Karnataka High Court
Sri. N Narasimha Raju vs The State Of Karnataka on 10 October, 2023
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1957/2022
BETWEEN :
--------------
Sri N Narasimha Raju
Son of late Sri M.N.Narayanappa
Aged about 57 years
Executive Engineer
Residing at Maddayya Nivasa
Maddayya Road
Devanahalli Town
Bengaluru Rural District
Bangalore - 562 110.
... APPELLANT
(By Sri S.V.Giridhar, Advocate)
AND :
-------
The State of Karnataka
Represented by the
Deputy Superintendent of Police
Karnataka Lokayukta
Mangaluru,
Dakshina Kannada District - 575 001.
... RESPONDENT
(By Sri Ashwin S Halady, Advocate)
2
This Criminal Appeal is filed under Section 374(2)
praying to set aside the judgment impugned dated 10.11.2022
passed by III Additional District and Sessions Judge and
Special Court for Trial of Cases relating to the Prevention of
Corruption Act, Dakshina Kannada, Mangaluru in Special Case
No.107/2014 convicting the appellant - accused for the
offence punishable under Section 13(1)(e) read with Section
13(2) of Prevention of Corruption Act, 1988.
This Criminal Appeal having been heard and reserved for
judgment this day, SHIVASHANKAR AMARANNAVAR J,
delivered the following;
JUDGMENT
This appeal is filed against the judgment of conviction
and order of sentence dated 10.11.2022 passed in Spl.C.
No. 107/2014 by the III Additional District and Sessions
Judge and Special Court for trial of cases relating to
Prevention of Corruption Act, Dakshina Kannada,
Mangaluru, convicting the appellant - accused for the
offence under Section 13(1)(e) read with Section 13(2) of
the Prevention of Corruption Act, 1988 sentencing to
undergo simple imprisonment for a period of for a period of
three years six months and to pay fine of Rs.25,00,000/-
(Rupees Twenty Five Lakhs only) and in default to undergo
further simple imprisonment for a period of six months.
2. Factual matrix of the case is that the Police
Inspector, Karnataka Lokayuktha, Mangaluru registered
case in Crime No. 9/2009 for offence under Section
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as the P.C.
Act) against the appellant - accused and two other accused
on 08.09.2009. P.W.7 - Police Inspector searched the
house of the appellant - accused bearing flat No. 104 in
Deepa Apartment, Mangaluru and collected many
documents and available records. Thereafter, P.W.1
received information that the appellant - accused was
appointed as Assistant Executive Engineer (AEE) in Public
Works Department, State of Karnataka, on 03.07.1995 and
later on he was promoted as Executive Engineer (EE). He
worked in Panchayath Raj Department at Mangaluru and
transferred to Tumakuru division. Therefore, he was a
public servant from 03.07.1995 to 08.09.2009. Appellant -
accused acquired assets disproportionate to his known
source of income. Therefore, he prepared source report on
19.03.2010 and sent to the Superintendent of Police,
Karnataka Lokayuktha, Mangaluru. The Superintendent of
Police, Karnataka Lokayuktha, Mangaluru passed order
under Section 17 of the PC Act and authorized P.W.1 -
Deputy Superintendent of Police, Mangaluru, to investigate
the matter. Accordingly, P.W.1 on 24.03.2010 registered
FIR against the appellant - accused for offence under
Section 13(1)(e) read with Section 13(2) of the PC Act in
crime No. 5/2010 and launched investigation. P.W.1
collected search panchanama in crime No. 9/2009 and
other materials and partly investigated the matter. In view
of transfer of P.W.1, P.W.10 as per authorization of the
Superintendent of Police conducted further investigation.
P.W.10 during his investigation found that the appellant -
accused worked as Assistant Executive Engineer, then he
was promoted as Executive Engineer in P.W.D. from
03.07.1995 to 08.09.2009 (check period). He further found
that the appellant - accused during the check period
received income of Rs.63,25,565.95 (rounded off to
Rs.63,25,565/-) from his known source. He further found
that the appellant - accused was possessing assets worth
Rs.48,18,161.73 (rounded off to Rs.48,18,161/-) and the
expenses of the appellant - accused during the check
period was Rs.32,16,491.51/- (rounded off to
Rs.32,16,491/-). There is disproportionate assets of
Rs.17,09,087.29/- (rounded off to Rs.17,09.087/-) found in
the possession of appellant - accused. Therefore, P.W.10 -
Investigating Officer alleged that the appellant - accused
being public servant is in possession or has at any time
during the period of his office, been in possession for which
the appellant - accused cannot satisfactory accounted, of
pecuniary resources or proportion disproportionate to his
known source of income and therefore, the appellant -
accused has committed criminal misconduct and thereby
committed offence punishable under Section 13(1)(e) read
with Section 13(2) of the PC Act. Charge sheet has been
filed after getting the previous sanction under Section 19 of
the PC Act. The Special Court framed charges against the
appellant - accused for offence punishable under Section1
3(1)(e) read with Section 13(2) of the PC Act.
3. The prosecution examined 14 witnesses as P.W.1 to
P.W.14 and got marked documents Ex.P.1 to Ex.P.95. The
appellant - accused was examined under Section 313 of
Cr.P.C. The appellant - accused examined himself as D.W.1
and examined two more witnesses as D.W.2 and D.W.3 and
got marked documents at Ex.D.1 to Ex.D.44 in support of
his defence. After hearing arguments on both sides and on
perusal of the written arguments, the Special Court
formulated points for consideration and convicted the
appellant - accused for the offence under Section 13(1)(e)
read with Section 13(2) of the PC Act. Said judgment of
conviction and order of sentence has been challenged in
this appeal.
4. Heard arguments of learned counsel appearing for
appellant - accused and learned Spl.P.P. appearing for
respondent.
5. Learned counsel for appellant - accused would
contend that the appellant - accused has purchased item
No. 3 site situated in Vijayanagar, Bengaluru from Bapuji
House Building Cooperative Society under sale deed -
Ex.P.6 for consideration of Rs.3,70,000 and he had paid
advance of Rs.50,000/- on 30.01.1993 under receipt -
Ex.D.15 dated 30.01.1993 and as on that day he was not in
service and he has been appointed as Assistant Executive
Engineer on 03.07.1995. The appellant - accused was
under training between 03.07.1995 to 02.07.1997 and he
has received stipend of Rs.1,44,190/- and after training
from 02.07.1997 to 17.11.1997 he was waiting for posting.
