Karnataka High Court
Sri Abubakar S/O.Hajimsab Jamakhandi vs The State Of Karnataka By Police ... on 5 November, 2024
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NC: 2024:KHC-D:16524
CRL.A No. 2769 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO. 2769 OF 2010 (C)
BETWEEN:
1. SRI ABUBAKAR S/O. HAJIMSAB JAMAKHANDI,
EXCISE INSPECTOR
MUDHOL CIRCLE, BAGALKOT
R/O.RAMESHWAR COLONY, JAMAKHANDI
DIST: BAGALKOT
AS PER THE ORDER DATED 21.09.2024, LR'S OF THE
DECEASED APPELLANT HAVE COME ON RECORD
1(A) SMT. JAITUNABI W/O ABUBAKAR JAMAKHANDI
AGE: 70 YEARS, OCC: HOUSEWIFE
R/O: DARGA COLONY, MAIGUR ROAD,
JAMAKHANDI, TAL: JAMAKHANDI,
DIST: BAGALKOTE - 587 301.
1(B) SMT. MUMTAZBEGUM
W/O HAROON RASHID SHIRASANGI
D/O ABUBAKAR JAMAKHANDI
Digitally AGE: 50 YEARS, OCC: HOUSEWIFE,
signed by
NARAYANA R/O: DARGA COLONY, MAIGUR ROAD,
UMA
Location:
JAMAKHANDI, TAL: JAMAKHANDI,
HIGH DIST: BAGALKOTE - 587 301.
COURT OF
KARNATAKA
1(C) SRI. KHAJA MOHINUDDIN S/O ABUBAKAR
JAMAKHANDI
AGE: 48 YEARS, OCC: PRIVATE JOB,
R/O: DARGA COLONY, MALGUR ROAD,
JAMAKHANDI, TAL: JAMAKHANDI,
DIST: BAGALKOTE - 587 301.
1(D) SMT. NAJEERA BEGUM W/O MOHAMMAD ISHAK
D/O ABUBAKAR JAMAKHANDI
AGE: 44 YEARS, OCC: HOUSEWIFE,
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NC: 2024:KHC-D:16524
CRL.A No. 2769 of 2010
R/O: DARGA COLONY, MALGUR ROAD,
JAMAKHANDI, TAL: JAMAKHANDI,
DIST: BAGALKOTE - 587 301.
1(E) SMT. FARIDABEGUM
W/O MOMAMMADHUSSAIN JAMAKHANDI
AGE: 49 YEARS,
OCC: HOUSEWIFE,
R/O: DARGA COLONY, MAIGUR ROAD
JAMAKHANDI, TAL: JAMAKHANDI
DIST: BAGALKOTE - 587 301.
1(F) SRI. AJAMAPASHA
S/O MOHAMMADHUSSAIN JAMAKHANDI
AGE: 30 YEARS, OCC: PRIVATE WORK
R/O: DARGA COLONY, MAIGUR ROAD
JAMAKHANDI, TAL: JAMAKHANDI,
DIST: BAGALKOTE - 587 301.
1(G) SMT. ARSHIYA W/O MUJIBURAREHAMAN MAIGUR
AGE: 28 YEARS, OCC: HOUSEWIFE,
R/O: DARGA COLONY, MAIGUR ROAD,
JAMAKHANDI, TAL: JAMAKHANDI,
DIST: BAGALKOTE - 587 301.
...APPELLANTS
(BY SRI. S S KOTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY POLICE INSPECTOR,
LOKAYUKTA POLICE STATION
BAGALKOT, NOW REP. BY HCGP
...RESPONDENT
(BY SRI. G I GACHCHINAMATH, SPECIAL PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 30.08.2010 PASSED BY THE
SESSIONS JUDGE, BAGALKOT, IN SPECIAL CASE NO.20/2004
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 13(1)(e)
R/W SECTION 13(2) OF PREVENTION OF CORRUPTION ACT.
