 7,52,696/- as the expenses for purchasing the said property. Deducting Rs. 2,21047/- from the above amount Rs. 5,31,649/- is to be calculated as the expenditure under this head.
Item No. 4 - Family Expenditure
46. Expenditure under head of monthly expenditure is disputed by the learned counsel for the accused on the ground that the investigating officer has not considered the nature of food habits and other attending circumstances, while calculating the per capita monthly expenditure of accused and his family members for a period of 23 years. Investigating officer has included Rs. 3,92,650/- into the expenditure of accused and the learned counsel for accused claims that 10% needs to be deducted from the same. The learned Public Prosecutor submits that the amount arrived at 71 Spl.C.C.No.191/2009 by the Investigating Officer is not based on any assumptions but the experts, after analyzing the food habits, number of members in the family of the accused, income of the accused, etc., a report is filed by PW4 which is marked at Ex. P50. The learned Public Prosecutor argued that the investigating officer has given information and data with respect to accused and his family members based on his investigation which is correct and PW 4 has calculated the Price Control Expenses based on 1987-88, National Sample Survey (Karnataka State) and Yearly Consumers Expenditure Index which are approved as per law.
47. It is to be noted that the accused is not challenging the entire amount mentioned in the Ex. P50 report, but he submits that the figure arrived at by the expert, who is examined as PW 4 is not absolutely correct and he has given report based on the information supplied by the investigating officer to him with respect to the food habits, number of members etc., of the accused and his 72 Spl.C.C.No.191/2009 family. The submission of the learned counsel for accused that the expert report is based on the aspects which holds good for calculating the average expenditure of a family in India, but factually there may be some differences depending upon the food habits and other expenditure peculiar to each family sounds reasonable. As discussed earlier in the last preceding para of the judgment, while calculating the expenditure amount or income of the accused in disproportionate cases, weightage should be given to facts rather than assumptions and presumption. When accused claims that there are chances for calculating higher value as expenses overlooking the fact that there is probability the accused and his family might have incurred a lesser expenditure due to their food habits. The submission of the accused finds proper and when the prosecution has produced evidence which is an opinion of the expert that accused and his family might have incurred Rs 3,92,650/- as per capita expenditure and there is probability of plus or minus 10% of the expenditure and giving that benefit to the 73 Spl.C.C.No.191/2009 accused out of the expenditure calculated by investigating officer, I find it is proper to deduct 10% which is Rs. 39,265/- and therefore, the expenditure incurred under the head family expenses for food and other invisible expenses is to be arrived at Rs.3,53,385/- instead of Rs. 3,92,650/-.
48. Therefore, from the records and evidence the expenditure incurred by the accused and his family members during check period would be as per the Table No.B4 below.
TABLE NO. B4
Sl. Expenditure in
Particulars of expenditure
No. Rupees
1 i) Site No.81 of Kadugodi 1,540.00
ii) Electricity deposits of the 91,075.00
building
iii) Tax 5,587.00
i) Purchase value of site Nos 9 and 1,240.00
2
10 (Gouthami Nest)
ii) Electricity deposits 32,593.00
iii) Electricity charges 2,11,800.00
iv) Tax 2,26,113.00
v) Water deposits 40,291.00
i) Purchase of the Site No.2502 4,380.00
3
HAL
ii) Tax 47,100.00
4 i) Stamp duty on Site No.9 and 26 2,350.00
74 Spl.C.C.No.191/2009
(Pradeep Bar)
ii) Tax 7,590.00
i) Purchase of site No.684 and 685 10,520.00
5
of Kadugodi
ii) Tax 2,336.00
6 i) Tax paid to site No.269/1A 271.00
ii) Tax paid to No.269/1A 150.00
i) Purchase of the property at 47,728.00
7
Bisavanahalli
ii) Purchase of GI Pipes 42,450.00
Purchase of the property bearing 23,247.50
8
Sy No 1, 2 and 3 of Bellahalli
Expenditure on site No.31 of 2,610.00
9
Kadugodi
Expenditure on site No.54 of 28,085.00
10
Kadugodi
Expenditure on site No.54/1 of 5,000.00
11
Kadugodi
Expenditure on site No. 11 and 12 19,240.00
12
of Kadugodi
Expenditure on site No.473 and 1,68,824.00
13
476 of Whitefield
14 Expenditure on skoda car 2,26,590.00
15 Expenditure on Maruthi van 23,547.00
16 Maintenance of Maruthi Van 2,36,126.00
17 Maintenance of Maruthi Van 24,173.00
18 Expenditure on Maruthi Zen 28,075.00
20 Expenditure on suzuki motorbike -
21 Expenditure on Golf Manor 5,31,649.00
Expenditure on site No.220 16,085.00
22
Gaddalahalli
Expenditure incurred in respect of 450.00
23
City Bank account
24 Visa Credit card service charges 13,056.00
25 Visa credit card 20,839.00
75 Spl.C.C.No.191/2009
26 Loan account, Vijaya Bank 9,62,354.00
27 Fixed Deposit Vijaya Bank 6,00,000.00
28 Loan account Andhra Bank 1,24,371.00
30 Loan account at Andhra Bank 2,30,000.00
31 Expenditure on BSNL 60,273.00
32 Expenditure on Airtel 34,329.55
Expenditure incurred on education 4,96,895.00
33
of Abishek
Expenditure incurred on education 1,82,347.00
34
of Nikhil
35 Expenditure on Gas 8,269.00
36 Expenditure Zero B Kitchen 18,500.00
37 Expenditure on Indranagar 63,370.00
38 Salary expenditure 42,216.00
39 Family expenditure 3,53,385.00
Total 53,19,020.05
49. The known source of income of the accused as per the charge sheet from the date of his joining the government service till the date of raid of his house i.e., from 21.02.1983 to 06.12.2006 is Rs.1,02,34002.17 as per Table No. C1.
Table No. C1 Sl.
Particulars of income Income in Rupees No. Income from sale of Flat No.9/3 9,80,000.00 1 and 10/3 76 Spl.C.C.No.191/2009 Compensation amount in respect of 2,06,542.00 2 property Sy.No.269/1A 3 Income from Agriculture 90,045.00 4 Income from Horticulture 5,22,000.00 Income from purchase and sale of 16,00,000.00 5 Flat No.313, Golf Manner building Income from purchase and sale of 1,00,000.00 6 Site No.220, Geddalahalli Balance amount in Suvidha Account 5,586.62 7 No.5-027538-802, City Bank 8 S.B.Account No.4720, Vijaya Bank. 29,252.85 S.B.Account No.12913, Vijaya 5,808.00 9 Bank.