The appellant - accused had paid Rs.1,00,000/- on
15.11.1996, Rs.50,000/- on 18.03.1997, Rs.1,00,000/- on
21.02.1997 and Rs.60,000/- on 25.04.1998 (Ex.D.5
consisting of five receipts). The appellant - accused was not
having posting till 17.11.1997. Therefore, the payments
made by him prior to that date has to be excluded.
Therefore, in total sum of Rs.3,70,000/-, Rs.3,10,000/- has
to be excluded and only Rs.60,000/- which is paid on
25.04.1998 after his posting has to be taken into
consideration. The appellant - accused has declared cash of
Rs.50,000/- in his annual property returns and the
Investigating Officer has not taken into consideration said
cash in hand by this appellant - accused as on the date of
entry into service.
6. He further contended that as per Rule 23 of the
Karnataka Civil Services Conduct Rules, 1966, there is no
need to declare the house hold articles and therefore, value
of clothes in item No. 33 and house hold articles in item No.
35 are to be excluded. The appellant - accused in his
annual property returns submitted immediately after
appointment has declared the furniture of value of
Rs.45,000/- (Ex.P.27) and the marriage of the appellant -
accused has taken place on 09.11.1997 and as a customary
his wife brought furniture and other articles and his wife
has filed declaration for the period from 01.04.1997 to
31.03.1998 (Ex.P.94) wherein it is declared that she
brought furniture of value of Rs.15,000/-. Therefore, the
appellant - accused had furniture of value of Rs.45,000/- as
per his first annual property returns and his wife declared
furniture of value of Rs.15,000/- and therefore, the total
furniture in his house was worth Rs.60,000/- and therefore,
the furniture value of Rs.52,300/- shown in item No. 32 is
to be excluded. The valuation of item Nos. 31 to 35 are
given by P.W.2 who is a witness to mahazar and who was
working as a Typist in Commercial Tax Office and P.W.7
who is the Police Inspector who conducted search and they
are not experts, but, they have given valuation and the trial
Court has not accepted the said valuation and reduced the
same by 30%. The trial Court ought to have taken only
value of item Nos. 31 and 34 and given deduction at the
rate of 30% and ought to have excluded item Nos. 32, 33
and 35. The trial Court has to take the depreciated value of
the articles mentioned in item Nos. 31 and 34.
7. He would contend that the visible and non-variable
expenses arrived at Rs.6,57,917/- as per Ex.P.69 has not
been proved as its author is not examined as he is reported
dead and no other competent person has been examined to
prove the contents of Ex.P.69. The trial Court erred in
accepting Ex.P.69 which has been marked through P.W.10
- Investigating Officer stating that he knew the signature of
the author of Ex.P.69 as they both worked in the same
office placing reliance on the provisions of Section 67 of the
Evidence Act. Even though signature stands proved by the
evidence of P.W.10 but, the contents of Ex.P.69 are not
proved by admissible evidence. The appellant - accused has
made statement regarding what are visible and non-
variable expenses and in the absence of proof of Ex.P.69
the trial Court ought to have taken the said value as stated
by the appellant - accused. The expenses at item Nos. 14 to
21 are separately taken which includes the school fees, gas
cylinder expenses, fuel charges which were already included
in Ex.P.69. He further contends that car has been
purchased in the name of his wife on 06.03.2004 and it is
second purchase and as per the B extract original purchase
of the said car by the original owner was on 09.03.2001.
What was the reading of the KMs of the said car as on the
date of purchase, i.e., 06.03.2004 is not recorded and the
Investigating Officer has taken the KMs reading as 21300
and there is no basis for the same. P.W.13 - ARTO gave
report as per Ex.P.67 taking into consideration 21300 kms
furnished by the Investigating Officer and by dividing the
same by 67 months and taking into consideration the rate
of petrol at the relevant month. Therefore, said report -
Ex.P.67 issued by P.W.13 cannot be relied on as there is no
basis for coming to the conclusion that car has been used
by the appellant - accused for traveling 21300 KMs.
8. He further contends that the expenditure at item
No. 43 ought not to have been included in the maintenance
amount since Ex.P.71 - lease agreement specifically
contains a term that `rent includes maintenance'. The trial
Court has ignored the same. The trial Court placed much
reliance on Ex.P.17 - letter issued by the landlady - P.W.12
inspite of her admission in the cross-examination that rent
includes maintenance. Therefore, the trial Court erred in
taking into consideration Rs.38,000/- as expenditure which
is said to have been paid towards maintenance.
9. He contends that item No. 3 of the income from
salary for the period between 18.11.1997 to 10.06.1998 is
taken at Rs.52,984/- as per Ex.P.13. The appellant -
accused got annual increment arrears of Rs.1,538/- for the
period between 18.04.1997 to 15.06.1998 and the same
has been mentioned in last pay certificate - Ex.D.16 and
the trial Court has erred in not taking into consideration the
said document stating that the original of last pay
certificate will not be issued to the employee.
10. Learned counsel for the appellant - accused
further contended that in item No. 6 of income from salary
for the period from 16.10.2000 to 22.10.2002 a sum of
Rs.1,82,002/- is taken as per Ex.P.31. At the relevant time
the appellant - accused was working in SCST Corporation.
The appellant - accused has also produced the salary
details obtained by him from the SCST Corporation at
Ex.D.7 and it discloses the total salary in a sum of
Rs.1,86,882/- and the income taken by the Investigating
Officer is short by Rs.4,880/-. Ex.D.7 discloses that the
appellant - accused got arrears of Rs.14,938/- regarding
the period between 16.10.2000 to 31.10.2002 but the trial
Court has wrongly considered the said amount as pay for
January, 2003. The appellant - accused was not working in
the said SCST Corporation during January, 2003. Salary
which he received during January 2003 is shown in item No.
7 of his income. The trial Court did not rely on Ex.D.7 on
the ground that its author is not examined.
