Indian Kanoon - Search engine for Indian Law

7.26. In addition to the above decisions, the counsel for accused has also placed reliance on the decision reported in Spl.CC.No.134/2012 LAWS (MAD) 2006 (9) 143 in the case between G.Malligaselvaraj & Manimekalai and State and decision reported in AIR 2007 SC 1860 in the case between State Inspector of Police, Vishakapatnam and Suryashankaram Kari and the decision in the case between L.K.Advani and CBI, LAWS (MAD) 2007(12) 547 in the case between R.Kannappan & K.Chandrashekaran Vs. State by Deputy Superintendent of Police. By placing reliance on the above decisions, it is submitted that unless and until the prosecution does not call for explanation specifying the quantum of disproportionate assets, the accused will have no clue about the outcome of investigation and hence the accused will have no opportunity to explain the alleged disproportionate assets. In the case of R.Kannappan, by placing reliance on a decision reported in 1993 Crl.L.J 308, it is held that after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known source of income, the accused must be given an opportunity to explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the case of prosecution. In view of the above settled proposition of law it is incumbent upon the court to appreciate the facts Spl.CC.No.134/2012 and circumstances of the present case and to find out whether the accused had an opportunity to submit his explanation or not. In the present case the evidence of PW.4 that he issued notices to the accused on 26.10.2010, 26.02.2011, 26.03.2011, 28.03.2011 and on 05.05.2011, is not at all denied by the accused. Under section 106 of the Evidence Act it is for the accused to explain the facts which are within his special knowledge. Though the notices referred to above are received by the accused, he did not choose to issue any explanation. Since the accused kept quiet all along, the Investigating Officer without any option filed the Final Report. Therefore, the contention of the accused that there was no fairness in the investigation cannot be accepted. On the other hand, it has to be held that the accused did not utilize the opportunity so offered by the Investigating Officer. Admittedly, the criminal case has been registered against the accused during 2009. However, till the date of filing of Final Report all along the accused has kept quiet. As discussed above, the notices were duly served on the accused. Hence it is crystal clear that the accused has adopted wait and watch tactics instead of filing his explanation as required under law. Thus, this court is of the considered view that the ratio of the above decisions relied by the counsel for the accused is not Spl.CC.No.134/2012 applicable to the facts and circumstances of the present case. Hence, the contention of the accused that the Investigating Officer did not give an opportunity for him to explain the source of income as required under section 13(1)(e) of Prevention of Corruption Act is cannot be accepted. However, it is the duty of this Court to appreciate the materials placed by the prosecution both by way of oral and documentary evidence and similar type of materials produced by the accused based on the settled proposition of law.