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NC: 2024:KHC-D:16524
CRL.A No. 2769 of 2010
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.06.2024 COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. This appeal is filed by the appellant being aggrieved by the judgment of conviction and order on sentence dated 30.08.2010 passed in Special Case No.20/2004 on the file of the Sessions (Special) Judge at Bagalkot, wherein the Trial Court convicted the accused/appellant herein for the offences punishable under Sections 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C Act').
2. During the pendency of the appeal, appellant has died and vide order dated 21.09.2024, the legal representatives of the deceased appellant were permitted to come on record.
3. The rank of the parties, henceforth, will be referred to as their rankings in the Trial Court, for convenience. -4-
NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 Brief facts of the case:
4. It is the case of the prosecution that the Lokayukta in-
charge Police Inspector after obtaining permission from the Superintendent of Police, Belgaum, registered a case in Crime No.2/2000 against the accused for the offences punishable under Sections 13(1)(e) r/w 13(2) of the P.C Act. Thereafter, he obtained a search warrant from the Special Court, Bijapur to conduct a search of both the office and residence of the accused. On 30.03.2000 in the morning, he was accompanied by his staff and panchas and conducted raid at about 7.15 a.m and continued the search till 4.30 p.m., on the same day. He prepared an inventory and also a detailed panchanama as per Ex.P1. Many articles were seized in the house. After preparing an inventory, copies of the same were given to the accused. After conducting a detailed investigation, submitted the charge sheet against the accused.
5. The averments of the charge sheet would indicate that the accused had joined the service as Second Division Assistant in the Department of Excise, Government of -5- NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 Karnataka on 30.12.1965. After obtaining the necessary promotion in the said department, he retired from service on 31.03.2003. The Lokayukta police had fixed the check period from 1966-1997. During this period, he accumulated his assets worth Rs.49,16,946/-. After giving deduction of a sum of Rs.9,51,523.14 towards family expenses and also considering the known source of income of the accused, the authority noticed that the accused had accumulated disproportionate assets worth of 340.98% i.e., a sum of Rs.45,37,673.74.
6. After taking cognizance, the Special Court posted the matter for evidence. The prosecution in order to prove the case examined 40 witnesses as PWs.1 to 40 and got marked 201 documents as per Exs.P1 to P201 and the defence got examined nine witnesses as Exs.DW.1 to DW.9 and got exhibited certain documents as Exs.D1 to D9. The Trial Court after considering both oral and documentary evidence on record, recorded the conviction for the offences under Sections 13(1)(e) r/w 13(2) of the P.C. Act.
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7. Heard Sri.S.S.Koti, learned counsel for the appellant and Sri.G.I.Gachinamath, learned Special Prosecutor for respondent-State.
8. It is the submission of the learned counsel for appellant that the findings of the Trial Court in recording the conviction is erroneous and illegal and also opposed to the facts and law. Therefore, the same is liable to be set aside.
9. It is further submitted that the check period taken by the Investigating Officer commenced from 01.01.1966 till end of 1997. However, the raid had taken place on 30.03.2000. The said raid stated to have taken place was illegal and ill-logical. Though they have taken the check period from 1966-1997, the Investigating Officer took almost two years to conduct the raid which appears to be erroneous and the raid is not sustainable under law.
10. It is further submitted that though the raid was conducted on 30.03.2000, the charge sheet came to be filed on 06.04.2004 after lapse of four years. The charge sheet would indicate that the accused prima facie has committed offences under Sections 13(1)(e) r/w 13(2) of -7- NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 the PC Act. The Trial Court framed charge on 02.03.2007 for the above offences which was not in force. Therefore, framing of charge for the offences which was not in force would attract Article 20(1) of the Constitution of India. As such, the said charge is considered as material illegality.
11. It is further submitted that though the check period was taken from 1966, the Amended Act came into force in the year 1988. Such being the fact, the charge should have been framed under the old Act and not under the new Act. The Trial Court has committed a grave error in considering this aspect by ignoring the position of law and recorded the conviction which appears to be erroneous and not tenable under law. Making such submissions, the learned counsel for the appellant prays to allow the appeal.