11. The appellant - accused has received rental
income from poultry between 07.02.2002 to 13.02.2004 in
a sum of Rs.32,950/- as disclosed in item No. 12 of his
income. One Kiran was a tenant of the said poultry farm
and he has been examined by the appellant - accused as
D.W.3. Said Kiran - D.W.3 had given his letter to the
Investigating Officer as per Ex.P.38 wherein there is specific
mention that he paid rent of Rs.7,765/- to the wife of the
appellant - accused. In the said statement - Ex.P.38 Kiran
has stated that he has produced balance sheet, profit and
loss account, bank statement, I.T. acknowledgment and
electricity bill but the Investigating Officer has not produced
the same. The lease deed - Ex.P.94 also shows that rent is
Rs.7,765/- per month. D.W.3 in his evidence has also
stated that he had paid rent of Rs.7,765/- per month. The
Trial Court has erred in not taking into consideration said
income of Rs.2,32,950/-.
12. He contends that the appellant - accused and his
brother - Sri. Satish (D.W.2) sold item Nos. 5 and 6
property under sale deed Ex.P.35 dated 09.06.2006 for sale
consideration of Rs.4,10,000/-. It is the contention of the
appellant - accused that he has received entire sale
consideration of Rs.4,10,000/- and he has shown the same
in his IT return- Ex.D.42 and the other executant, namely,
Sri. Satish (D.W.2) did not show the said income from sale
proceeds in his IT returns - Ex.D.70. He contends that the
appellant - accused has also shown that he sold the said
property in his annual property returns as on 31.03.2008
that he sold for Rs.4,10,000/-. The trial Court hypothetically
has taken a view that the appellant - accused has shown
the entire sale consideration as his income in his IT returns
in collusion with his brother D.W.2 - Sri. Satish so as to
show that he has funds to acquire another property and the
said reasoning of the trial Court has no basis/evidence.
13. Learned counsel has argued that income taken in
item No. 10 is from agriculture and horticulture and
properties are the self-acquired properties of the appellant
- accused and they are based on the total realistic income
which is half of the total net income as noted in Ex.P.58,
Ex.P.59 and Ex.P.42. He argued that net income is income
after deduction of all expenses and taking half of the net
income is not proper. On perusal of Annexure-1 of Ex.P.42
it is clear that this total net income is after deduction of all
expenses.
14. Learned counsel has referred to the definition of
the expressions `deduction', `gross income', `net income'
and `net profits' by referring to Blacks' Law Dictionary. The
term TRI i.e., total realistic income is not defined anywhere.
Even under the Income Tax Act net income is `income after
deduction of expenses'. While considering the income from
agricultural land of wife of appellant - accused, as noted in
Ex.P.46, there is no total net income or total realistic
income and entire net income is taken into consideration.
P.W.6 the author of Ex.P.46 and Ex.P.59 has not stated why
this TRI which is half of TNI is taken into consideration.
Said TRI which is based on circular dated 09.10.2009 is
after the date of raid and therefore it is not applicable.
15. Father of the appellant - accused had a wife by
name Smt. Sakamma and through her he had three sons
and one daughter. After death of Smt. Sakamma father of
appellant - accused married Smt. Narayanamma and
through her he had four sons and four daughters. Three
sons of Smt. Sakamma have got separated by executing
registered release deed dated 11.08.1976 and the daughter
of Smt. Sakamma is not a coparcener. Second son of Smt.
Narayanamma has left the joint family by executing release
deed Ex.D.6 on 22.04.1991. There are only three sons who
are in coparcenary and therefore income is to be divided by
three. There was a partition between three remaining sons
of Smt. Narayanamma on 06.09.2004 - Ex.P.65(a) and
daughters of Smt. Narayanamma have signed as
consenting witnesses. Therefore, income from agricultural
lands has to be shared between three sons of Smt.
Narayanamma including the appellant - accused. Even the
said income from agricultural lands has been taken as half
of the total net income and the trial Court has erred in
dividing the said income among nine members of the family
prior to the death of the mother and has divided the income
by eight after the death of mother.
16. Learned counsel further contended that wife of the
appellant - accused is an engineering graduate and she was
taking tuition classes for school, college and engineering
students and had claimed income of Rs.15,25,689.75.
Income of the wife has been reflected in her income tax
returns - Ex.D.23 to Ex.D.31. The trial Court erred in not
taking into consideration the said income of the appellant -
accused only on the ground that only one computer was
found at the time of raid. The trial Court erred in observing
that no document is maintained with regard to income of
his wife through said tuitions and no student is examined.
He further contended that the appellant - accused had
maintained nursery in the land situated at Hiriyur and
claimed income of Rs.5,13,041/- which is at item No. 31.
Said income is shown in the income tax returns of the
appellant - accused as `individual' in Ex.D.36 and as Hindu
Undivided Family in Ex.D.42 to Ex.D.44 and Ex.P.94. Even
in his APR the appellant - accused has shown his income
separately. The trial Court has not taken into consideration
said income from nursery only on the ground that no
document is maintained with regard to sale of
saplings/plants in the said nursery. He further argued that
judgment of the trial Court is perverse and prayed for
setting aside the judgment and acquitting of the appellant -
accused of the parties.
17. Learned Spl.P.P. appearing for the respondent
submits that the trial Court in paragraph No. 96 placed
reliance on the decision of the Hon'ble Apex Court reported
in 2017(0) Supreme (SC) 116 and held that `known
source of income' must have source known to the
prosecution on a thorough investigation of the case and it
cannot be source known to the appellant - accused and the
appellant - accused, to prove the other source of income
which have not been taken into account are brought into
evidence by the prosecution. He further argued that there is
a burden on the appellant - accused to prove that
horticulture and agricultural income received by him during
the check period through cogent evidence. He contended
that the appellant - accused has not provided the exact
income received by him from horticulture and he has not
adduced any expert evidence and therefore the Court
cannot go beyond the income shown in Ex.P.58 and Ex.P.59
as observed by the trial Court. The appellant - accused has
not asked P.W.6 the author of Ex.P.58 and Ex.P.59 with
regard to what is TRI when P.W.6 has stated that TRI is half
of TNI. The trial Court has rightly held that the total net
income includes cost of cultivation and therefore cost of
cultivation to the extent of 50% would be deducted from
TNI and the total realistic income will be ascertained and
therefore the TRI is the real income received by the owner.
