Karnataka High Court
Sri B Ramakrishna vs State Of Karnataka By on 16 August, 2023
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.339 OF 2019
BETWEEN:
SRI B RAMAKRISHNA
OLD ADDRESS: POLICE INSPECTOR
MAHALAKSHMI LAYOUT POLICE STATION
BENGALURU-560086
PRESENT ADDRESS:
POLICE INSPECTOR
C.I.D. (FIU DIVISION)
BENGALURU - 560 011
... APPELLANT
(BY SRI PARAMESHWAR N. HEGDE, ADVOCATE)
AND:
STATE OF KARNATAKA BY
LOKAYUKTHA POLICE
CITY DIVISION
KARNATAKA LOKAYUKTHA
BENGALURU - 560 001
... RESPONDENT
(BY SRI VENKATESH S. ARABATTI, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
2
DATED 18.02.2019 PASSED BY THE LXXVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE,
CITY CIVIL COURT, BENGALURU (CCH-77) IN
SPL.C.NO.146/2010 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 13(1)(e) READ WITH SECTION 13(2) OF
PREVENTION OF CORRUPTION ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.07.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-accused under
Section 374(2) of Cr.P.C. for setting aside the judgment of
conviction and the order of sentence passed by the LXXVI
Additional City Civil and Sessions Judge and Special Judge,
City Civil Court, Bengaluru in Special Case No.146/2010
dated 18.02.2019 for having found him guilty and
convicted and sentenced him to undergo rigorous
imprisonment for 4 years and to pay fine of Rs.30,00,000/-
and in default, he shall undergo simple imprisonment for
11/2 years for the offences punishable under Section
13(1)(e) read with Section 13(2) of Prevention of
Corruption Act (hereinafter referred to as 'P.C. Act').
2. Heard the learned counsel for the appellant and
the learned Special Public Prosecutor for the respondent-
Lokayuktha.
3. The rank of the parties before the Trial Court is
retained for the sake of convenience.
4. The case of prosecution is that the appellant-
accused being the public servant, while working as Police
Inspector in Mahalakshmi Extension Police Station, during
the period from 19.08.1996 to 15.05.2008, acquired the
total assets of Rs.14,06,307.97 and spent expenditures of
Rs.35,28,676.66. The total assets and expenditure comes
to Rs.49,34,984.63. The further case of prosecution is that
the income of the accused from all sources was
Rs.26,02,382/-, thereby he is having disproportionate
assets of Rs.23,32,602.63, which amounts to 89.63%.
The accused is also said to be having 3 landed properties
at Bengaluru and 1 house with partial investment in
Chikkaballapur, a Fiat car and having huge deposits in the
Post Office and other banks, thereby, he has committed
the offences punishable under Section 13(1)(e) read with
Section 13(2) of the P.C. Act. The Police after the
investigation, filed charge sheet against the accused.
5. The accused denied the charges and claimed to
be tried. Accordingly, the prosecution examined 17
witnesses and got marked 76 documents. After closing the
evidence on the side of prosecution, the statement of the
accused under Section 313 of Cr.P.C. was recorded and
the accused also filed the written statement under Section
313(5) of Cr.P.C. and he also examined 2 witnesses and
got marked 7 documents. After hearing the arguments, the
trial Court found the accused guilty and convicted and
sentenced him as stated at paragraph No.1 of this
judgment. Being aggrieved by the same, the appellant-
accused is before this Court.
6. The learned counsel for the appellant has
contended that the judgment of the Trial Court is
erroneous and not sustainable under the law. The findings
of the Trial Court is only based upon the statement of the
Investigating Officer and not considering various income
and expenditures in the evidence. Therefore, the judgment
of the Trial Court is not sustainable under the law.
7. The learned counsel for the appellant has
mainly contended that in the assets mentioned by the
Investigating Officer, the construction of building for
Rs.1,63,646/- was taken into expenditure of this appellant
which is not correct, since the building was constructed by
the father of the appellant by borrowing loan, therefore,
that amount shall be excluded from the expenditures. The
another contention is that he has taken a Fiat car from his
friend for going to Tirupati, the said car was parked in his
compound and that was considered as assets of the
appellant for the tune of Rs.2,10,000/- which has to be
deducted from the assets of the appellant.
8. The learned counsel for the appellant further
contended that in the expenditure account, a stamp duty
of Rs.1995/- has been considered as his expenditure, it is
not correct. The appellant was staying in a rented house
along with his brother, therefore, the water and electricity
charges should not be included in the expenditure account.
50% of the expenditure paid by his brother, the fuel
expenditure of the car is included which is not correct. The
LIC premium also included. The rent for the house at
Gowribidanuru also wrongly calculated and the entire rent
of the HBR Layout also considered as his expenditure
which is not correct. The marriage expenditure included
Rs.1,00,000/- which is not correct. The birthday expenses
of Rs.10,000/- included, that is also not correct. The
amount withdrawn from the Bank which was utilized for
the purpose of household expenditure that was calculated
twice and there is a duplication. He further contended that
the transaction made by his wife in the business has been
calculated in his expenditure which is not correct.
Therefore, if these amounts were excluded, the income of
the appellant is excess than the assets. The learned
counsel further contended that there was savings under
the National Savings Certificate, he has paid Rs.2,00,000/-
and received Rs.2,94,300/- by redemption, this amount
was neither considered in the expenditure nor in the
income. Rs.94,300/- should be considered as income of
the accused and further contended that the accused has
given Schedule IV, he has claimed income from the
business activities of his wife and the income tax returned
also filed. The wife of the accused declared income for
Rs.1,48,600/- and Rs.1,52,480/- which were not
considered. If everything is properly considered, the
income of the appellant would be Rs.31,35,262/- and his
assets would be Rs.20,44,853/-. Thereby, there is excess
income than the assets and thereby, there is no
disproportionate assets and also contended that the
department already initiated Departmental Enquiry and
exonerated from the charges, thereby, the appellant is
entitled for acquittal and degree of proof in the criminal
case is more than in the enquiry, wherein, the enquiry
itself has exonerated, therefore, the appellant cannot be
convicted. The learned counsel also contended that the
evidence of the prosecution witnesses supported the case
of the appellant and there is no findings for disbelieving
those evidences and the income tax return filed by the wife
of the appellant not considered by the Trial Court, hence,
prayed for allowing the appeal. In support of his
arguments, the learned counsel has relied upon the
judgments of Hon'ble Supreme Court which are as under:
1) State of Maharashtra v. Wasudeo
Ramchandra Kaidalwar reported in
(1981) 3 SCC 199.
2) Vasant Rao Guhe v. State of Madhya
Pradesh reported in (2017) 14 SCC
3) Ashoo Surendranath Tewari v. CBI and
Another reported in (2020) 9 SCC 636.