Loan availed from Vijaya Bank 10,00,000.00 10 which is deposited to account No.230032 Fixed Deposit amount STV 6,05,437.00 11 230036/1, Vijaya Bank S.B.Account No.2527, Andhra Bank, 17,746.00 12 Bengaluru Loan amount availed from Andhra 5,00,000.00 13 Bank Loan availed from Andra Bank 1,50,000.00 14 which is deposited in account No.28.
S.B.Account No.1066 New 3,205.00
15
No.10235312816, SBI
16 Total income from salary 26,68,864.70
Rental income declared by the 3,76,979.00
17
accused in I.T. returns
Income declare in IT returns in 1,12,000.00
respect of supervision of the
18
construction of the building in
House No.2502
77 Spl.C.C.No.191/2009
Rental income declared by the wife 2,60,536.00
19 of accused Sujatha Singh in IT
returns
Gift received by the wife of accused 3,39,000.00
Sujatha Singh from Anil Kumar
20
Singh (declared in IT returns)
Loan amount received by the 3,61,000.00
21 accused from Krishna singh
through cheque
Loan amount received by the 3,00,000.00
22 accused from Sadashiva through
cheque
Total 1,02,34,002.17
50. The accused claims that he received income during the check period as per Table No. C2 mentioned below.
Table No. C2 Sl.
Particulars of income Income in Rupees No. Rental income from property 9,86,400.00 1 bearing No.81 of Kadugodi Rental income from property 43,50,280.00 2 No.9 and 10 of Gauthami Nest 3 Advance amount 5,95,000.00 Rental income from property 21,35,600.00 4 No.2502 of HAL 5 Advance amount 1,10,000.00 Rental income from Pradeep 1,80,000.00 6 Bar 78 Spl.C.C.No.191/2009 Rental income of site No. 684 1,80,000.00 7 and 685 8 Advance amount 1,47,000.00 Rental income from Sy.No. 4,62,000.00 9 269/1A of Kadugodi Agriculture and Horticulture 22,33,778.00 10 income 11 Income from tuition 32,000.00 12 Loan from Krishna Singh 3,68,000.00 Gift from the mother on 4,00,000.00 13 10.7.1986 through Will 14 Gift from Sorab Singh, London 2,00,000.00 Loan taken from ICICI Bank for 1,00,000.00 15 purchase of Maruthi Zen Car Gift from brother Anil Kumar 1,50,000.00 16 through cheque 1,80,000.00 17 Loan from B.K.Shivappa 42,00,000.00 Total 1,70,10,058.00
51. Item No. 1 to 9 in Table C2 are the rental incomes and advance amount which accused claims that he had received from the properties owned by him and his wife Smt. Sujatha Singh and the total amount claimed is Rs. 81,59,880/-. The accused has submitted his schedule before investigating officer stating that he received Rs. 9,86,400/- as rental income from his House No.81, Kadugodi. Accused claims that he received Rs. 4,62,000/- as rental income from 79 Spl.C.C.No.191/2009 his house property No. 269/1 Kadugodi from one Ramakrishna but he had submitted the details of rent he had received from the said house from 01-06-1982 to 01-12- 2006 from various tenants is Rs. 10,20,500/- and he also claims that an advance amount of Rs. 20,000 is in his hand which is to be returned to the tenants and details he submitted before Investigating Officer is thus:
1 From 01.06.1982 to 01.04.1995 Rs. 4,62,000.00 Ramakrishna 2 From 15.04.95 to 01.08.2006 Rs. 3,76,000.00 I.R.Fanhoolson 3 From 01.01.2002 to 01.12.2006 Rs 88,500.00 Venkatesh 4 From 01.01.2002 to 01.01.2002 Rs. 72,000.00 Laxmikanth Bilathur 5 From 01.01.2006 to 01.12.2006 Rs. 22,000.00 Gopinath Rs. 20,000.00 Advance amount Total Rs.10,40,000.00
52. He claims such a huge amount as his rental income he received during the check period and the Investigating Officer has not considered the amount claimed by the accused on the ground that neither accused nor his 80 Spl.C.C.No.191/2009 wife Sujatha Singh have declared these amounts in any of their income tax returns. None of the tenants were traceable during investigation and hence, the investigating officer could not contact any of the tenants to ascertain the claim of the accused. The accused also has not made any attempt to produce these tenants before the investigating officer to prove that he had in fact received such huge rental income. This has to be looked into, in the light of the fact that the accused has not declared these rental incomes received by him to his department, in any of the Assets and Liabilities Statements. This income is not declared in the Income Tax Returns he had submitted before the Income Tax department. During investigation, investigating officer obtained letter dated 26.02.2008 from Chief Engineer (Buildings), Bengaluru South in which it is stated that accused had filed his Assets and Liabilities statement for 1984-85 to 2005-2006 together on 25.01.2007, since this case was of the year 2006 and the statement is submitted on 25.01.2007 which is much later than the registration of 81 Spl.C.C.No.191/2009 crime Investigating officer has considered that the figures mentioned therein are not believable. The accused has not made any effort to prove that he had in fact received these amounts, either by examining the tenants on his behalf nor by furnishing sufficient legally admissible documentary evidence which was intimated by him in accordance with the provisions of law or rules applicable to him, prior to the registration of this case which proves the receipt of such income.
53. The statement made by the accused that he had in fact received rental income and the documents produced by him to prove such facts can be categorized under statements made by person which suggests any inference as to any fact in issue or relevant fact and hence, these statements come under the purview of admissions as defined under section 17 of the Evidence Act. Section 21 of Evidence Act enumerates the circumstances where admissions are relevant which says that admissions are 82 Spl.C.C.No.191/2009 relevant and may be proved as against the person who makes them, or his representative in interest, but they cannot be proved by or on behalf of the person who makes them except the circumstances enumerated in that section. The 1st exception that "an admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32". Here, had the accused furnished his Assets and Liabilities statements before his higher authorities which show his rental income or had he declared it in his income tax returns prior to the question of fact that he received rental income has become an issue, then those documents would be admissible under proviso (1) or (2) to section 21 of the Evidence Act.