The appellant - accused has not examined any expert in
respect of horticultural income stated in Ex.P.58 and
Ex.P.59 and not examined any witness to explain what is
TRI and TNI shown in Ex.P.58 and Ex.P.59. Therefore, the
reasoning of the trial Court with regard to item No. 10 of
income is proper.
18. He contended that the appellant - accused who
has been examined as P.W.1, in his cross-examination, has
admitted that till death of his mother Smt. Narayanamma,
himself, his brothers by name Sri. Satish and Sri. Narayana
Swamy, his mother and his sister - Smt. Varalakshmi were
receiving the income from joint properties shown in
Ex.P.59(a) and therefore, the trial Court has rightly taken
the income of the appellant - accused from joint family
properties is to the extent of 1/5th share only. Therefore,
there are no grounds for setting the findings of the trial
Court with regard to income in item No. 10, namely
horticultural income of Rs.10,21,365/-, agricultural income
of Rs.48,645/- and agricultural income of joint family of
Rs.1,69,465/- and in all the total income received by the
appellant - accused from the landed properties is
Rs.12,39,475/-.
19. The trial Court did not take into consideration the
income of the wife of appellant - accused stated to have
received by conducting computer classes from 1997-98 to
2009-10 as stated in item No. 30 of the income on the
ground that wife who is the best witness has not been
examined; no infrastructure was found in the house of
appellant - accused at the time of raid; students said to
have received tuition from the wife of appellant - accused
have not been examined and the trial Court has not
committed any error in holding so.
20. The appellant - accused claimed income from
nursery business in a sum of Rs.5,13,041/- and the trial
Court did not consider the said income on the ground that
the appellant - accused who was a public servant is
regulated by the Karnataka Civil Service (Conduct) Rules,
1966 and as per the mandate of Rule 16 the Government
servant is totally barred from carrying on any trade or
business during service and he has not maintained any
accounts of nursery. On these grounds he submitted that
the trial Court considering all these materials on record has
rightly convicted the appellant - accused and there are no
grounds to interfere with the findings of the trial Court.
21. Learned Senior counsel appearing for the
appellant - accused in reply would submit that the trial
Court has accepted the evidence of P.W.11 and report in
Ex.P.48 regarding agricultural income said to have been
received by the appellant - accused in a sum of
Rs.48,645/- wherein there is no deduction of the income
and the trial Court has not applied the said yardstick to the
other agricultural income. In Ex.P.42 net income is derived
after deduction of the expenses and the said net income is
taken as the total net income (TNI) and it is deducted by
50% stating that total realistic income is half of total net
income and in that regard reasoning of the trial Court in
paragraph No. 104 of the impugned judgment is that the
total net income includes cost of cultivation and therefore
50% of cost of cultivation will be deducted from the total
net income and total realistic income will be ascertained
and total realistic income is real income received by the
owner. The trial Court in paragraph No. 103 of the
impugned judgment has observed that the prosecution and
the defence have not asked P.W.6 why TNI has been
divided into two parts while ascertaining TRI and inspite of
that in the absence of any material regarding why TRI is
half of TNI the trial Court has presumed and assumed that
50% would be deducted towards cost of cultivation even
though the TNI is calculated after deducting cost of
cultivation as noted in Ex.P.42. The trial Court has accepted
the income of the wife of the appellant - accused from land
situated at Chintamani whish is shown in Ex.P.46 prepared
by Senior Assistant, Horticultural Department, Chintamani
and in that there is nothing like TRI and TNI and they are
not applied. He contended that the marriage of the sister of
appellant - accused by name Smt. Varalakshmi was
conducted on 29.04.1996 and what P.W.1 - appellant -
accused admitted in his cross-examination is that till her
marriage he voluntarily shared her portion of income and
that does not mean that she is having 1/5th share/right in
the suit property/income from the property. He contended
that as per the provisions of Section 120 of Evidence Act in
criminal proceedings husband is competent to represent the
wife. Therefore, the observation of the trial Court that the
wife of appellant - accused is not examined to prove the
income of the wife from tuitions is not proper. He contends
that as per Section 2 of the Karnataka Land Reforms Act
the definition of agriculture includes horticulture and as per
Section 81 of the Karnataka Land Reforms Act the
explanation provided for the said section provides that
agricultural purposes includes sericulture, fishery, poultry
etc., and therefore, income from nursery is also agricultural
income and therefore, nursery does not amount to any
business which is prohibited under Rule 16 of the
Karnataka Civil Service (Conduct) Rules. The notification
relied upon by the horticulture department dated
09.10.2009 has been applied to arrive at total realistic
income and the said notification is after the check period
and there is no material to show that the said notification is
to be applied retrospectively.
22. Upon hearing arguments advanced by both the
learned counsels, the grounds raised and on perusal of the
impugned judgment the following point arise for my
consideration.
"Whether the trial Court erred in convicting
the appellant - accused for offence under
Section 13(1)(e) read with Section 13(2) of PC
Act?"
23. The Investigating Officer - P.W.10 in the charge
sheet has shown that thirty five assets were held by the
appellant - accused during the check period in Sl.Nos. 1 to
35. The table of assets prepared by the Investigating
Officer - P.W.10 are as under:
ASSESTS
Sl. Nature of asset Value of asset
No.
1. Consideration paid for purchase Rs. 8,00,000.00
of site No.121/Khataha
No.257/178/121 situated at
Abbachikkanahalli in the name of
wife of the accused.
2. Consideration paid for purchase Rs. 13,28,000.00
of site No.15 & 16/Khataha
No.48/2/68/1 situated at
Bhatrahalli in the name of wife
of the accused.
3. Consideration paid for purchase Rs. 3,70,000.00
of site No.125/ situated at
Kempapura Agrahara, Chandra
Layout, Bengaluru in his own
name.
4. Cost of construction of house Rs. -
situated at Devanahalli.
5. Consideration paid for purchase Rs. 76,500.00
of land Sy.No.67/2 measuring
2.13 acres situated at
Hunasehalli Village in the name
of mother of the accused.