9. Per contra, learned counsel for the respondent
supported the judgment of the Trial Court and contended
that the Investigating Officer considered only 1/4th of the
construction expenditure for Rs.1,63,646/- has been taken
but not the entire amount of Rs.6,00,000/-. The father of
the appellant admitted in his statement that his sons
helped him for construction, therefore, there is no wrong in
calculating the said amount in the expenditure of the
appellant and further contended that as regards to the Fiat
car which was parked in front of the house of the appellant
and the documents also available in the vehicle, therefore,
it cannot be said that the vehicle does not belong to the
appellant. Therefore, rightly considered that the car belong
to the assets of the appellant and further contended that
there is no evidence adduced by the appellant with regard
to the expenditure of water and electricity charges. As
regards to the LIC Premium, an amount of Rs.40,000/- has
been deducted by the Investigating Officer, remaining 9
months has been considered. The marriage expenditure
was only a meager amount considered as his expenditure.
The bank transactions reveals he has borrowed money
through cheque as well as cash. The burden of proof is on
the appellant to rebut the evidence of the prosecution.
However, admitted that the Investigating Officer not
considered the National Savings Certificate (NSC) amount.
Even, if it is considered Rs.94,000/- as income of the
appellant, it will not change the case of the prosecution.
Hence, prayed for dismissing the appeal. In support of his
contention, the learned counsel for the respondent has
relied upon the judgments of the Hon'ble Supreme Court
which are as under:
1) Pooran Mal v. The Director of
Inspection (Investigation), New Delhi and
Others reported in (1974) 1 SCC 345;
2) H.N. Rishbud and Inder Singh v.
State of Delhi reported in (1955) 1 SCR
1150;
3) C.S.D. Swami v. State reported in
(1960) 1 SCR 461.
4) CBI and another v. Thommandru
Hannah Vijayalakshmi reported in 2021
SCC OnLine SC 923.
5) The judgment of this Court in the
case of S.P.Raju vs. Lokayukta Police in
Crl.Rev.P.No.64/2014.
10. Having heard the arguments and perused the
records, the points that arise for my consideration are:
"1) Whether the prosecution proves that the
appellant amazed the assets which is
disproportionate to the known sources of
income to the tune of Rs.15,51,383/- at
59.63%, thereby, it is a misconduct
punishable under Section 13(1)(e) read
with Section 13(2) of P.C. Act ?
2) Whether the judgment of the Trial Court
call for interference ?"
11. Prior to appreciation of evidence on record, it is
worth to mention the evidence adduced by the prosecution
witnesses before the Trial Court.
12. PW.1-K.Girijamma is the Second Division
Assistant in Sub-Treasury, Gowribidanuru. She has
deposed that on 06.05.2008, she accompanied along with
the Police Officer to the house at Dhanwantry Road of
Gowribidanuru, the said house was found locked. The
Lokayuktha officials sealed the said lock of that house and
prepared the panchanama as per Ex.P.1. There is no cross
examination and there is no material evidence from this
witness to help the prosecution case.
13. PW.2-D.Muniyappa, a panch witness who was
working as FDA in the office of the Joint Director, Industrial
and Commerce Department, Chikkaballapura. He has
deposed that on 06.05.2008 on the instruction of the
Higher Officer he went to the Lokayuktha office, then he
went to the house at Raghavendra Colony and the police
prepared panchanama and later, they proceeded to the
house of one Bheemappa. They conducted the raid, they
seized 35 documents under the panchanama and police
prepared panchanama as per Ex.P.2. He has identified the
same. In the cross examination, he has admitted that the
Investigating Officer has not shown any warrant for
conducting the raid and the accused was not present at the
time of the raid. The value of the articles were fixed by the
Investigating Officer and he is not an expert or valuer and
further admits without ascertaining the model, date of
purchase, running condition, whether it is gifted or sale,
the value of the articles were fixed and he came to know
the said house belong to Bheemappa who is the father of
the appellant and as per the evidence of this witness, the
value fixed by the Investigating Officer is on the
assumption.
14. PW.3-B.Bhaskar has deposed that on
08.05.2008, he went to the Lokayuktha office on the
instruction of the Police Inspector and the police got
introduced the accused in the office, there is a suitcase
with him and a mahazar was conducted. On opening of the
suitcase, it was found passport, bank passbook, licence,
RC book of the vehicle, hospital bills, clothes. The same
were seized under the panchanama as per Ex.P.3 and this
witness treated hostile. On perusal of the evidence of this
witness, he has stated that he has acted as panchas in 5 to
6 cases and he was not present at the time of arrest of the
accused and the contents of Ex.P.3 was not read over.
Therefore, the evidence of this witness also not having
much importance.
15. PW.4-T.S.Nagaraja is the Assistant Executive
Engineer, PWD Sub-Division, Chikkaballapura has deposed
that at the request of the Dy.S.P., Karnataka Lokayuktha,
he has valued the house No.407/4, Prashanthanagara,
Ward No.4, Chikkaballapura and gave report on
08.02.2010 and as per his evidence, the said house was
standing in the name of mother of the accused and he has
identified the report as per Ex.P.4 and the value of the
property was Rs.8,83,688/- after deduction of 10% of
contractors profit and the valuation of the property is
Rs.9,81,876/-. In the cross examination, he has stated the
Lokayuktha Inspector has not sent any requisition for
evaluating the house property of the mother of the
accused and further says though one Asst. Engineer was
present at the time of valuation, but he has not mentioned
the same in the valuation report. He further says the
Dy.S.P., Lokayuktha has stated that the ground floor
building was constructed in the year 1989-90, the first and
second floor building was constructed in the year 2005-06
and further he admits, if the Schedule Rates(SR) taken for
the year 1989-90, the valuation would be definitely
reduced and he has further contended that he has not
verified the completion certificate of first and second floor
building and further admits, without going through the
completion certificate, he cannot say in which year the
building was constructed and further admits, as per the
S.R. value of the building in the year 2001-02,
comparatively with the year 2005-06, it will always have
difference and lesser in value. He has also not given any
opinion regarding the wood and also stated that he has not
calculated the quantity of steel used but taken only a
average. On perusal of the evidence of this witness, it
clearly shows, this witness given the report only on the say
of Investigating Officer and not properly evaluated the
property and without going through the completion
certificate, he cannot say whether the building was
constructed in the years 2001-02 or 2005-06 and he has
stated only the present market value of the expenditure as
on the date of investigation, but not the value and
expenditure incurred in the year 2001-02 during
construction period.