54. Here the accused has submitted his Annual Property Returns on 25.01.2007 and the FIR came to be registered on 05.12.2006 i.e., the documents have been furnished after the question of fact that he received rental 83 Spl.C.C.No.191/2009 income became an issue, hence, does not come within the purview of the exemptions to Section 21 of the Evidence Act and the statements in the form of admissions, made by a party in his favour cannot be admitted into evidence. Therefore, the accused has not succeeded to show that he received the rental income as claimed and hence, the explanation offered by the Investigating Officer for not considering the same has to be accepted. Accused had submitted the income tax returns for the years 2005-06 and 2006-2007 and accused has declared Rs 20,000/- rental income from the above said property. The investigating officer has considered the rental income received by the accused as per his declaration in income tax returns under separate head.
55. The accused claims that he received an income of Rs. 21,35,600 as rent and Rs. 1,10,000 as advance from the house situated at No. 2502, HAL Bengaluru and the investigating officer has not considered this income and the 84 Spl.C.C.No.191/2009 explanation offered by investigating officer is that the accused could not produce any documents to show that his wife had in fact received Rs. 21,35,600/- and the advance amount of Rs 1,10,000/- from her tenants. The Xerox copies of rental agreements are produced by the accused before the Investigating Officer which is appended along with the schedule of the accused. The investigating officer further says that the tenants named in those agreements were not traceable in the address mentioned therein. Accused also did not make any efforts to produce the tenants to prove the above mentioned rental income. He also states that the Income Tax Returns of wife of accused with regard to 2004- 05, 2005-06 and 2006-07 were available. The details of income tax returns furnished by Sujatha Singh before income tax Department through her Chartered Accountant was also obtained by investigating officer. From the perusal of these income tax returns, Sujatha Singh had declared rental income from house situated at No.2502, HAL during 2003-04 as Rs 23,100/- and she has stated that the rental income she 85 Spl.C.C.No.191/2009 derived from all her property during 2003-04 as Rs 63,000/- 2004-05 Rs 75,600/-, 2005-06 as Rs 1,35,600/- and 2006-07 as Rs 1,62,000/-. Therefore, investigating officer has considered the said amount as income into account of accused under separate head.
56. It is the specific case of accused is that his wife received Rs. 7,05,600/- through cheque. But nothing is produced before this court to substantiate the same. No witnesses were examined on his behalf to establish the same. Investigating officer states that he made efforts to trace the tenants named in the rental agreement produced by the accused, but could not find out any one, in the address mentioned therein. The onus shifts to accused to prove that he and his wife had in fact received such a huge amount as rental income. No bank statements are produced to show the periodical payment of rent nor any other such payment which would corroborate the contention raised by the accused. Ex. D1 to D5 statements of accounts does not 86 Spl.C.C.No.191/2009 show any periodical payments which specifically substantiate the claim of the accused that either her or his wife received rental income. Accused has not furnished any annual property returns which he had filed before the registration of this case which depicts this fact. Hence, the explanation of investigating officer is to be accepted. Moreover, the investigating officer has considered all these rental incomes declared by Sujatha Singh into the income of accused.
57. Accused claims Rs. 1,80,000/- as rental income from Pradeep Bar. Accused submitted schedule to investigating officer stating that from 01.08.1996 to 01.12.2006 he received an advance amount of Rs 1,50,000/- from Tulasiram and rent of Rs 1,80,000/- by cash. Xerox copy of rental deed is produced. He has produced computerized rental deed which do not depict the receipt of advance amount of Rs. 1,50,000/- or receipt of rent of Rs. 1,80,000/-. The tenant Tulsiram was not available at the time of investigation and the accused did not make any 87 Spl.C.C.No.191/2009 effort to produce him before the Investigating Officer. The said Tulsiram is none other than the brother of the accused and failure on part of accused to produce the tenant either before the Investigating Officer or before court to establish his claim of rental income throws doubt on the claim made by the accused. From Chartered Accountant's office, the investigating officer obtained income tax returns of the accused for the years from 1996-97 to 2004-05. But in the said returns, the accused has not declared any rental income received from Pradeep Bar. He has not declared any income in his Annual Property Returns. Rather he has not submitted the annual property returns every year and he has not obtained permissions from his department for constructions of these buildings. The investigating officer has stated that rental income, accused had previously declared has been considered under separate head.
58. Since, no proof of rental income is produced by the accused with respect to receipt of Rs. 1,80,000/- rental 88 Spl.C.C.No.191/2009 income and Rs. 1,50,000/- advance amount, the Investigating Officer has not considered the same. The accused has neither furnished any documentary or oral evidence to corroborate the factum of the he reception of rental income of Rs. 1,80,000/- or advance amount of Rs.1,50,000/- which he has in his hand to be returned to his tenant before the Court. Hence, the contention of the learned counsel for the accused holds no water and therefore is not accepted.
59. Accused claims rental income of Rs. 1,80,000/- from property No.684 and 685. Accused submitted schedule to investigating officer stating that from 01.04.2006 to 01.12.2006 he received the advance amount of Rs. 1,47,000/- from Smt. Susheela Bai and rent of Rs. 1,80,000/- both by cash. Xerox copy of rental deed is also produced. He has produced computerized rental deed which do not depict the receipt of advance amount of Rs. 1,47,000/- or receipt of rent of Rs. 1,80,000/-. No documents are 89 Spl.C.C.No.191/2009 produced to substantiate the amount received. The said tenant was not available for interrogation and accused has not made any efforts to produce the said tenant before investigating officer or before the Court as defense witnesses to substantiate his claim. From the available records it can be seen that the said tenant Smt. Susheela Bai is the owner of SRS Bar and she is none other than the sister of accused. He has not declared the income before his competent authority or income tax authority before the registration of this case. Hence, the explanation offered by the investigating officer for not considering the income is to be accepted. No documentary or oral evidence is available before the Court to substantiate the rental income as claimed by accused. Hence, the amount claimed by accused has not been rightly considered by the Investigating Officer into the income of accused.