6. Consideration paid for purchase Rs. 73,500.00
of land bearing Sy.No.67/5
measuring 1.39 acres situated at
Hunasehalli Village in the name
of mother of the accused.
7. Consideration paid for purchase Rs. 4,80,000.00
of site in Khatha
No.516/21/19/168 situated at
Gollabana Halli in his own the
name.
8. Consideration paid for purchase Rs. 48,000.00
of Land Sy.No.10/1E measuring
1 acre situated at
Javanagondahalli in his own
name.
9. Consideration paid for purchase Rs. 44,500.00
of Land Sy.No.10/1C1 measuring
37 guntas situated at
Javanagondahalli in his own
name.
10. Consideration paid for purchase Rs. 46,500.00
of Land Sy.No.10/1F measuring
1.20 acres situated at
Javanagondahalli in his own
name.
11. Consideration paid for purchase Rs. 56,000.00
of Land Sy.No.10/1D measuring
1.32 acres situated at
Javanagondahalli in his own
name.
12. Consideration paid for purchase Rs. 2,73,000.00
of Land Sy.No.35 measuring
5.17 ¾ guntas situated at
Guttahalli village in the name of
his wife.
13. Bank balance of accused in SBI, Rs. 4,06,587.00
Mangaluru.
14. Bank balance of the wife of the Rs. 2,933.00
accused in Canara Bank,
Devanahalli.
15. Bank balance of the wife of the Rs. 71,333.00
accused in Corporation Bank,
Mangaluru.
16. Bank balance of accused in SBM, Rs. 2,872.95
Bengaluru
17. Bank balance of the wife of the Rs. 9,190.55
accused in Corporation Bank,
Vijayanagara, Bengaluru.
18. Bank balance of the wife of the Rs. 63,719.24.00
accused in ICICI Bank,
Mangaluru.
19. NSC purchased by the accused. Rs. 2,500.00
20. Bond value issued by HDFC Rs. 15,000.00
Mutual Fund in the name of
Neha, daughter of accused.
21. Value of IDBI Plexy Bond in the Rs. 30,000.00
name of accused.
22. Deposit for domestic Gas Rs. 950.00
connection.
23. -do- Rs. 1,400.00
24. Rent paid by the accused in Rs. 45,000.00
respect of Flat No.104 of Deepa
Apartment.
25. Price of the Car purchased in the Rs. 1,28,000.00
name of accused.
26. - do - Rs. 1,10,000.00
27. Cash found at the time of Rs. 16,800-00
search.
28. Value of gold articles. -
29. Value of gold shown in receipt Rs. 43,850.00
issued by Davanam Jewellers
Pvt. Ltd., Bengaluru.
30. Value of silver articles -
31. Value of electronic and electric Rs. 1,32,790.00
articles found in Flat No. 104.
32. Value of furnitures found in Flat Rs. 52,300.00
No.104.
33. Clothes/dresses found in Flat Rs. 13,000.00
No.104.
34. Value of exercise instruments Rs. 21,000.00
found in Flat No.104.
35. Value of household articles found Rs. 52,935.00
in Flat No.104.
Total Rs. 48,18,161.73
24. Ex.P.6(a) is the certified copy of the sale deed
dated 28.06.1999. Under this sale deed the appellant -
accused has purchased site described in item No.3 for total
sale consideration amount of Rs.3,70,000/-. The appellant -
accused has admitted the same. The appellant - accused
has purchased the said site from Bapuji Co-operative
Housing Limited, Bengaluru. Ex.D.15 are 5 receipts issued
by Bapuji Co-operative Housing Limited, Bengaluru dated
30.06.1993 for Rs.50,000/-, dated 15.11.1996 for
Rs.1,00,000/-, dated 18.03.1997 for Rs.50,000/-, dated
21.02.1997 for Rs.1,00,000/- and dated 25.04.1998 for
Rs.60,000/-. The appellant - accused was appointed as
Assistant Executive Engineer on 03.07.1995 and joined his
duties. The first receipt in Ex.D.15 indicates that on
30.06.1993 the appellant - accused paid Rs.50,000/-. Said
payment of Rs.50,000/- by the appellant - accused on
30.06.1993 is prior to his appointment and considering the
same, the trial Court has held that the appellant - accused
paid Rs.50,000/- from his own source prior to appointment
as a Government servant and excluded the same from the
value of assets in item No. 3 while calculating value of
acquisition of property by the appellant - accused during
his service. The trial Court deducting the said amount of
Rs.50,000/- from total sale consideration of Rs.3,70,000/-
has taken the value of asset in item No. 3 at Rs.3,20,000/-.
The appellant - accused has filed his Annual Property
Returns (APR) on his first appointment as per Ex.P.72
whereunder he has declared cash on hand of Rs.50,000/-
as on 03.07.1995 - the date of his appointment. Even
though there was balance sale consideration in respect of
purchase of site at item No. 3, the appellant - accused had
cash on hand in a sum of Rs.50,000/- and he had utilized
the same for payment of balance sale consideration which
he made after entering into service. Therefore, said amount
of Rs.50,000/- has to be deducted from Rs.3,20,000/- and
final value in respect of value of asset in respect of item No.
3 is to be taken as Rs.2,70,000/-.
25. Item No. 31 is electronic and electric items found
in flat No. 104 of value of Rs.1,32,790/-; item No. 32 is
value of furniture found in flat No. 104 of value of
Rs.52,300/-. Appellant - accused in his APR - Ex.P.72 filed
on 03.07.1995 has shown the value of electrical items
possessed by him in a sum of Rs.61,000/- and furniture of
value of Rs.45,000/-. The appellant - accused got married
on 09.11.1997. Wife of appellant - accused filed her income
tax returns and declared the value of furniture held by her
at Rs.15,000/-. Said income tax returns is part of Ex.P.94.
Considering the said aspect, the value of furniture
possessed by the appellant - accused is Rs.60,000/-
(45000 + 15000). Therefore, furniture in item No. 32 in a
sum of Rs.52,300/- needs to be excluded. Item No. 31 is
value of electronic and electric items in a sum of
Rs.1,32,790/-. The appellant - accused has declared the
electrical and electronic goods of value of Rs.61,000/- in his
APR (Ex.P.72) and therefore, said value of Rs.61,000/- is
to be deducted from item No. 31. Hence, value in item No.