16. PW.5-A.M Chandrappa who is a Chief General
Manager, MSIL, Bengaluru and the colleague of the
accused where they both are the college mates who were
studying B.E. together and he has stated, he has
purchased a pre owned car in an auction for Rs.2,10,000/-
and registration number of the car is KA-04 Z-4084, it is
FIAT PALIO. He further stated that in the year 2007, he
has transferred to Chennai. Subsequently the accused
requested him for his car to travel to Tirupati along with
his family members and PW.5 asked his wife-Sujatha to
give the said car, key along with the documents to the
accused for his use. After giving the car, within a week, a
raid was conducted and due to which,h the accused was in
depression, therefore, he has not requested to return of
the car. He further deposes the accused informed him
about the seizure of the car by Lokayuktha as the car was
parked in front of the house of the accused and this
witness requested the accused to get release the car and
this witness treated as hostile and in the cross
examination, he has further confirmed that he has paid
Rs.2,10,000/- for purchase of the car in a public auction by
producing Demand Draft. But he has denied that the car
was purchased by the accused and also further denied that
it was benami transaction. In the cross examination of the
learned counsel for the accused, the R.C. Book of the
vehicle, the receipt for purchasing the vehicle, Form
Nos.29 and 30 were all produced and marked as Ex.P.7
and 8 and sale receipt also marked as Ex.P.9. The sale
certificate was produced and marked as Ex.D1. He further
admits that the documents of the vehicle was given to the
accused at the request of the accused as he is proceeding
to Andhra Pradesh by crossing the border of the State, as
the documents are necessary, it was given to the accused
for taking the vehicle to the Tirupati. This witness also
stated he has purchased the vehicle out of his salary
savings. On perusal of the evidence of this witness, it is
clear that this witness (PW.5) had purchased the car in the
public auction sale by paying the demand draft and not by
cash. The sale certificate and receipts were all stands in
the name of PW.5. Neither the Investigating Officer nor
the prosecutor brought any material to show this witness
deposing false and producing any document to show this
vehicle was purchased by the accused through the PW.5
and Investigating Officer also not collected any material to
show the PW.5 have not purchased the vehicle out of his
own income. Therefore, this witness though examined on
behalf of the prosecution, but his evidence is supporting
the case of the accused to prove the fact that the accused
is not the owner of the Fiat car. It is clear from the
evidence of the accused as well as the documents that the
accused has taken the vehicle from his friend who is in
Chennai and the car was not used by PW.5 and he asked
his wife Sujatha to give the car for going to Tirupati. It is
in Andhra Pradesh. Definitely, the documents pertaining to
the car is very much required while crossing the border of
the State by the check post for verification of the same,
therefore, merely the car is parked in the compound of the
accused with document cannot be presumed without any
proper evidence that the accused is the owner of the car.
17. PW.6-H.R.Radhamani is the Investigating Officer
who registered the FIR, conducted the raid, seized the
valuable documents under the panchanama and filed the
charge sheet. According to his evidence, the assets of the
accused was Rs.14,06,307.97/-, the expenditure was
Rs.35,28,676.66/- and total Rs.49,34,984.63/- and income
was Rs.26,02,382/- and disproportionate asset was
Rs.23,32,602.63/- (89.63%). The evidence of this witness
will be discussed in the later part of the judgment.
18. PW.7-Prasavanna V. Raju is one of the
Investigating Officer who conducted part of the
investigation.
19. PW.8-Rangaswamy is the Assistant Director of
Agriculture, Kolar has deposed that he received a
requisition from Dy.S.P. Karnataka Lokayuktha on
08.01.2010 to give report regarding income received from
Ragi crops grown in the agricultural land measuring 1 acre
in Sy.No.150 of Chelaganahalli Village and he has verified
the RTCs and submitted the report that the gross income
was Rs.74,605.35/-, the expenditure was Rs.30,250/- and
the net income was Rs.44,355.35/- and given report as
per Ex.P.70. During the cross examination, this witness
has admitted that the ragi was grown in the said land and
his report does not reveal the income from the ragi during
the year 2000-01 and 2001-02 and further admits, he has
not mentioned the crops in the report and he also not
mentioned the tomato crop grown in 22 guntas of land.
He further admits that he has not visited the spot and
given report only based upon the RTC and further admits,
he has considered the price lowest to calculate the value of
the ragi crop and he could not consider the water source,
sale and fertility of the soil. Considering the admission
made by him in the cross examination, the report of this
witness is not correct and not given a proper value of the
income from the agricultural land and without going to the
spot has given report just based upon the RTCs.
20. PW.9-Gayathri.M, is the Deputy Director of
Agriculture, Bengaluru, according to her evidence on
07.01.2010 on the requisition of Dy.S.P. she has given
report in respect of income from Field Bean and Ragi Crop
grown in the agricultural land measuring 31 guntas in Sy.
No.55 of Narasapura village during the year 1998-99 and
205-06. She has given report that income was Rs.1,199/-,
the expenditure was Rs.2,976/- and the gross income from
Ragi for the year 2005-06 was Rs.5,297/-, the expenditure
was Rs.4,458/-, the net income was Rs.839/- and Ex.P.49
is the report. In the cross examination, this witness
admitted, she has not visited the spot and not verified the
type of management of cultivation, source of water,
fertility of the soil. She further admits, she has not verified
the bore well situated in the land and further admits, she
has mentioned the income by considering the lowest yield
of the crop and also admits the maximum and minimum
yield derived from the particular crop would be decided by
the experts. In view of the admission made by this
witness, it clearly reveals, without going to the spot and
without verifying the field had given opinion by showing
the net income from agriculture land which is a meager
amount cannot be acceptable. The evidence of PWs.8 and
9 are not useful for the prosecution case.
21. PW.10-Jayadev Prakash is the Joint Director of
Statistics worked in Lokayuktha. According to his evidence,
he received requisition from S.P., Police Wing to give
report about the house hold expenditures (Invisible) of the
accused and his family members during the check period
19.08.1996 to 15.05.2008, he has submitted the report as
per Ex.P.58 that the expenditure on the food and non food
items were Rs.3,36,834/-. In the cross examination, this
witness admits he had no knowledge about the food habit
of the accused and the family members and he cannot give
correct calculation. Though this witness has denied the
suggestion that the report was unscientific and he has
exaggerated the expenditure, but in order to give that
opinion, it is not based upon the any scientific reason and
without ascertaining the food habit of the accused,
therefore, the expenditure mentioned also disputed by the
learned counsel for the appellant.
22. PW.11-Lohith has deposed that about 8 to 10
years back the Lokayuktha Police called him to the Police
Station and he was a panch witness but this witness
turned hostile not supported the prosecution case.
23. PW.12-Subbarao was working as RFO in Malur
Range Forest has deposed that on the requisition of
Dy.S.P., he calculated the value of eucalyptus tree in
Sy.No.81/2 belong to the accused. Then he has visited the
spot, assessed the value of the eucalyptus trees as
Rs.2,82,000/- and expenses was Rs.3,500/-. The actual
value was Rs.2,78,500/- and he has received the report as
per Ex.P.71. In the cross examination, he has stated, he
has maintained Tour Dairy, but not produced the same to
the Investigating Officer and for visiting the spot, he has
not verified any panchanama and he further admits, he do
not know the number of the trees and further deposes, he
has seen only 1 acre 4 guntas of land. A suggestion was
made that he has not at all visited the spot though this
witness denied the same, but there is no proper
authenticated report in this regard.
24. PW.13-K.R.Prakash is the panch witness to the
Ex.P.14. This witness also turned hostile in respect of
seizing the silver articles.
25. PW.14-Ajai Kumar Singh is the retired D.G. and
I.G.P. issued the sanction order on 30.03.2010 as per
Ex.P.73. In the cross examination, he has admitted that
the panchanamas were prepared prior to the registration
of the case and he do not remember what was mentioned
in the APR and admits that the accused has mentioned
about the acquisition of site Nos.255 and 256 in his APR.