12. To substantiate his contention, the learned counsel for appellant relied on the following decisions which read thus:
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1. JAGAN M. SESHADRI V/S STATE OF TAMIL NADU1
2. RAJENDRA JONKO V/S THE SUPERINTENDENT OF POLICE CBI MUMBAI AND ANOTHER2
3. R.S. KALAKAPUR V/S STATE OF KARNATAKA3
4. STATE OF MAHARASHTRA V/S KALIAR KOLI SUBRAMAINIAM RAMASWAMY4
5. G.V.S. LINGAM V/S STATE OF A.P5
6. STATE OF MAHARASHTRA V/S POLLUR DARABSHAW DARUWALLA6
13. Per contra, the learned Special Prosecutor for CBI vehemently opposed the said contentions and further he submitted that the Trial Court after appreciating the oral and documentary evidence on record opined that the accused is guilty of the offences stated supra.
14. It is further submitted that though the check period is commenced from 1966, the FIR came to be registered in 1 AIR 2022 SC 2399 :: 2022 AIR SCW 2613 2 2004 CRL.L.L.J.3703 :: (2004) 2 BOMCR (CRI) 902 3 1994 CRL L J 2696 :: ILR 1994 KAR 1175 4 1977 CRL L J 1740 5 1999 CRL L J 1026 6 AIR 1988 SC 88 :: (1988) MAHLR 691 -9- NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 the year 2000 under the amended Act. As on the date of filing of complaint and also filing of FIR, the old Act was not in force. Therefore, framing of charge under the amended Act and a conviction recorded under the same Act cannot be termed as illegal and the conviction recorded by the Trial Court is sustainable under the law.
15. It is further submitted that the accused though led defence evidence and got examined several witnesses to demonstrate that he was not having any disproportionate assets, the Trial Court rightly ignored the said defence after considering the evidence and recorded the conviction. The said conviction which is appropriate and interference with the said findings would not arise. Making such submissions, the learned Special Prosecutor prays to dismiss the appeal.
16. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, the following points which are emerging for my consideration are:
a) Whether the findings of the Trial Court in recording the conviction are sustainable?
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b) Whether the appellant has made out a case to interfere with the said findings?
17. After having considered the scope and ambit of the appellate jurisdiction, now, it is relevant to refer to the evidence of all the witnesses in detail for the purpose of reappreciation of the evidence. In addition to that, it is also necessary to refer and discuss the points raised by the learned counsel for the appellant in respect of the enforcement of law. The learned counsel for appellant raised the ground that the charge ought not to have been framed under the new Act and it should have been framed under the old Act. In this context, it is relevant to refer to the provision under Sections 13(1)(e) of the P.C Act.
"13. Criminal misconduct by a public servant.--[(1) A public servant is said to commit the offence of criminal misconduct,-
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 disproportionate to his known sources of income.
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant".
18. On careful reading of the above said provision, it makes it clear that the Amended Act, 1988 came into force on 09.09.1988. It is also not in dispute that the first information report was registered in the year 2000. It is also not in dispute that by that time the old Act was repealed. The provisions of Sections 30 and 31 of Act, 1988 which reads thus:
"30. Repeal and saving.--(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 under or in pursuance of the corresponding provision of this Act.
31. Omission of certain sections of Act 45 of 1860.--Sections 161 to 165A (both inclusive) of the Indian Penal Code, 1860 (45 of 1860) shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act."
19. On conjoint reading of those two provisions in connection with Section 6 of the General Clauses Act, 1897, it makes it clear that the Amended Act would be in force from the date of its enforcement. Merely because the Investigating Officer took the check period from 1966 to 1997, that cannot nullify the FIR which had been filed under the new Act. It is needless to say that FIR can be registered against any person who violated the law which is in force as on the date of its violation. Since the accused has committed the continued offence, it can be inferred that the filing of the case against the accused under the new Act be sustained and the contention of the learned counsel for the appellant that the charge ought
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 not to have been framed under the old Act loses its significance.
20. In the present case, P.W.1 Raju Bhagwan Mogi has stated that while he was working as Second Division Assistant in the Tahsildar office at Bagalkot, he came to Lokayukta office as per the direction of the Tahsildar to act as panch. One Chandrakant Marigeppa Tenginakai was also there. Both of them were taken to Bijapur and made them to halt at Bijapur in the night. On the following day, Lokayukta police took them along with their staff to the house of the accused which was situated at Jamkandi and conducted a search of the house of the accused. He supported the case of the prosecution.