31 is Rs.71,790 (132790 - 61000). Item No. 34 is gym
equipment of Rs.21,000/-.
26. Learned counsel for appellant - accused, referring
to Rule 23 of the Karnataka Civil Service (Conduct) Rules,
i.e., in note - II has contended that value of clothes,
crockery or dress need not be included in annual property
returns. Placing reliance on the same he contended that
item No. 33, clothes in a sum of Rs.13,000/- and item No.
35 - household articles of Rs.52,935/- are to be excluded.
Merely because there is no need for declaring the value of
articles of daily use such as clothes, utensils, crockery or
books in APR it does not mean that their value should not
be taken in to consideration for the purpose of ascertaining
value of the assets of the appellant - accused. Therefore,
said contention of the learned counsel for appellant -
accused does not hold any substance. Therefore, after
exclusion of item No. 32 - furniture and Rs.61,000/- from
item No. 31, on the remaining value 30% is to be deducted
as observed by the trial Court in paragraph No. 43 of the
impugned judgment since valuation is not made by experts
and these immovable properties are purchased during the
check period consisting of 14 years. Therefore, the total
value of item Nos. 31, 33 to 35 is Rs.1,58,725/- (71790 +
13000 + 21000 + 52935) and 70% of that comes to
Rs.1,11,107.50/- (rounded off to Rs.1,11,108/-).
27. The appellant - accused has not disputed the
findings of the trial Court with regard to assets at item Nos.
1, 2, 4 to 30.
28. The prosecution has estimated the value of assets
of appellant - accused at Rs.48,18,161/-. The trial Court
held that the prosecution has able to prove that the
appellant - accused has acquired assets in the name of
himself and his family members to the extent
Rs.44,92,704/- only. In view of the above discussion, the
value of asset at item No. 3 requires to be taken at
Rs.2,70,000/- as against the value taken by the trial Court
at Rs.3,20,000/-. The entire value of asset at item No. 32
namely, furniture, requires to be excluded. The total value
of item Nos. 31, 33 to 35 is Rs.1,58,725/- and 70% of that
comes to Rs.1,11,108/-. In view of the above, the total
value of assets as held by the trial Court in a sum of
Rs.44,92,704/- is required to be deducted by Rs.1,63,300/-
(item No. 3 - Rs.50,000/- + item No. 32 - Rs.52,300/- +
item No. 31 - Rs.61,000/-) = Rs.43,29,404/-. Therefore, I
hold that the appellant - accused had possessed assets
worth of Rs.43,29,404/-.
EXPENDITURE
29. Expenditure component of the appellant - accused
consisting of 46 items which are as under:
Sl. Descriptions Amount
No.
1. Invisible expenditure of the Rs. 6,57,917.00
family of accused during check
period.
2. Registration charges for Rs. 76,320.00
purchase of asset Item No.1.
3. Registration charges for Rs. 1,25,150.00
purchase of asset Item No.2.
4. Registration charges for Rs. 26,280.00
purchase of asset Item No.12 .
5. Registration charges for Rs. 5,539.00
purchase of asset Item No.11.
6. Registration charges for Rs. 4,688.00
purchase of asset Item No.9.
7. Registration charges for Rs. 5,035.00
purchase of asset Item No.8.
8. Registration charges for Rs. 4,949.00
purchase of asset Item No.10.
9. Registration charges for Rs. 45,950.00
purchase of asset Item No.7
10. Registration charges for Rs. 53,710.00
purchase of asset Item No.3
11. Stamp duty and registration Rs. 1,900.00
charges for gift deed.
12. Stamp duty and registration Rs. 2,475.00
charges in respect of partition
deed dated 6.09.2004
13. Panchayath tax Rs. 1,620.00
14. Electricity bill in respect of Flat Rs. 33,029.00
No.104.
15. Value of domestic cylinder Rs. 3,758.21
purchased by the accused.
16. Deposit to take domestic Gas Rs. 18,792.00
connection
17. Fuel and maintenance charges Rs. 75,359.00
of Car No.KA-02-P-4572.
18. Fuel and maintenance charges Rs. 20,264.30
of Car No.KA-02-P-6523.
19. Education fee of Neha, daughter Rs. 73,905.00
of accused.
20. Education fee of Kanisk, Rs. 23,100.00
daughter of accused.
21. Expenditure for birthday Rs. 2,000.00
celebration.
22. Membership fee paid by the wife Rs. 20,000.00
of the accused.
23. - do - Rs. 8,000.00
24. Premium of ICICI Prudential Life Rs. 40,000.00
insurance policy.
25. -do - Rs. 1,40,000.00
26. - do - Rs. 1,40,000.00
27. - do - Rs. 60,000.00
28. - do - Rs. 1,80,000.00
29. - do - Rs. 1,00,000.00
30. - do - Rs. 1,00,000.00
31. - do - Rs. 1,00,000.00
32. Premium towards LIC Policy Rs. 75,000.00
33. - do - Rs. 29,126.00
34. - do - Rs. 3,408.00
35. - do - Rs. 7,500.00
36. - do - Rs. 35,870.00
37. - do - Rs. 38,576.00
38. - do - Rs. 75,000.00
39. Premium for purchase of HDFC Rs. 1,60,000.00
Standard Life Insurance Policy.
40. Premium of R.D.in Post Office. Rs. 30,000.00
41. Premium of ICICI Insurance Rs. 40,000.00
Policy
42. Amount paid for PPF account Rs. 37,863.00
43. Maintenance charges and Rs.3,94,750.00
advance amount relating to Flat
No.104.
44. Income Tax paid by the Rs. 56,584.00
accused.
45. - do - Rs. 4,380.00
46. Income tax paid by the wife of Rs.16,955.00
the accused.
Total Rs.32,16,491.51
ITEM No. 1:
30. The prosecution has alleged that appellant -
accused might have spent a sum of Rs.6,57,917/- during
the check period on invisible expenditure, food and non-
food items. Ex.P.69 is report furnished by Deputy Director
(Statistics), Karnataka Lokayuktha, Bengaluru. In this
report it is shown that family expenditure has been
prepared as per General Family Income and Expenditure
Survey, 2009 Report of Karnataka and he was qualified to
assess the expenditure. This Ex.P.69 has been disputed by
appellant - accused. The author of Ex.P.69 by name Sri. G.