Item No. 10 Agricultural and Horticultural Income
60. According to the investigating officer, the accused derived Rs. 90,045/- as horticulture income and Rs. 90 Spl.C.C.No.191/2009 5,22,000/- as agricultural income. However, the accused claims that he derived income of Rs.22,33,778/-. In his schedule, he has shown that he owns 22.25 acres of land in Sy.No.88 of Bisanahalli village and he raised Ragi, Sappota, Paddy, vegetables, banana, coconut and he received income of Rs. 3,33,425/- from the aforesaid land. The wife of the accused has declared that she owns 22.25 guntas of land in Sy.No.88, 89 and 90 of Bisanahalli village and she received Rs. 15,65,823/- as income from the aforesaid land. The investigating officer secured the income tax returns submitted by the accused for the years 2005-06 and 2006-
07. The income tax returns for the years from 1996-97 to 2004-05 are not available from the income tax department. From Chartered Accountants' office, investigating officer obtained income tax returns of the accused for the years from 1996-97 to 2004-05. But in the said returns, the accused has declared Rs. 4,01,455/- as agricultural income and the wife of the accused has declared Rs. 18,32,323/- as income from the agriculture. No documents produced to 91 Spl.C.C.No.191/2009 substantiate these declarations and therefore the Investigating Officer did not consider these amounts. The learned Public Prosecutor relaying upon the decision of the Hon'ble Supreme Court in State of Karnataka Vs. J. Jayalalitha reported in (2017)6 SCC 263 submitted that the declaration of income in Income Tax Returns cannot be considered while appreciating evidence in a case where the accused is charged under the provisions of the PC Act. The Hon'ble Apex Court has held that "ITRs and IT order do not constitute fool proof defense in DA cases. ITRs and IT orders would not ipso-facto either conclusively prove or disprove charge of disproportionate assets (acquisition of assets disproportionate to known source of income) and can at best be pieces of evidence which have to evaluated along with other materials on record. The scrutiny and orders passed by IT authorities do not certify or authenticate that source thereof to be lawful and thus no significance vis-a'-vis a charge u/s 13(1)(e)". Therefore, the explanation of the 92 Spl.C.C.No.191/2009 accused with respect to his agricultural income and of his wife's income cannot be considered.
61. The accused had submitted the copy of his income tax returns declared by him and his wife before the Investigating Officer along with his schedule during investigation. The schedule furnished by the accused were appended by the Investigating Officer along with the charge sheet and it is marked as Ex. P7. The xerox copies of the Form No. 2D with the office seal and date of reception of the same is produced by the accused along with his schedule. These income tax returns are pertaining to accused and his wife for a period of 8 years from 1996-97 to 2005-06. As per these documents the accused has declared the following amount as his agricultural and horticultural income.
Income declared in
Year
Rupees
1996-97 Nil
1997-98 53,500.00
1998-99 58,650.00
93 Spl.C.C.No.191/2009
1999-00 62,280.00
2000-01 31,275.00
2001-02 23,680.00
2002-03 27,540.00
2003-04 36,500.00
2004-05 31,850.00
2005-06 36,180.00
2006-07 40,000.00
Total 4,01,455.00
62. The accused had furnished the copies of Form 2D pertaining to this wife's income before the Investigating Officer and the details of agricultural and horticultural income she has declared is as under:
Income declared in Year Rupees 1996-97 No copy produced 1997-98 3,80,000.00 1998-99 3,85,150.00 1999-00 2,58,403.00 2000-01 1,32,850.00 2001-02 1,10,720.00 2002-03 1,22,450.00 94 Spl.C.C.No.191/2009 2003-04 83,650.00 2004-05 92,450.00 2005-06 1,18,650.00 2006-07 1,48,000.00 Total 18,32,323.00
63. Therefore, as per the schedule produced by the accused the agricultural and horticultural income of accused and his wife are at Rs. 22,33,778/- but the Investigating Officer has considered only Rs. 6,12,045/- as the agricultural and horticultural income of accused and his wife only for the reason that the originals of the income tax returns were not available to him during investigation and the IT Department has furnished only the tax returns submitted by the accused for the year 2005-06 and 2006-07 and the income declared therein is included into the assets of the accused. Since, the accused had furnished the copies of the IT returns which bears the seal of the IT department and the date of reception of the year wise returns, it is the duty of the Investigating Officer to ascertain the facts stated therein. 95 Spl.C.C.No.191/2009 The Investigating Officer explains that when he contacted the IT department for ascertaining the said facts the IT department has provided him with the copies of IT returns submitted by accused and his wife pertaining to 2005-06 and 2006-07 and hence, he has considered the amount mentioned in those returns only. It is not the case of the prosecution that the IT department has stated that the accused and his wife have not submitted any returns pertaining to the previous years. Since, the IT department gave only two years' returns the Investigating Officer was satisfied with that and he did not make any enquiry as to remaining documents when he had the xerox copies of the same which also shows that date of reception of the IT returns. Hence, taking the true spirit of sum and substance of the law laid down by the Hon'ble Apex Court in J. Jayalalitha's case (supra), the declaration in ITRs can be accepted evaluating the same with other available evidence on record such as RTCs of the said land which depicts the crops grown in the land, extent of the land, topographical 96 Spl.C.C.No.191/2009 conditions of the land, etc., the claim of the accused that he and his wife received agricultural and horticultural income as per the schedules furnished by him is probable and the prosecution has failed to disprove this fact and therefore, I find considerable merits in the contention of the learned counsel for the accused and the investigating officer ought to have taken Rs. 22,33,778/- as agriculture and horticultural income of accused and his wife.
Item No. 11 - Income from Tuition
64. Tuition income of Rs. 32,000/- earned by his wife Sujatha Singh is claimed by the accused to be included into his income. The learned Public Prosecutor argues that since, the accused has not furnished any documents, the said amount has not been considered as income of the accused. The accused has not placed any records to show that his wife earned money by conducting home tuitions. Accused in his testimony deposes that his wife is a B.Sc. graduate and she was conducting home tuitions to students 97 Spl.C.C.No.191/2009 at her neighbourhood and he further states that she used to conduct home tuitions during 1986 and the income she earned were deposited in a bank account maintained by her. His further evidence is that she purchased the property situated at Kadugodi from the tuition money she received and from the gifts she received. However, he does not speak as to how much amount she earned from the home tuitions. The learned Public Prosecutor strongly opposed this contention of the accused and tried to convince this Court that the accused has not produced any documents to substantiate his claim.