21. P.W.2 is a witness to the panchanama which is marked as Ex.P3. He has supported the case of the prosecution.
22. P.W.3 stated to have sold Mahindra 575 Tractor to Mubarak Jamkhandi on hire for consideration. He identified the sale certificate as per Ex.P4.
23. P.W.4 stated to have prepared certified copies of three sale deeds as per Exs.P6, P7 and P8.
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24. P.W.5 stated to have furnished the details regarding the cable TV and its subscription and also the amount paid by the accused. The detailed certificate issued by P.W.5 is marked as Ex.P9.
25. P.W.6 stated to have given the details and also furnished the documents about the fixed deposits maintained by the accused and his brother in their bank. The said details have been furnished and marked as Exs.P10 and P11.
26. P.W.7 who was the Manager of Bijapur Grameena Bank had furnished the details of the bank account and deposits maintained by the accused and his family members. The said certificates have been identified as Exs.P12 and P13.
27. P.W.8 who was working as Head Master of Swami Vivekananda High School, Jamkhandi said to have issued documents relating to the fee paid to the children of the accused. The said register is marked as Exs.P14 and P15.
28. P.W.9 who was the Honorary Secretary of Sri.Rameshwar Employees House Building Co-operative Society,
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 Jamkhandi has stated that the accused had shares of Rs.2,000/- in their society and issued certificates to that effect which are marked as Exs.P16 and P17.
29. P.W.10 had deposed about the information of savings bank account and loan in the name of the family members of the accused in Sri.Rameshwar Financial Corporation, Jamkhandi wherein he was working as a Manager. He identified the documents given to the police as per Ex.P18.
30. P.W.11 who was working as Sub Registrar of Jamkhandi stated to have furnished the information regarding the properties of not only the accused but also the family members of the accused. The documents which he had furnished are marked as Exs.P19, P20 and P21.
31. P.W.12 was working as Secretary of Picard Bank. He furnished the details regarding the shares of his brother and also stated about the loan which was availed by them. The documents have been marked as Exs.P22 and P23.
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32. P.W.13 has given the details of the College and hostel fees paid by the son of the accused. The documents have been marked as Exs.P24, P25 and P26.
33. P.W.14 is said to have given the estimation of the expenses incurred by the son of the accused as per Ex.P27.
34. P.W.15 was taken to the house of the accused four years ago and shown some sarees to him and asked him to assess the value of the sarees. He valued the sarees as per Ex.P28.
35. P.W.16 had deposed about the fee paid by the children of the accused during their study in that college as per the documents marked as Exs.P30 and P31.
36. P.W.17 was taken to the house of the accused by the police and asked him to give the valuation of the furnitures seized under this case. According to him, he had prepared the value list of the furnitures and produced the same before the authority.
37. P.W.18 deposed about the bank deposits maintained by the accused in the names of family members in his bank namely State Bank of India, Jamkhandi Branch. He
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 identified the copies of the term deposit which are marked as Exs.P38, P39 and the original term deposit receipt marked as Ex.P40.
38. P.W.19 stated to have valued the pipeline drawn to the land of the accused which is situated at Hire Padasalagi Village in Sy.no.37/2A.
39. P.W.20 was working as Branch Manager of Jamkhandi Urban Co-operative Bank Limited, Jamkhandi had deposed the details regarding the savings bank account maintained by the accused in their bank. He stated that the accused was maintaining a savings bank account and also furnished the details regarding the same which is marked as Ex.P41.
40. P.W.21 was working as a Post Master of the Post Office situated at Jamkhandi. He deposed about the Indira Vikas Patra of the accused and furnished the details to the Investigating Officer and the same has been marked as Ex.P61.
41. P.W.22 was working as a Manager of Syndicate Bank, Jamkhandi Branch has furnished the details of the account held by the brother of the accused. According to
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 him, the brother of the accused had savings bank account with them and the said account contained a sum of Rs.2,30,226/-. He identified the documents given by him to that effect as Ex.P62.