Thulsiram has not been examined by the prosecution since
he was no more. The prosecution has not examined any
other expert to prove the contents of Ex.P.69. Ex.P.69 has
been marked in the evidence of the Investigating Officer -
P.W.10. The trial Court observed that Investigating Officer
- P.W.10 was working in Karnataka Lokayuktha and author
of Ex.P.69 was also working in Karnataka Lokayuktha and
therefore P.W.10 was having special knowledge about the
signature of Sri. G. Thulsiram and therefore, evidence of
Investigating Officer - P.W.10 is sufficient compliance of
Section 67 of Indian Evidence Act for the proof of Ex.P.69.
Even though the signature of Sri. G. Thulsiram on Ex.P.69
is proved through the evidence of Investigating Officer -
P.W.10, its contents remained not proved since it is
disputed by the appellant - accused. The trial Court
considering that the check period is of 14 years, as per
Ex.P.69 total expenditure was Rs.6,57,917/-, appellant -
accused married in the year 1997, his first child was born
2000, second child was born in 2004, raid was conducted
on 08.09.2009 and if the total expenditure shown in
Ex.P.69 is spread into 14 years, per annum expenditure
comes to Rs.1,64,479/- and if the same is divided between
four members, then expenditure for each person would
come to Rs.11,748/- per annum. The trial Court considering
the same has held that the estimation in Ex.P.69 is
reasonable. In Ex.P.69 there is a mention that the list of
invisible/non-verifiable items covered under calculation has
been enclosed with it. Said list includes LPG, electricity,
diesel, school van/bus charges, private tuitions and other
educational expenses, house rent, telephone charges etc.
Taking into consideration said expenses the report -
Ex.P.69 is prepared. Electricity bill, cylinder value, fuel for
car, education fee of children are separately included in
item Nos. 14 to 20. If any expert had been examined to
prove the contents of Ex.P.69, then the appellant - accused
would have had an opportunity to cross-examine him to
ascertain the above said aspects of inclusion of Electricity
bill, LPG cylinder charges, fuel for car and education fee of
children. If the entire value stated in Ex.P.69 is taken into
consideration then regarding LPG cylinder value, electricity
bill, school fee, fuel for car will be duplication. Therefore,
the entire expenditure in Ex.P.69 in a sum of Rs.6,57,917/-
cannot be taken into consideration since item Nos. 14 to 20
are separately stated are also included in it. Appellant -
accused is also having income from agriculture and might
have received grains, vegetables etc., grown in his lands
and his expenditure towards food items cannot be equated
to others who are not having agricultural lands. Therefore,
under the circumstances, only 80% of the value mentioned
in Ex.P.69, i.e., a sum of Rs.5,26,333/- (80% of 6,57,917 =
5,26,333.60) can be taken as invisible expenditure in item
No. 1.
31. Item No. 17 pertains to fuel and maintenance of
car bearing No. KA-01/P-4572 owned by wife of appellant -
accused. Said car is second purchase and date of second
purchase is 06.03.2004 as per the `B' extract - Ex.P.67
and date of first purchase is 09.03.2001. The Odometer
running of the said car as on the date of second purchase is
not forthcoming in the prosecution records. The total
odometer running as on 08.09.2009 is 54721 as per
Ex.P.41. The Investigating Officer has taken 21300 KMs for
calculating the fuel and maintenance charges. Car has been
used by the first owner for three years and appellant -
accused has used the car for more than five years six
months. Considering the same, the Investigating Officer
might have taken 21300 KMs out of total odometer running
of 54721 KMs. Even though the said aspect has no scientific
basis, but, it cannot be said that it is on higher side
considering the total duration of usage of the car by the
appellant - accused after its purchase, i.e. five years six
months. P.W.13 is the author of Ex.P.67 who is the ARTO
and he has deposed regarding the manner and method of
his calculation of fuel consumption for those 21300 KMs
based on the rate of petrol during the relevant period.
Therefore, the trial Court has rightly taken that expense in
item No. 17 and it is proper and correct.
32. Appellant - accused was a tenant of an
apartment. P.W.12 is the landlady. Ex.P.17 is the letter of
landlady - P.W.12 regarding increase of rent. Ex.P.71 is the
lease agreement. Appellant - accused has not disputed
regarding the payment of rent of Rs.3,56,750/- but he has
dispute regarding maintenance charges of Rs.38,000/-. As
per the contention of appellant - accused rent amount
includes maintenance charges. The trial Court placed
reliance on Ex.P.17 - letter of the landlady dated
25.01.2008 stating that rent of Rs.5,500/- per month and
Rs.500/- for maintenance charges. The trial Court has
ignored the terms of lease deed Ex.P.71. The trial Court
erred in noting that the lease deed has no recital regarding
maintenance charges. On perusal of Ex.P.71 it is clear that
in term No.1 rent of Rs.4,500/- includes maintenance
charges. In Ex.P.17 - letter issued by P.W.12 - landlady
regarding enhancement of rent to Rs.5,500/- it is stated
that Rs.500/- maintenance is to be paid apart from rent of
Rs.5,500/-. P.W.12 in her cross-examination has admitted
that rent includes maintenance. The trial Court did not rely
on the said admission of P.W.12 but placed much reliance
on Ex.P.17 which is subsequently issued by P.W.12 landlady
ignoring the recitals in Ex.P.71 - lease deed. If recitals of
Ex.P.71 - lease deed and admission in cross-examination
by P.W.12 are taken into consideration then it is clear that
rent amount does not include maintenance charges.
Therefore, the trial Court has erred in taking maintenance
charges of Rs.38,000/-. Therefore, expenditure in item No.
43 has to be taken in a sum of Rs.3,56,750/-.