65. It is not disputed that the wife of the accused Smt. Sujatha Singh is an educated lady with a Bachelor degree and she could have conducted home tuitions at her home as claimed by the accused. It is highly impossible to expect a person to keep receipts or documents for having teaching lessons to the neighborhood children, that too years back anticipating any case against her husband. Even though the wife of accused has not come before this Court 98 Spl.C.C.No.191/2009 to show that she received the income, the amount claimed for the whole check period of 23 years is only Rs. 32,000/- and this has to be included into the income of the accused.
Item No. 12 -Loan from Krishna Singh
66. The learned counsel for the accused claims that the accused has received Rs. 3,68,000/- as loan from Krishna Singh, however, the investigating officer has considered only Rs. 3,61,000/-, but the investigating officer has stated in his substantive evidence that it was a bonafide mistake on his part that he left out Rs. 7,000/-. Therefore, the claim of accused to the amount of Rs. 3,68,000/- is to be considered instead of Rs. 3,61,000/-.
Item No. 13 - Amount received by Will
67. The accused claimed Rs. 4,00,000/- received as gift from his mother through Will. The xerox copy of an unregistered Will is produced by the accused to substantiate his claim. Admittedly his mother expired in the year 1996. But to prove the bequeath made by his mother the accused 99 Spl.C.C.No.191/2009 has to prove that he received the legacy as this Will was his mother's last Will which had come into effect. Producing a xerox copy of a Will with a claim that he received Rs. 4,00,000/- vide that Will does not relieve him of his burden of proving the contents of the Will. True, in criminal trial the degree of burden of proof accused has to discharge in proof of his defense is not as strict as the burden is on the prosecution to prove its case. Accused need not prove his defense beyond reasonable doubt, suffice that he brings in that much evidence which could probabilise his defense and for that in this case at least, he has to produce the original copy of the Will. As per section 68 of the Evidence Act one of the attesting witnesses have to be called to prove the contents of even a registered Will to prove the same. Here the accused has produced a xerox copy of an unregistered Will which is only a secondary piece of evidence and to admit this document as evidence, first the accused has to lay foundation as per section 65 of the Evidence Act to accept the same, then section 68 of the Evidence act comes into 100 Spl.C.C.No.191/2009 play which requires at least one of the attesting witnesses is to called to prove the execution of the Will. Therefore, the accused has not produced any legally acceptable evidence before this court to probabalise his case that he received an income of Rs. 4 lakhs from his deceased mother as per her last Will. Hence, I am of the considered opinion that that the Investigating Officer has rightly not included the income of Rs. 4 lakhs into the account of the accused.
ITEM NO. 14- Gift from Sorab Singh
68. The learned counsel for accused submitted that an amount of Rs. 2,00,000/- was gifted by Sorab Singh from London through cheque to the wife of the accused and the copy of the cheque was furnished to the Investigating Officer during investigation by the accused along with his schedule, but the Investigating Officer to lessen the income of the accused purposely not included this amount into the account of the accused and the Investigating Officer has not given any reasoning in his Final Report as to why he did not consider this amount. The learned Public Prosecutor strongly 101 Spl.C.C.No.191/2009 opposed this contention and submits that the accused had not produced any evidence to substantiate this claim except a xerox copy of a cheque which is inadmissible in evidence and hence, Investigating Officer has not considered the same.
69. The explanation of accused is furnished by him to the Investigating Officer in schedules and the schedules were submitted by the Investigating Officer along with the charge sheet in 2 volumes and are marked before this court as Ex. P7 and P8. 1st volume of schedule is Ex. P7 which contains 257 pages and 2nd volume is again divided into 2 files and the 1st part is the continuation of Ex. P7 from page 258 to 626 and the 2nd part is marked as Ex. P8 from page 627 to 647. The accused in his testimony before this court kept silence with respect to the reception of this gift amount and on search of the entire papers of Ex. P7 and P8 and it is found that at Ex. P7 page 484 a xerox copy of a cheque drawn on HSBC, London is found which shows that an amount of 2,500 Pounds is drawn in favour of Mr. J. 102 Spl.C.C.No.191/2009 Abhishek Singh with drawee signature of one Dr. S. Moti Singh. Neither the drawer of the cheque Dr. S. Moti Singh nor the drawee Abhishek Singh is examined before this Court and the accused has not produced any bank statement to convince the Court that such an amount has been credited to any of the Bank accounts of accused or his family members. Therefore, the Investigating Officer has rightly not considered the said amount into the income of the accused.
ITEM No. 15- Loan from ICICI Bank
70. The learned counsel for accused submits that the accused had availed a loan of Rs. 1,00,000 from ICICI Bank for purchase of Maruthi Zen car and the Investigating Officer has included the value of the car into the assets of the accused, amount expended on maintenance of the said car into the expenditure of the accused but Investigating Officer purposely did not consider the loan amount of Rs. 1,00,000/- availed by the accused to purchase the said car into the income of the accused.
103 Spl.C.C.No.191/2009
71. Ex. P46 is the documents of the Maruthi Zen car and Ex. P47 is the copy of the statements of ICICI bank which shows the car loan details and repayment of said loan. The learned Public Prosecutor submits that the Investigating Officer has considered the amount of Rs. 99,800/- the loan amount into the income of the accused and the repayment of Rs. 1,35,235/- the said loan amount by installments from 01-08-2002 to 30-06-2004 has been included into the expenditure of the accused.