42. P.W.31 was working as District Insurance Officer, KGID, Bijapur. He stated to have furnished the details regarding the accused and his insurance policy. The said document is marked as Ex.P78.
43. P.W.32 was working as Managing Director of Nandi Co-
operative Sugar Factory, Krishnanagar said to have issued certificates regarding the shares of the accused and those documents are marked as Exs.P79 and P80.
44. P.W.33 is the Manager of Bijapur Grameena Bank situated at Hire Padasalagi. He said to have furnished the details of the bank account of the accused. The said document is marked as Ex.P81.
45. P.W.34 the then Tahsildar said to have issued 8 combined extracts and 5 'D' entries as per Exs.P82 to P94.
46. P.W.35 has stated that while he was working as Inspector of Dharwad Lokayukta Police, he conducted the
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 raid and also conducted search of the office of the accused, however, no documents have been marked through him.
47. P.W.36 was working as a Manager, MSIL, Gulbarga said to have furnished the details of the loan account of the accused. The ledger extract has been marked as Ex.P95.
48. P.W.37 was working as Superintendent of Police, Karnataka Lokayukta, Bengaluru has stated that he received a source report with a request letter to lodge a complaint against the accused from the Police Inspector, Lokayukta, Bagalkot on 27.03.2000. After verifying the same, he said to have accorded permission to register a complaint as per Ex.P93.
49. P.W.38 was working as Police Inspector of Bagalkot Lokayukta Police office said to have taken up further investigation and conducted part of the investigation.
50. P.W.39 was working as Police Inspector, Lokayukta, Bijapur stated to have continued the investigation in part and handed over the further investigation to P.W.40.
51. P.W.40 has completed the investigation and filed the charge sheet.
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52. After analyzing the evidence of all the witnesses, to record the conviction under Sections 3(1)(e) of the P.C. Act, the following ingredients are required to be fulfilled, they are:
1) The prosecution must prove that the accused is a public servant.
2) The nature and extent of pecuniary resources or property which are found in his possession.
3) It must be proved as to what were his known sources of income i.e., known to the prosecution.
4) It must prove quite objectively that the resources or property found in possession of the accused were disproportionate property of his known source of income.
53. Once the above ingredients are substantially proved, the offence of criminal misconduct under Section 13(1)(e) of the P.C Act would be stated to have been committed.
54. In this case, the learned counsel for the appellant has drawn my attention that the gold appraiser was not there at the time of valuing the gold articles which were seized at the time of conducting the raid. The Trial Court while
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NC: 2024:KHC-D:16524 CRL.A No. 2769 of 2010 considering the value of the said gold articles, opined that the evidence of PW.1 -panch and P.W.40 - Investigating Officer and also documents as per Ex.P1 and P165 would indicate that the Investigating Officer had obtained report from the gold appraiser. The gold appraiser valued the said seized gold articles for a sum of Rs.1,19,464/-. Having considered the report, the Trial Court arrived at a conclusion that the value of gold articles was valued as per Ex.P165 appears to be appropriate and correct.
55. On careful analysis of the entire evidence on record, the Trial Court rightly concluded that the accused had disproportionate assets worth 153.6% more than the known sources of income of the accused. After considering the findings of the Trial Court in arriving at a conclusion in that regard, appears to be appropriate and correct. Hence, interference with the said findings has not been warranted.
56. In the light of the observation made above, I answer the points raised for my consideration are:
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Point No.1 : in the 'Affirmative'
Point No.2 : in the 'Negative'
57. Hence, I proceed to pass the following:
ORDER
1. The appeal stands abated against the deceased.
2. The judgment of conviction and order on sentence dated 30.08.2010 passed in Special Case No.20/2004 by the Sessions (Special) Judge at Bagalkot is confirmed only in respect of fine and also forfeiture order passed by the Trial Court.
3. The liberty is reserved to the Trial Court to recover the fine as per Section 421 of Cr.P.C.
Sd/-
(S.RACHAIAH) JUDGE UN List No.: 19 Sl No.: 1