But he do not remember whether he has gone through the
same. He further admits, the APR is Ex.D.4 while issuing
the sanction. He further deposes that in Ex.P.73, the value
of the property shown as "0" as per the report of the
Investigating Officer and it is not his findings. However, he
has denied the issuance of sanction without application of
mind.
26. PW.15-Kariyanna is the retired Superintendent
in RTO has deposed that he is having house in HBR Layout
and he has let out the said house to the accused and his
brother for monthly rent of Rs.6,000/- and advance
amount of Rs.50,000/-. The water bill was included in the
rent and the electric charges payable by the tenants. This
witness also turned hostile not supported the prosecution
case. Therefore, the evidence of this witness is not useful
for the prosecution case.
27. PW.16-Ramaratna Kumar is the retired Dy.S.P.
has deposed that on 06.05.2008 at request of PW.7, he
has searched the house of the father of the accused along
with panchas and on searching, he found house hold items
about 2,45,000/- and 35 documents like passbooks,
property documents, driving licence, gun licence, original
gift deed, sale deed, mutation order and other documents
seized under the panchanama as per Ex.P.75. In the cross
examination, he has admitted in Ex.P.2, the signature of
father or mother of the accused was not obtained..
28. PW.17-Irshad Ahmed Khan, Dy.S.P., CRE Cell,
Bengaluru has deposed when he was working as Police
Inspector he has authorized to search the house of the
accused and on the same day, he went to the house at
Gowribidanuru, then the accused came there with key and
he has sealed the house, then he verified the house, there
was household items worth of Rs.1,40,750/- and he has
prepared the panchanama as per EX.P.17. In the cross
examination, he has stated that he has valued the
properties, the value of the items during the period of raid
and he further admitted, the accused has informed that
items are not belong to him.
29. The appellant-accused also examined two
witnesses as D.Ws.1 and 2, DW.1-Dr.M.V. Srinivas Murthy,
a Retired Assistant Director of Animal Husbandary has
deposed that one Yallamma W/o Bheemappa approached
him for project report with respect to dairy farming to
submit the same to Bank for the purpose of loan and he
has given the report, according to his evidence, there was
income of Rs.20,25,245/- during the year 1996 to 2007 as
per Ex.P.30 and according to his evidence, the said
Yallamma was feeding the cows, buffalos, bulls, calves and
getting income from the said animals and manure. He also
given statement in the Departmental Enquiry of the
accused as per Ex.D.7. In the cross examination, nothing
elicited to disbelieve the evidence of this witness.
30. DW.2-Juguraj, according to his evidence, he is
running a jewellery shop and the father of the wife of the
accused had purchased two ornaments from him and he
has also identified the vouchers in Ex.P.30 page Nos.243
to 245. He also deposed, he has given receipt to the wife
of the accused for purchasing the ornaments for
Rs.1,11,250/- on 30.10.2007, Rs.1,30,200/- sold on
02.12.2007 and Rs.1,31,300/- on 2.2.2008. He further
deposes that the police enquired him and in the cross
examination, denied the evidence of this witness as false,
but nothing elicited to disbelieve the evidence of this
witness.
31. On careful perusal of the evidence of the
witnesses and the arguments addressed by the learned
counsel for the appellant, he has mainly disputed the
assets calculated by the Investigating Officer in the
material collected during the investigation and in the
evidence.
32. According to the Investigating Officer-PW.6, the
assets of the accused was mentioned as Rs.12,65,558/-
which are mentioned as under:
Sl.No. Particulars Amount in Rs.
1 Cost of Site No.255 & 256, Assessment 1,44,000-00
No.33/2P, 34, Khata No.306, Sampigehalli,
Yelahanka Hobli, Bengaluru, purchased in the
name of wife of accused, Smt.Bhanuprabha,
on 22.5.2000
2 Cost of site purchased in the name of 6,88,500-00
Smt.Bhanuprabha bearing site No.47,
Nagavara village, Bangalore North Taluk, on
6.8.2004
Chikkaballapur Tq in the name of accused
4 Amount in Corporation Bank, Nrupathunga 2,761-00
Road, Bengaluru in the name of accused
5 Amount in SBM Bank, Gauribidnur branch, 12,425-00
Chikkaballapur of accused
6 Amount in Canara Bank, Gauribidnur branch, 5,705-00
Chikkaballapur of wife of accused
7 Amount in SBM Bank, HBR layout branch, of 1,160-00
wife of accused
8 Amount of Dena Bank, Kolar District of 34-00
accused
9 Amount in Canara Bank, Kalyananagar 1,077-00
branch, Banaswadi, Bengaluru, of accused
10 Cost of Fiat car No.KA-04-Z-4084 2,10,000-00
11 Cost of silver articles 26,250-00
12 Purchase of Kissan Vikas patra in the name 10,000-00
of daughter of accused
Total Rs.12,65,558
33. Out of the said properties, the learned counsel
for the accused disputed Sl.No.3-cost of construction of
Rs.1,63,646/- and Sl.No.10-the cost of Fiat car of
Rs.2,10,000/-. In respect of the cost of construction, the
case of the accused is that the house property belong to
mother of the accused which was purchased on
31.08.1994 and constructed the house in year 2000-01
and in the year 2006, the property was gifted to the
accused on 28.03.2006 under Ex.P.56. The Investigating
Officer valued the property at Rs.9,81,876/- and he has
calculated the property which was constructed by all the
family members of the accused including the parents and
four children. Therefore, a value of Rs.1,63,646/- has been
calculated as cost of construction of the house which was
seriously disputed by the accused. As per the evidence of
the accused in the cross examination that his father has
constructed the house by obtaining the loan from the bank
and he has not contributed any amount in the
construction. Though the Investigating Officer examined
the parents of the accused as CWs.48 and 49-Bheemanna
and Yallamma, but those witnesses were not examined
before the Court. The Investigating Officer admitted that
he has not collected the documents to show the accused
had contributed the said amount for construction of the
house. The Trial Court while considering the assets has
accepted the evidence of Investigating Officer only on the
ground that the parents of the accused given statement to
the police, therefore, the Trial Court accepted the evidence
of the Investigating Officer for the calculation of
Rs.1,63,646/- as contribution of the accused which is not
correct. The statement of the witnesses made under
Section 162 of Cr.P.C. is not admissible until it is proved
by the prosecution by adducing evidence in the Court
except any discovery of fact any confession statement or
statement of the witnesses is not admissible in the
evidence. The learned counsel for the appellant has relied
upon the judgment of the Hon'ble Supreme Court in the
case of Vijender vs. State of Delhi reported in
(1997) 6 SCC 171 has held that the statement made
before the Police Officer during the investigation cannot be
used for any purpose except when it attracts Sections 27
or 32(1) of the Evidence Act. Therefore, in my considered
view, the Trial Court committed error in accepting the
Investigating Officer's evidence that accused contributed
Rs.1,63,646/- shall be excluded from assets of accused.