72. From the perusal of the records before this court it is revealed that the value of the vehicle Rs. 3,77,868/- has been added to the assets of the accused. Investigating Officer has discussed about the car, its value, loan availed and expenditure incurred on the car in page 104 to 106 of Ex. P52 Final Report. Ex. P46 is the attested copies of the documents of the said car which shows the showroom price of the car, taxes paid etc. The accused in his schedule had submitted that he had purchased the said car from Pratham 104 Spl.C.C.No.191/2009 Motors by paying Rs. 4,11,000/- and he had availed loan of Rs. 1,00,000/- from ICICI bank to purchase the car. Even though accused has stated that he had paid Rs. 4,11,000/- the Investigating Officer has taken only Rs. 3,77,868/- into the assets of the accused. Investigating Officer has discussed in his Final Report that he obtained documents showing that the accused had availed loan for the purchase of the car and he has included the said amount into the income of the accused, while calculating the income of the accused, this loan amount is not added into the income of the accused. Maybe it is a bonafide mistake on the part of the Investigating Officer. The said amount of Rs. 99,800/- has to be included into the income of the accused since, the Investigating Officer is not at dispute that the accused had in fact availed this loan. With respect to the repayment of the loan amount of Rs. 1,35,234/- the Investigating Officer has not included the amount into the expenditure of the accused. Naturally, accused is also silent with respect to this aspect and accused has a right to keep silent in criminal trail unless 105 Spl.C.C.No.191/2009 and until the prosecution proves its allegation beyond the shadow of reasonable doubt and then the burden shifts on the accused to break his silence to give explanations for the incriminating circumstances proved against him. The Investigating Officer has produced the copy of the bank statements which shows the repayment of the loan amount. The statements are not attested copies as provided under the Banker's Book Evidence Act. Now the question arises, the same statements show the loan amount availed by the accused which I have opined to consider into the income of the accused. The loan amount is accepted since, the prosecution is admitting the loan amount availed by the accused and facts admitted need not be proved as per section 58 of the Evidence Act. As far as the repayment of loan is concerned, the prosecution has to prove beyond reasonable doubt with convincing and cogent evidence that the repayment was during the check period, the exact amount repaid, payment is made by accused himself, etc., to bring the amount into the expenditure of the accused and till 106 Spl.C.C.No.191/2009 then accused need not speak up to give explanations with respect to the same. Hence, it can be now safely concluded that the amount of Rs. 99,800/- left out by the Investigating Officer has to be included into the income of the accused and the amount of Rs. 1,35,234/- which was left out by the Investigating Officer has to be left out as such and thus cannot be included into the expenditure of the accused.
ITEM No. 15- Gift from Anil Kumar
73. The learned counsel for accused claims that an amount of Rs. 1,50,000/- and Rs. 1,80,000/- was gifted by Sri. Anil Kumar to Smt. Sujatha Singh through and the Investigating Officer has not considered the said 3,30,000/- into the income of the accused. From the bare reading of the Final Report and the table showing the calculations made in assessing the assets, expenditure and income of the accused, the Investigating Officer under the head 23-42B an amount of Rs. 3,39,000/- has been included into the income of the accused which was received by Smt. Sujatha Singh 107 Spl.C.C.No.191/2009 from one Anil Kumar Singh based on the IT Returns filed by Sujatha Singh.
ITEM No. 16- Loan from Shivappa
74. The accused claims an amount of Rs. 42,00,000/- to be included into his income as his wife had availed loan from one B. K. Shivappa to purchase 6 acres of land at Billahalli village and receipt of same is declared in his IT returns for the year 2005-06. Counsel for the accused relied upon the decision of Hon'ble Supreme Court in M.Krishna Reddy V/s State Deputy Superintendent of Police, Hyderabad reported in (1992) 4 Supreme Court Cases page 45 wherein the Hon'ble Supreme Court observed that the amount received from 3rd person by the accused and the said receipt is declared in the Income Tax returns and wealth tax returns of that 3rd person and also the accused and such declarations are made prior to the raid conducted and registration of case against the accused, then these documents could not have been manipulated and concocted 108 Spl.C.C.No.191/2009 anticipating a prosecution against him in a later point of time.
75. The Learned Public Prosecutor submits that there is no evidence on record to show that B.K.Shivappa has given Rs.42,00,000/- to Smt. Sujatha Singh other than a xerox copy of separate statement pinned with the copy of I.T. returns of Smt.Sujatha Singh for the year 2005-06. The Learned PP also tried to appreciate this court that the accused is relying upon the bank statements which are marked at Ex.D1 to D3 and claims that Smt.Sujatha Singh received the said amount from B.K.Shivappa. He brought to the notice of this court that no specific entry with respect to the receipt of Rs.42,00,000/-. To this the Learned counsel for the accused submitted that Rs.42,00,000/- was given to Smt.Sujatha Singh in 2-3 installments and in turn the said amount is deposited to the account of Sri.Arthri Malhothra by Smt.Sujatha Singh. The Learned Public Prosecutor submitted that the bank records submitted by the accused at Ex.D1 to 109 Spl.C.C.No.191/2009 3 does not show any entry which depicts that any Shivappa.B.K. has advanced any amount to Smt.Sujatha Singh or to accused. He also submits that the said Shivappa is not examined before this court to substantiate that he had in fact given this amount to either accused or Smt.Sujatha Singh. Hence, the prosecution was deprived of the opportunity to elicit the source of income of the said Shivappa, to give such a huge amount to Smt.Sujatha Singh. Whether this Shivappa is an Income tax Assesse or payee or not is not forthcoming from the available records. In absence of such an evidence the contention of the accused that he received such a huge amount from Shivappa could not be accepted. The Learned Public Prosecutor submitted that even if it is accepted that Shivappa had advanced such an amount whether this amount was repaid to Shivappa or not, if it is repaid whether it was repaid within the check period or not is not forthcoming. Therefore, he prays the court to reject the claim of the accused.