34. The learned counsel also disputed the cost of
the Fiat car for Rs.2,10,000/-. In this regard, the
Investigating Officer has stated when raid was conducted
there was car parked in front of the house of the accused
and it was considered as benami property of the accused,
whereas, the accused has contended the vehicle belong to
his colleague, he has taken the vehicle from him to going
to Tirupati but in order to cross the border, the documents
were kept in the vehicle and the Investigating Officer
examined PW.5-A.M.Chandrashekar, he has deposed that
he has been transferred to Chennai and his car was left in
his house. His wife Sujatha was staying at Bengaluru . The
accused requested the car, hence, he has sent the car for
going to Tirupati and within a week, the Lokayuktha seized
the car. Exs.P.5 and P.6 are the Form Nos.29 and 30-sale
certificates, sale receipts were all produced and marked.
The evidence of this prosecution witness clearly supports
the case of the accused rather than the prosecution. This
witness has been cross examined by the Investigating
Officer and this witness categorically stated that he has
purchased the vehicle in the public auction sale by
producing the Demand Draft out of his salary savings. The
Investigating Officer not collected any material to show the
that the amount of Rs.2,10,000/- was belong to the
accused. On the other hand, the evidence of this witness
clearly reveals that this car belong to PW.5. Therefore, the
value of the said car for an amount of Rs.2,10,000/-
cannot be considered as assets of the accused. The Trial
Court committed error in disbelieving the evidence of this
witness, hence, I hold Rs.2,10,000/- should be excluded
from the assets of the accused.
35. Thereby, the accused able to establish the
amount of Rs.1,63,646/- towards the cost of construction
and Rs.2,10,000/- towards the cost of Fiat car, and totally
Rs.3,73,646/- shall be excluded from the assets of the
accused. If this amount is deducted from Rs.12,65,558/-,
the assets come to Rs.8,91,912/-.
36. As regards to the expenditure, the Investigating
Officer has calculated and shown as under:
Expenditure of accused and family members
1 Stamp duty charges with respect to 22,480-00
2 Stamp duty charges with respect to 69,455-00
registration of site No.47
3 Stamp duty charges with respect to 1,995-00
registration of site No.308/47 gifted
4 Income tax of wife of accused 2,638-00
5 Property tax of House No.308/47 2,465-00
6 Water charges of house at 550-00
Gauribidnur
7 Water charges of house No.1157, 4th 5,362-00
Block, HBR layout, Bengaluru.
8 Electricity charges of house at 8,972-00
Bagepalli
9 Electricity charges of house at 10,794-00
Gauribidnur
10 Electricity charges of house No.1157, 12,273-00
HBR layout, Bengaluru.
11 Expenses incurred for Fiat car No.KA- 19,100-00
04-Z-4084
12 Mobile charges 1,417-00
13 Cable charges of house at HBR layout 1,950-00
of accused
15 LIC No.660631646 premium amount 3,92,625-00
of accused
of wife of accused
17 I.T. returns 2006-2007 of wife of 3,450-00
accused
18 Food expenses 3,36,834-00
19 Gas cylinder expenses 1,700-00
20 Education expenses 14,890-00
21 Rent for house at Gauribidnur 35,700-00
22 Rent for house No.1157, HBR layout, 92,000-00
Bengaluru.
23 GPF amount 2,10,390-00
24 Amount paid to Bangalore City Police 1,012-00
Housing co-operative Society Ltd.
25 Marriage expenses 1,00,000-00
26 Birthday expenses of children of 10,000-00
accused
27 KGID deductions 51,460-00
28 EGIS deductions 18,172-00
29 Professional Tax deductions 13,240-00
30 Details of transaction of accused in 1,50,000-00
Canara Bank, Kalyananagar,
Bengaluru
31 Details of transaction of wife of 9,07,230-00
accused in SBM, HBR layout branch
32 Details of transaction of wife of 3,25,000-00
accused in Canara Bank, Gauribidnur
33 Motor vehicle advance 125-00
34 Medical expenses of son of accused 6,209-00
35 Medical expenses of Hosmat Hospital 125-00
36 Expenses incurred for BDA application 500-00
37 Stamp paper expenses 20-00
38 Details of deposit in Post office, 30,000-00
Bangarpet
Total Rs.28,88,657-00
The accused had disputed the expenditures
mentioned at Sl.Nos.3, 7, 10, 11, 15, 21, 22, 25, 26, 30,
31 and 32.
37. As regards the expenditure at Sl. No.3 - the
stamp charges of Rs.1,995/- towards registration of the
gift deed, the accused has contended that the gift deed
was executed by his mother on 28.03.2006 as per Ex.P.56,
and his mother has paid the registration charges. The
investigation officer has not collected any material to show
that this amount was actually paid by the accused and not
by his mother. The mother of the accused is also not
examined before the Court to prove the said contention.
Even the prosecution has not examined any person from
Sub-Registrar office to show that this amount was paid by
the accused. Therefore, the amount of Rs.1,995/- shall be
excluded from the expenditure of the accused. Hence, the
trial Court has committed an error in calculating the same.
38. In respect of the expenditure at Sl. No.7 - water
charges of Rs.5,362/- for the house at HBR Layout, in this
regard, the investigation officer has examined the landlord
one Kariyanna as P.W.15. The said Kariyanna-P.W.15 has
deposed that the monthly rent was inclusive of the water
charges. Therefore, once the prosecution has examined
the witness and the said witness has deposed that the rent
was including the water charges, the question of
calculating the water charges at Rs.5,362/- in the account
of the accused is not correct. Therefore, the said amount
shall be excluded.
39. In respect of Sl.No.10 - electric charges of
Rs.12,273/-, the contention of the accused is that the
house was occupied by the accused and his brother, and
both of them shared the electricity charges. The
investigation officer has not collected any evidence to show
that the entire electricity charges have been paid by the
accused. On the other hand, the evidence of P.W.15
reveals that the house was let out to both the persons and
they have shared the rent. Therefore, the electricity
charges shall be calculated at 50% of Rs.12,273/- which
comes to Rs.6,136/-.
40. In respect of the expenses towards Fiat car (Sl.
No.11) calculated at Rs.19,100/-, it cannot be calculated in
the account of the accused as expenditure, as P.W.5 has
clearly stated that it is the car belongs to him and this
Court has already held that the said car belongs to P.W.5
but not to the accused. Therefore, the amount of
Rs.19,100/- shall be excluded. However, the accused
taken the car to Tirupati, he would have filled the fuel and
would have spent some amount. Hence, the fuel expenses
for using the car is calculated at Rs.2,000/-.
41. As regards to Sl.No.15 - LIC premium paid by
the accused at Rs.3,92,625/-, the learned counsel
contended that as per Ex.D.2-the premium receipt, the
installment paid by the accused was Rs.1,30,493/- on
11.10.2008, which is after the check period. One
installment equals to Rs.43,625/- and admittedly, the
installment paid on 11.10.2008 shall be excluded, which is
after the check period. On careful perusal of Ex.D.2 and
the statement issued by the LIC authorities, the
installment started from 22.10.2002 onwards till
15.11.2007 by excluding the installment of premium
11.10.2008, which comes only 6 yearly premium paid by
the accused which amounts to Rs.2,62,132/-, but not
Rs.3,05,757/- as stated by the investigation officer. The
investigation officer has also admitted the same in the
cross examination. The investigation officer calculated the
sum of Rs.3,92,625/-, which is not correct. The premium
itself paid was from 22.10.2002 onwards but not prior to
that. Therefore, the appellant's counsel has rightly
contended that Rs.1,30,493/- shall be deducted and the
calculation comes to Rs.2,62,132/-.
42. As regards to Sl. No.21 - the rent for house at
Gowribidanur, calculated at Rs.35,700/- per month, as per
the investigation officer, the amount was spent by the
accused towards the rent. But the prosecution has not
examined the landlady/landlord. As per the evidence of
the investigation officer, the accused was working in
Gowribidanaur from 16.06.2006 and transferred to
Bengaluru and took charge from 25.03.2008 and he has
vacated the house. As per the lease agreement,
Rs.25,000/- paid by the accused was received back by
him. The investigation officer has not collected any
document to show that the accused paid the rent of
Rs.35,700/-. Therefore, the amount of Rs.35,700/- per
month shall be excluded from the expenditure of the
accused.
43. As regards to Sl. No.22-the rented house at HBR
Layout, Rs.92,000/ has been calculated. As per the
evidence of the landlord (P.W.15) and as per the
contention of the accused, both the accused and his
brother were staying together in the house and shared the
rental expenditure. The investigation officer has not
collected any document or nothing is brought from the
evidence of P.W.15 by the prosecution to show that the
entire rent was paid by the accused. On the other hand,
the evidence of P.W.15 reveals that the accused paid only
50% of the rent and his brother shared another 50%.
Therefore, 50% of the rent of Rs.46,000/- per month shall
be calculated as expenditure.
44. As regards to the marriage expenditure, the
investigation officer has calculated Rs.1,00,000/-, but the
accused has stated that he has spent only Rs.1,000/- to be
paid to the priest as gift and he has not spent any amount.
There is no document collected by the investigation officer
to show that the accused has spent Rs.1,00,000/- in his
marriage. However, the accused might have spent some
amount towards his marriage by spending some
expenditure. Therefore, he could have spent at least
Rs.25,000/- in his marriage. Therefore, instead of
excluding Rs.1,00,000/-, this Court calculates Rs.25,000/-
as his marriage expenditure.
45. As regards to the birthday expenditure of
children, the accused said to have spent Rs.10,000/-, but
there is no evidence to show that he has spent
Rs.10,000/-. The accused might have spent Rs.100/- or
Rs.200/- towards the purchase of cake and there is no
document to show that the birthday was celebrated in any
choultry or any hotel to show that the amount of
Rs.10,000/- has been spent by him. The cake may be
provided by any of his family members or relatives.
Therefore, taking the sum of Rs.10,000/- is exorbitant.
However, the accused admitted that he has spent Rs.300/-
towards purchase of cake and the same shall be
acceptable. Therefore, the amount of Rs.9,700/- shall be
excluded.
46. As regards to another expenditure at Sl. No.30
i.e., withdrawal of the amount of Rs.1,50,000/- by the
accused from Canara Bank, the learned counsel for the
accused has contended that the accused had transacted by
withdrawing Rs.1,50,000/- towards his day-today
expenditure. Therefore, it cannot be considered as a
separate expenditure. There is logic in the argument
made by the learned counsel for the accused that the
accused might have withdrawn the money for the purpose
of spending towards payment of rent or electric charges or
other expenditures. Therefore, there is no question of
calculating the expenditure in respect of withdrawal from
the bank and also spending money towards expenditure.
It is nothing but duplication and double calculation towards
expenditure. Therefore, Rs.1,50,000/- withdrawn by the
accused from the bank cannot be considered as
expenditure.
47. In respect of Sl.No.31-transaction of his wife in
SBM bank for Rs.9,07,230/-, the learned counsel for the
accused has contended that the wife of the accused having
is an account in SBM, HBR Layout, as per Ex.P.29 and she
was the earning member doing the business and the same
was declared by her in the income tax returns. She has
transacted between 2004 and 2008 in respect of the
amount of Rs.9,07,230/- and the same was considered as
expenditure of the accused, but there is no record to show
that the investigation officer has made any enquiry
regarding the said transaction, neither examined the wife
of accused nor any other person to show that the wife of
the accused has not transacted in order to come to the
conclusion by the investigation officer that the amount of
Rs.9,07,230/- is the expenditure of the accused. As per
the admission by P.W.6-investigation officer in his
evidence, the sum of Rs.1,49,000/- has been transferred
to one Kodandaramaiah through cheque and the said
Kodandaramaiah, though given statement to show that he
had borrowed money for the purpose of education of his
daughter and later repaid it. But he was not examined
before the Court. Similarly, Rs.2 lakhs and Rs.1 lakh has
been transferred to Janardhan through cheque. Once
again, the investigation officer admitted in paragraph 112
of his deposition that Janardhan has given the statement
that he borrowed the sum for meeting the medical
expenses of his wife and later, repaid the same. In view of
the repayment of the said amounts, Rs.1,49,000 from
Kodandaramaiah and Rs.3 lakhs from Janardhan, totally
Rs.4,49,000/- shall have to be deducted from the
expenditure of the accused. The prosecution has not
examined those two persons before the Court. On the
other hand, the transaction reveals that the said amount
has been received back by the wife of the accused.
Therefore, the said amount cannot be added to the
expenditure account of the accused. Likewise, another
amount of Rs.3,25,000/-, a transaction by the wife of the
accused in Canara Bank, Gowribidanur Branch, was
considered as her income.
48. The learned counsel stated that there is no
evidence to show this amount has been calculated in the
expenditure of the accused. The investigation officer
neither collected any record nor evidence or attempt to
make any enquiry that this amount is to be calculated in
the expenditure of the accused. In the absence of any
documents or the evidence, the amount of Rs,3,25,000/-
shall have to be deducted from the expenditure of the
accused.
49. As regards to the income of the appellant, the
learned counsel for the appellant also contended that the
accused has declared the income of himself and also his
wife in his I.T. returns, but the investigation officer has
not calculated the rental income of Rs.1,37,500/-. It is
contended that the accused claimed the rental income of
Rs.72,000/- and refundable deposit of Rs.30,000/- from
one Balakrishna for the rent of the first floor at
Chikkaballapur, where the said Balakrishna filed an
affidavit and the rental affidavit is marked as Ex.P.30.