110 Spl.C.C.No.191/2009
76. In M. Krishna Reddy's case (supra), the income tax returns were filed before the search of the house of appellant and registration of the case and prosecution had examined Income Tax officer to prove the income tax returns filed by appellant's wife, daughter, son-in-law showing that they had advanced loans to the appellant and also income tax returns of appellant showing that he had received loans from them and the income tax returns were marked through the income tax officer. Here, in the case on hand Ex.P7 is the schedule accused had furnished before the Investigating Officer to substantiate his claim that he had sufficient income to acquire and possess assets in his name. Page No.176 of Ex.P7 is the xerox copy of income tax returns for assessment year 2005-06 for income derived by her during Financial year 2004-05, submitted by Smt.Sujatha Singh to Income tax officer on dt.18-10-2005, but this does not show any income of Rs.42,00,000/- received from Sri.B.K.Shivappa. Page No.173 of Ex.P7 is the xerox copy of income tax returns for assessment year 2006-07 for income 111 Spl.C.C.No.191/2009 derived by her during Financial year 2005-06, submitted by Smt.Sujatha Singh to Income tax officer on dt.07-08-2006. This also does not show any income of Rs.42,00,000/- received from Sri.B.K.Shivappa. It is submitted on behalf of the accused by his learned counsel that the income tax returns pertaining to assessment year 2005-06 for the financial year 2004-05 was submitted by the accused on 26- 10-2005 along with the balance sheet and the balance sheet shows the reception of Rs.42,00,000/- from B.K.Shivappa and payment of the same to Sri.Arthri Malhotra for purchase of property in Sy.1, 2 and 3 at Bellahalli. The xerox copy of the said I.T. returns is in page No.144 of Ex.P7 and xerox copy of the balance sheet is appended at page No.147. The balance sheet shows that an advance amount of Rs.42,00,000/- for purchase of property in Sy.No.1, 2 and 3 is given to Sri.Arthri Malhotra. The details submitted in Form No.2D which was received by the Income Tax Officer on 26- 10-2005 is in page No.144. This is the xerox copy which bears the seal of reception of the form by the I.T. Officer on 112 Spl.C.C.No.191/2009 26-10-2005. But there is no such seal found in page No.147, stated to be the balance sheet submitted by the accused along with Form No.2D. Moreover the case of the accused is that the said property is in the name of his wife Smt. Sujatha Singh and Sri.B.K.Shivappa, but the income tax returns or the balance sheet submitted by Smt. Sujatha Singh does not show such an amount either paid to Sri.Arthri Malhotra or received from Sri.B.K.Shivappa. The IT returns of the said Shivappa is also not produced before this court. Hence, the facts and circumstances discussed in M.KrishnaReddy's case (supra) does not apply to this case. In such circumstance the onus of proof is on the accused to prove that he had received Rs.42,00,000/- from B.K.Shivappa by producing cogent and legally admissible evidence before this court and hence, the Investigating Officer has rightly not considered the said Rs.42,00,000/- into the income of accused. 113 Spl.C.C.No.191/2009
77. Therefore, from the records and evidence the income accrued to the accused and his family members during check period would be as per the Table No.C3 below. Table C3 Sl.
Particulars of income Income in Rupees No. Income from sale of Flat No.9/3 9,80,000.00 1 and 10/3 Compensation amount in respect of 2,06,542.00 2 property Sy.No.269/1A 3 Income from Agriculture 22,33,778.00 4 Income from Horticulture Income from purchase and sale of 16,00,000.00 5 Flat No.313, Golf Manner building Income from purchase and sale of 1,00,000.00 6 Site No.220, Geddalahalli Balance amount in Suvidha Account 5,586.02 7 No.5-027538-802, City Bank 8 S.B.Account No.4720, Vijaya Bank. 29,252.85 S.B.Account No.12913, Vijaya 5,808.00 9 Bank.
Loan availed from Vijaya Bank 10,00,000.00 10 which is deposited to account No.230032 Fixed Deposit amount STV 6,05,437.00 11 230036/1, Vijaya Bank S.B.Account No.2527, Andhra Bank, 17,746.00 12 Bengaluru Loan availed from Andra Bank 1,50,000.00 13 which is deposited in account No.28 114 Spl.C.C.No.191/2009 S.B.Account No.1066 New 3,205.00 14 No.10235312816, SBI 15 Total income from salary 26,68,864.00 Rental income declared by the 3,76,679.00 16 accused in I.T. returns Income declared in IT returns in 1,12,000.00 respect of supervision of the 17 construction of the building in House No.2502 Rental income declared by the wife 2,60,536.00 18 of accused Sujatha Singh in IT returns Gift received by the wife of accused 3,39,000.00 Sujatha Singh from Anil Kumar 19 Singh (declared in IT returns) Loan amount received by the 3,68,000.00 20 accused from Krishna Singh through cheque Loan amount received by the 3,00,000.00 21 accused from Sadashiva through cheque Income derived by Suajtha Singh 32,000.00 22 from tuitions Loan availed from ICICI Bank for 99,800.00 23 purchase of car Total 1,14,94,233.87
78. Therefore, from the above oral and documentary evidence produced by the prosecution, the total income of the accused during the check period was Rs.1,14,94,233.87, 115 Spl.C.C.No.191/2009 the assets of the accused during the check period was found to be of Rs.1,39,77,590.86 and the total expenditure incurred by the accused was at Rs.53,19,020.05.
Sl. Heads Amount (in Rs.)
No.
1. Assets acquired during the 1,39,77,590.86
check period
2. Expenses incurred during 53,19,020.05
check period
3. Sum of assets and 1,92,96,610.91
expenditure of the accused
4. Income earned during the 1,14,94,233.87
check period
5. Assets disproportionate 78,02,377.04
6. Percentage 67.88%
79. Under these circumstances, I hold that the prosecution has proved beyond reasonable doubt that the accused amassed wealth disproportionate to his known source of income to the tune of Rs. which is at 67.88% by adducing satisfactory and convincing evidence. Accordingly, I answer point No.1 in the affirmative.
116 Spl.C.C.No.191/2009
80. Point No 2: In the result, I proceed to pass the following:
ORDER Acting under section 248(2) Cr.P.C, the accused R.Jayaram Singh is convicted for the offence defined under Section 13(1)(e) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
Case is posted to hear the accused on sentence.
(Dictated to the Judgment Writer, printout taken, corrected, signed and then pronounced by me in open Court on this the 28th day of December, 2018) Sd/28.12.2018 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 117 Spl.C.C.No.191/2009 ORDER REGARDING SENTENCE Accused is present.
Sri Raghunath N. learned advocate for the accused and Sri.Chinnavenkataramanappa, the learned Public Prosecutor in-charge are present.
Heard with regard to sentence.
Sri. Raghunath N., learned advocate for accused submits that the accused is facing trial for the last 13 years as the case was registered in the year 2006. He is suffering from diabetics and high blood pressure and he is taking treatment for his heart ailments. He is also suffering swelling on his left leg due to injury sustained to his leg.
Both his sons are residing away from him, elder one in London and younger one at Chandigarh and hence, learned counsel for accused submits to show lenient view while imposing sentence on him.118 Spl.C.C.No.191/2009
The learned Public Prosecutor in-charge submits that the prosecution has proved the case against the accused and maximum sentence may be imposed on him.