This rental income is not considered by the investigation
officer. The investigation officer has also not considered
the rental income of Rs.25,500/- and refundable deposit of
Rs.10,000/- from one Fayaz Ahmed in respect of letting
out of the 2nd floor house at Chikkaballapur. The rental
agreement is at Ex.P.30 and the affidavit is also available
on record. the said Balakrishna and Fayaz Ahmed were
interrogated by the investigation officer and they have
confirmed the payment of rents, but those two witnesses
have not been examined before the Court. However,
P.W.6-investigation officer has admitted at paragraph 112
of his deposition that the accused has declared the rental
income in his assets and liability statement. Therefore,
the rental income of Rs.97,500/- shall be considered as
income and the refundable deposit of Rs.40,000/- shall be
considered as income, and total would come to
Rs.1,37,500/-.
50. As regards to the another income left out by the
investigation officer in respect of redemption of National
Saving Certificate. The learned counsel for the accused
has contended that the accused has declared that he had
invested an amount of Rs.2 lakhs in the NSC from 2000-01
and was mentioned in the schedule at Ex.P.30.
Subsequently, the amount was withdrawn by premature
for Rs.2,94,300/-, but the Investigation Officer has neither
considered Rs.2 lakhs as expenditure nor Rs.2,94,300/- as
income. On considering the same in the evidence of
investigation officer as well as his report, the NSC was not
at all considered. The trial Court has also not considered
the investment of Rs.2 lakhs in the National Savings
Certificate and the receipt of Rs.2,94,300/-. The learned
counsel for respondent also fairly admits that, the said
amount was left out in the calculation. Out of the income
of Rs.2,94,300/-, if Rs.2 lakhs is deducted as expenditure,
the excess of Rs.94,300/- shall be considered as the
income of the accused, which is not considered by the
investigation officer or trial Court. Hence, Rs.94,300/-
shall be added into the income of the accused.
51. The learned counsel for the accused has also
contended that business income of the wife of the accused
has been considered as assets. In this regard, the learned
counsel for the accused has contended that the accused
filed Schedule IV and claimed the income of the business
of his wife and she has declared the income in the I.T.
returns for the years 2005-06 and 2006-07 and it is
available in Ex.P.30. The accused has declared the said
income and paid the taxes for Rs.1,48,600/- and
Rs.1,52,480/-, but the investigation officer has failed to
consider the same as income.
52. Another contention raised by the learned
counsel for the appellant-accused is that the trial Court has
not considered the evidence of the investigation officer
stating that the wife of the accused made declaration in
her income and she also filed swearing affidavit under
Ex.P.30. The learned counsel for the respondent-
complainant has contended that mere filing of the I.T.
returns itself is not a ground to show that the wife of
accused was having separate source of income and
therefore, the accused is required to satisfactorily explain
the same. In this regard, the learned counsel for the
respondent has relied upon the judgment of the Hon'ble
Supreme Court in the case of C.S.D. SWAMY Vs. STATE
reported in (1960)1 SCR 461, wherein the Hon'ble
Supreme Court has held as follows:
"4. It is true that Section 5(3) of the Act,
does not create a new offence but only lays down a
rule of evidence, enabling the court to raise a
presumption of guilt in certain circumstances -- a
rule which is a complete departure from the
established principle of criminal jurisprudence that
the burden always lies on the prosecution to prove
all the ingredients of the offence charged, and that
the burden never shifts on to the accused to
disprove the charge framed against him."
53. Therefore, except the evidence of the
investigation officer, there is no other material found or
collected by the investigation officer to show that the
amount belongs to accused. On the other hand, the very
document of the prosecution reveals that the wife of the
accused transacted with Kodandarama and Janardhana
through online by issuing cheques and later, she received
back and she was doing the business independently. Such
being the case, the trial Court has committed an error in
not accepting that the said amount belongs to the wife of
the accused. Therefore, the said amount of Rs.3,01,080/-
shall be taken into consideration as the income of the wife.
54. In view of the above consideration, the income,
expenditures and assets, be calculated as under:
As per trial
Particulars Court and Findings of this Court
Investigation
Officer
Assets during 12,65,558-00 Assets deducted
the check towards :
period
Cost of construction : 1,63,646
Fiat car : 2,10,000
-----------
3,73,646
-----------
Total assets : 8,91,912
Out of Rs.12,65,558/- calculated by the trial Court,
the cost of construction calculated by this Court at
Rs.1,63,646/- and Rs.2,10,000/- towards Fiat car is
deducted, it comes to Rs.8,91,912/-, which is the total
value of assets.
As per trial
Particulars Court and Findings of this Court
Investigation
Officer
Expenditure 28,88,657=00 Excluded Sl. No. 3: 1,995
during the -"- 7: 5,362
check period -"- 10: 6,136
-"- 11: 7,100
-"- 15: 1,30,000
-"- 21: 35,700
-"- 22: 46,000
-"- 25: 75,000
-"- 26: 9,700
-"- 30: 1,50,000
-"- 31: 9,07,230
-"- 32: 3,25,000
-------------------------
16,99,223/-
-------------------------
Total expenditure : 11,89,434/-
The investigation officer has calculated the
expenditure of Rs.28,88,657/-, out of which, the
expenditure calculated by this Court at Rs.16,99,223/- is
deducted, the actual expenditure comes to Rs.11,89,434/-.
If the assets of Rs.8,91,912/- and the expenditure of
Rs.11,89,434/- is added, it comes to Rs.20,81,346/-
towards total assets and expenditure, but not
Rs.49,34,984.63 ps. as calculated by the investigation
officer and the trial Court.
As per trial
Particulars Court and Findings of this Court
Investigation
Officer
Income during 26,02,382=00 Income included :
the check
period and left Rental expenses : 1,37,500
out income NSC Income : 94,300
Income of wife : 3,01,080
-----------
5,32,880
-----------
(Rs.5,32,880/- to be included from
Rs.26,02,382/-)
Total Income is Rs.31,35,262/-
The income calculated by the investigation officer
and the trial Court is Rs.26,02,382/-. This Court has
included the income at Rs.5,32,880/-. If the income
calculated by the trial Court at Rs.26,02,382/- is added to
the income of Rs.5,32,880/-, then the total income comes
to Rs.31,35,262/-.
55. The findings and calculation arrived by this
Court is as under:
Assets 8,91,912
Expenditure 11,89,434
Assets + Expenditure 20,81,346
Total income 31,35,262
D.A. -NIL-
If the total assets and expenditure of Rs.20,81,346/-
is deducted from the income of Rs.31,35,262/-, it comes
to Rs.10,53,916/-, which reveals that Rs.10,53,916/- is
more income than the assets and expenditures. Therefore,
there is no disproportionate property or assets in the
hands of the appellant-accused as on the date of raid or
check period.
56. Therefore, the aforesaid statement reveals that
there is excess income of more than Rs.10 lakhs than the
assets of the accused. Therefore, the contention of the
prosecution that there is disproportionate assets in the
hands of the accused, is not correct. Therefore, the
findings of the trial Court is not correct and trial Court
without any appreciation of evidence, has blindly accepted
the report of the investigation officer and passed the
judgment.