Having heard the arguments on both sides and perusing the evidence on record this Court has already held that the accused has committed the offence punishable under the Prevention of Corruption Act, 1988. The accused was a public servant working as Assistant Executive Engineer has amassed assets disproportionate to his income to the extent of 67.88%. Taking into consideration of percentage of disproportionate assets, nature and gravity of the offence committed by the accused, hence, I proceed to pass the following:
SENTENCE Acting under section 248(2) Cr.P.C., the accused is sentenced to undergo simple imprisonment for a period of 2 (Two) years for the offence defined under section 119 Spl.C.C.No.191/2009 13 (1)(e) and punishable under section 13(2) of the Prevention of Corruption Act, 1988 and to pay fine of Rs.78,00,000/- (Rupees Seventy Eight lakh) in default to undergo Simple imprisonment for 6 (six) months.
Furnish free copy of the Judgment to the accused forthwith.
(Dictated to the Judgment Writer, transcribed and computerized by him, corrected, signed and then pronounced by me in open Court on this the 28th day of December, 2018) Sd/-28.12.2018 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 120 Spl.C.C.No.191/2009 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Smt.G.N.Rathnamma PW.2 : B.Parameshwarappa PW.3 : Smt.B.Lalitha PW.4 : Jayadeva Prakash PW.5: K.Srinivas PW.6: Smt.Lakshmiraju PW 7: Muniswamy PW 8: Manikanta PW 9: G.Siddagangaiah List of documents marked on behalf of prosecution:
Ex P 1 : Mahazar dtd 6.12.2006 Ex P1(a) : Signature of PW 1 Ex P1(b) : Signature of PW 2 Ex P1(c) : Signature of accused Ex P2 : Source Report Ex P2(a) : Signature of PW 2 121 Spl.C.C.No.191/2009 Ex P3 : Order dtd 5.12.2016 of Superintendent of Police, Karnataka Lokayuktha police station, Bengaluru Ex P4 : Search Warrant Ex P4(a) : Signature of accused Ex P5 : Search warrant Ex P6 : Search Mahazar drawn at House No.3(b), Cambridge Layout, Gowthami nest apartment, 3rd floor Ex P6(a) : Signature of PW 2 Ex P6(b) : Signature of PW 3 Ex P7 : Schedules Annexures 1 to 16B Ex P8 : Schedules Annexures 17 to 23 Ex P9 : Details with regard to education expenses of Abhishek Singh.
Ex P 10 : Details with regard to education expenses of Bishop Cotton Boy's School Ex P 11 : Details of BWSSB expenditures Ex P 12 : Report of Assistant Director of Agriculture Ex P 13 : Account details of Andhra Bank Ex P 14 : Details of BESCOM in respect of Bar & Restaurant Ex P 15 : Details of expenditure of BWSSB Ex P 16 : Copy of sale deed of House No.81, and report of Senior Sub-Registrar (Central) 122 Spl.C.C.No.191/2009 Ex P 17 : Details of Electricity charges in respect of property No.9 and 10 AEE, BESCOM M.G.Road sub- Division.
Ex P 18 : 'B' register extract of KA.03.MG.6543
Ex P 19 : Tax payment details B.B.M.P
Ex P 20 : Letter of St.Joseph Pre-University College
Ex P 21 : Loan details at Vijaya Bank.
Ex P 22 : H.P.Gas details
Ex P 23 : Details of accused salary
Ex P 24 : G.I.Pipe purchasing details.
Ex P 25 : Details of horticulture expenditure
Ex P 25(a) : Signature of PW 8
Ex P 26 : BSNL Expenditure report
Ex P 27 : Vehicles 'B' register extract
Ex P 28 : Details of kitchen articles
Ex P 29 : 'B' report extract of Skoda Car
Ex P 30 : Account details, SBI - Kadugodi branch
Ex P 31 : Indira Nagar Club details.
Ex P 32 : Electricity charges of House No.81,
BESCOM Hoskote
Ex P 33 : Sale deed documents by Sub-Registrar
(Central)
Ex P 34 : Copy of the sale deed in respect of house
No. 9 and 10.
123 Spl.C.C.No.191/2009
Ex P 35 : Details of tax paid, B.B.M.P J.B.Nagar Sub-
Division.
Ex P 36 : Copies of documents in respect of shop of
684 and 685, Senior Sub-Registrar
Ex P 37 : Details of account No.7130 and 10083,
Andhra Bank.
Ex P 38 : Tax paid details of house No.684, B.B.M.P
M.D.Pura
Ex P 39 : Copies of sale deed in respect of
Sy.No.392/1, 53, Sub-Registrar, Central Division Ex P 40 : Copies of sale deed and other documents in respect of Site No. 54 and 14, Sub -Registrar, K.R.Puram.
Ex P 41 : Valuation report Ex P41(a) : Signature of PW 5 Ex P 42 : Documents of sale of Flat site No.9 and 10. Ex P 43 : Details of bill, Bharathi Airtel Ex P 44 : Sale deed copy and other documents in
respect of site No.54/1, Sub-Registrar, K.R.Puram. Ex P 45 : Compensation amount paid in respect of Sy.No.269/1A of Kadugodi Ex P 46 : 'B' register extract, invoice etc., in respect of Maruthi ZEN car KA 03 ME 4567 Ex P 47 : Loan account extract, ICICI Bank. Ex P 48 : Sale deed copies in respect of Site No.220 124 Spl.C.C.No.191/2009 Ex P49 : Value and Insurance in respect of ZEN car Ex P 50 : Details of family expenditure.
Ex P50(a) : Signature of PW 4 Ex P 51 : Sanction order Ex P51(a) : Signature of PW 2 Ex P51(b) : Signature of PW 9 Ex P 52 : Final report in Crime No.48/2006 Ex P52(a) : Signature of PW 2 Ex P 53 : Letter of Assistant Director of Agriculture Ex P 54 : Building valuation report.
List of material objects marked on behalf of the prosecution:
NIL List of witnesses examined on behalf of accused: D.W 1. R.Jayaram Singh List of documents marked on behalf of accused: Ex D1. Account details of the accused, City Bank. Ex D2 : Account details No.4720, Vijaya Bank Ex D3 : Account details of 12913, Vijaya Bank Ex D4 : Account details of 470 of Gowthami Builders, Vijaya Bank.125 Spl.C.C.No.191/2009
Ex D 5 : Account opening form account No.470.
Sd/-28.12.2018 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 126 Spl.C.C.No.191/2009