57. The learned counsel for the appellant-accused
has contended that the initial burden of proof is on the
prosecution to prove the foundation of fact. Thereafter,
the accused is required to rebut the presumption available
in favour of the prosecution. Here, in this case, the
prosecution has failed to discharge the initial burden that
the accused was amassed the wealth having
disproportionate assets than the known source of income.
The learned counsel for the appellant-accused has relied
upon the judgment of the Hon'ble Supreme Court in the
case of STATE OF MAHARASHTRA Vs. WASUDEO RAM
CHANDRA KAIDALWAR reported in (1981)3 SCC 199
wherein, the Hon'ble Supreme Court, at paragraph 12 of
the said judgment, has held as under:
"12. The terms and expressions appearing in
Section 5(1)(e) of the Act are the same as those
used in the old Section 5(3). Although the two
provisions operate in two different fields, the
meaning to be assigned to them must be the same.
The expression "known sources of incomes" means
"sources known to the prosecution". So also, the
same meaning must be given to the words "for
which the public servant cannot satisfactorily
account" occurring in Section 5(1)(e). No doubt,
Section 4(1) provides for presumption of guilt in
cases falling under Section 5(1)(a) and (b), but
there was, in our opinion, no need to mention
Section 5(1)(e) therein. For, the reason is obvious.
The provision contained in Section 5(1)(e) of the
Act is a self-contained provision. The first part of
the section casts a burden on the prosecution and
the second on the accused. When Section 5(1)(e)
uses the words "for which the public servant cannot
satisfactorily account", it is implied that the burden
is on such public servant to account for the sources
for the acquisition of disproportionate assets. The
High Court, therefore, was in error in holding that a
public servant charged for having disproportionate
assets in his possession for which he cannot
satisfactorily account, cannot be convicted of an
offence under Section 5(2) read with Section
5(1)(e) of the Act unless the prosecution disproves
all possible sources of income."
58. The learned counsel for the appellant-accused
has also relied upon the judgment of the Hon'ble Supreme
Court in the case of VASANT RAO GUHE Vs. STATE OF
MADHYA PRADESH reported in (2017)14 SCC 442.
The Hon'ble Supreme Court at paragraph 21 of the said
judgment has held as under:
"21. From the design and purport of clause (e)
of sub-section (1) to Section 13, it is apparent that
the primary burden to bring home the charge of
criminal misconduct thereunder would be
indubitably on the prosecution to establish beyond
reasonable doubt that the public servant either
himself or through anyone else had at any time
during the period of his office been in possession of
pecuniary resources or property disproportionate to
his known sources of income and it is only on the
discharge of such burden by the prosecution, if he
fails to satisfactorily account for the same, he
would be in law held guilty of such offence. In
other words, in case the prosecution fails to prove
that the public servant either by himself or through
anyone else had at any time during the period of
his office been in possession of pecuniary resources
or property disproportionate to his known sources
of income, he would not be required in law to offer
any explanation to satisfactorily account therefor. A
public servant facing such charge, cannot be
comprehended to furnish any explanation in the
absence of the proof of the allegation of being in
possession by himself or through someone else, of
pecuniary resources or property disproportionate to
his known sources of income. As has been held by
this Court amongst others in State of
Maharashtra v. Dnyaneshwar Laxman Rao
Wankhede even in a case when the burden is on
the accused, the prosecution must first prove the
foundational facts. Incidentally, this decision was
rendered in a case involving a charge under
Sections 7, 13 and 20 of the Act."
59. Apart from that, the learned counsel for the
appellant-accused has also contended that in the
departmental enquiry made by the police department, they
exonerated the accused of the charges and therefore, as
per the enquiry report dated 17.01.2014, the charges were
not proved. The degree of proof in the enquiry was based
upon the preponderance of probabilities, whereas the
degree of proof in the criminal case is beyond reasonable
doubt and therefore, the appellant-accused deserves to be
acquitted. The learned counsel for the appellant-accused
further relied upon the judgment of the Hon'ble Supreme
Court in the case of ASHOO SURENDRANATH TEWARI
Vs. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI
AND ANOTHER reported in (2020)9 SCC 636, wherein
the Hon'ble Supreme Court has taken the view by following
the judgment of the Hon'ble Supreme Court in the case of
RADHESHYAM KEJRIWAL Vs. STATE OF W.B. reported
in 2011 (3) SCC 581. The Hon'ble Supreme Court at
paragraph 12 and 13 of the judgment in Ashoo
Surendranath Tewari's case (supra), has held as under:
12. After referring to various judgments, this Court
then culled out the ratio of those decisions in para 38
as follows: (Radheshyam Kejriwal case [Radheshyam
Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011)
2 SCC (Cri) 721] , SCC p. 598)
"38. The ratio which can be culled out from
these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal
prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is
not necessary before initiating criminal
prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each
other;
(iv) The finding against the person facing
prosecution in the adjudication proceedings is
not binding on the proceeding for criminal
prosecution;
(v) Adjudication proceedings by the
Enforcement Directorate is not prosecution by a
competent court of law to attract the provisions
of Article 20(2) of the Constitution or Section
300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication
proceedings in favour of the person facing trial
for identical violation will depend upon the
nature of finding. If the exoneration in
adjudication proceedings is on technical ground
and not on merit, prosecution may continue;
and
(vii) In case of exoneration, however, on
merits where the allegation is found to be not
sustainable at all and the person held innocent,
criminal prosecution on the same set of facts
and circumstances cannot be allowed to
continue, the underlying principle being the
higher standard of proof in criminal cases."
13. It finally concluded: (Radheshyam Kejriwal
case [Radheshyam Kejriwal v. State of W.B., (2011) 3
SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para
39)
"39. In our opinion, therefore, the
yardstick would be to judge as to whether the
allegation in the adjudication proceedings as
well as the proceeding for prosecution is
identical and the exoneration of the person
concerned in the adjudication proceedings is on
merits. In case it is found on merit that there is
no contravention of the provisions of the Act in
the adjudication proceedings, the trial of the
person concerned shall be an abuse of the
process of the court."
60. The Hon'ble Supreme Court has acquitted the
appellant in the Ashoo Surendranath Tewari's case (supra)
and the said case squarely applicable to the case on hand,
where the appellant is already exonerated from the
charges and therefore, he is entitled for acquittal. Even
otherwise, the prosecution has failed to prove the case
with documents and necessary evidence, that the accused
is having Disproportionate Assets, rather, this Court found
that the accused is having the income which is more than
assets and expenditures. Therefore, the appellant is
entitled for acquittal.
61. Accordingly, I pass the following order:
(i) The appeal is allowed.
(ii) The judgment of the LXXVI Additional City Civil
and Sessions Judge and Special Judge, City Civil Court,
Bengaluru (CCH-77), in Spl. C. No.146/2010, dated
18.02.2019, is set aside. The appellant is acquitted of
charges punishable under Section 13(1)(e) read with
Section 13(2) of P.C. Act.
(iii) The bail bond of the appellant-accused stands
cancelled.
(iv) The fine amount, if any, collected or deposited
shall be refunded to the appellant-accused with due
identification.
Sd/-
JUDGE
GBB/CS