33. The prosecution has alleged the total expenditure
made by the appellant - accused during the check period
was Rs.32,16,491/-. The trial Court held that the
prosecution has proved that an amount of Rs.32,14,871/-
as has been spent by the appellant - accused under various
heads. The appellant - accused has not disputed the
findings of the trial Court with regard to expenditure at item
Nos. 2 to 16, 18 to 42 and 44 to 46. In view of the findings
on item Nos. 1, 17 and 43, in item No. 1 a sum of
Rs.1,31,584/- (6,57,917 - 5,26,333) + in item No. 43
Rs.38,000/- totaling to Rs.1,69,584/- requires to be
deducted in Rs.32,14,871/- which comes to
Rs.30,45,284/-. Therefore, the expenditure established is
Rs.30,45,284/-.
INCOME OF APPELLANT - ACCUSED
34. Prosecution has shown the income of the appellant
- accused during the check period in 31 items. The table of
income given by the prosecution is as under:
1. Salary received by the accused Rs. 1,44,190.00
2. - do - Rs. 26,384.00
3. - do - Rs. 52,984.00
4. - do - Rs. 2,21,929.00
5. - do - Rs. 1,394.00
6. - do - Rs. 1,82,002.00
7. - do - Rs. 74,420.00
8. - do - Rs. 9,83,100.00
9. - do - Rs. 2,92,749.00
10. Agriculture and Horticulture Rs. 10,21,365.55
income received by the accused.
11. Agriculture and Horticulture Rs. 1,22,870.00
income received by wife of the
accused.
12. Rent received by the wife of the ----
accused.
13. Sale consideration received by Rs.25,20,000.00
the wife of the accused.
14. Sale consideration received by Rs.2,05,000.00
the accused.
15. Sale consideration received by Rs.1,00,000.00
the wife of the accused after
selling Car No.KA-02-M-6523.
16. GPF Partial withdrawal. Rs.1,00,000.00
17. Loan received from Private ----
person.
18. Bank interest Rs. 12,390.00
19. - do - Rs. 3,492.00
20. - do - Rs. 5,393.00
21. - do - Rs. 5,937.00
22. - do - Rs. 7,254.00
23. - do - Rs. 14,427.00
24. - do - Rs. 2,445.00
25. Maturity value of R.D. Rs. 36,445.00
26. Maturity value of NSC Rs. 5,038.00
27. Maturity value of Life Insurance Rs. 11,842.41
Policy.
28. - do - Rs. 7,548.99
29. - do - Rs. 10,000.00
30. Income received by wife of the ----
accused.
31. Income received by the accused ----
from his business.
Total Rs. 63,25,565.95
ITEM No.3
35. Appellant - accused has drawn salary of
Rs.52,984/- from 18.11.1997 to 10.06.1998. Ex.P.30 is the
salary statement issued by the competent authority in
which office the appellant - accused worked as a public
servant. Appellant - accused has admitted salary shown in
Ex.P.30 but claimed that in addition to salary shown in
Ex.P.30 he has received additional salary in the form of
arrears of annual increment to the extent of Rs.1,538/-. In
order to substantiate this claim the appellant - accused has
produced last pay certificate - Ex.D.16. In Ex.D.16 the
authority has shown the pay particulars of the appellant -
accused drawn up to 15.06.1998. On the back page of
Ex.D.16, in small letters, it has been shown that Rs.1,538/-
has been drawn as annual increment arrears for the period
from 18.04.1997 to 15.06.1998. The prosecution has
disputed the said entry. Ex.P.30 and Ex.D.16 are
contradicting in Rs.1,538/-which is shown in Ex.D.16. The
appellant - accused has not examined the authority who
issued Ex.D.16 to prove its contents. The trial Court
observed that original LPC will not be handed over to the
employee/government servant and the appellant - accused
has not clarified how he came in possession of Ex.D.16. The
trial Court further observed that Ex.D.16 is not produced
from property custody. The trial Court did not rely on
Ex.D.16 since its author is not examined and it is not
produced from property custody. Therefore, the trial Court
has rightly held that the appellant - accused failed to
establish that he has received a sum of Rs.1,538/- in
addition to his salary shown in Ex.P.30.
36. Appellant - accused received salary of
Rs.1,82,002/- for the period from 16.10.2000 to
22.10.2002. In Ex.P.31 and Ex.D.31(a) issued by the
General Manager, Dr. B.R. Ambedkar Development
Corporation Limited, Bengaluru, salary paid to the appellant
- accused who worked as Executive Engineer in that
Corporation is shown as Rs.1,82,002/-. Appellant - accused
has admitted salary shown in Ex.P.31(a). However,
appellant - accused has claimed that in additional to said
salary he received additional salary of Rs.4,880/- during the
said period. The appellant - accused has relied upon Ex.D.7
which is the salary statement issued by the Karnataka
Scheduled Caste and Scheduled Tribes Development
Corporation Limited dated 05.06.2004. In Ex.D.7 the
authority has shown that from 16.10.2000 to 21.10.2002
the total net salary of Rs.1,86,882/- was paid to the
appellant - accused who worked in that Corporation as
Assistant Executive Engineer. The trial Court on reading
Ex.D.7(1) has erred in holding that the salary for January
2003 has been added and it is the main cause for
difference in Ex.P.31(a) and Ex.D.7(a). The said amount
which is paid in January, 2003 as per Ex.D.7(1) in a sum of
Rs.14,938/- is not salary but it is increment arrears from
16.10.2000 to October, 2002, it is also reflected in item No.
31 of Ex.P.31(a). In the same entry a sum of Rs.4,519/-
has been deducted and increment arrears after deducting
the same is paid at Rs.10,419/-. It appears, that deduction
of excess of salary might be amount claimed by the
appellant - accused. In Ex.D.7(a) the basic salary for
October 2002 is Rs,5,690/- and as per Ex.P.31(a) basic
salary for October 2002 is Rs.7,800/-. Appellant - accused
has not examined the author of Ex.D.7(a) in order to prove
its contents as there are contradicting entries in Ex.P.31(a).
Therefore, the trial Court has rightly rejected the claim of
appellant - accused for additional salary of Rs.4,880/-
during 16.10.2000 to 22.10.2002.
37. This item pertains to income from agricultural
lands, from agricultural crops and horticultural crops. The
Investigating Officer has bifurcated the income received by
appellant - accused from land and properties under three
heads. First part relates to horticulture income received by
appellant - accused from 31.03.2004 to 31.03.2009 from
his self-acquired properties to the extent of
Rs.10,21,365.55. In the second part the Investigating
Officer has shown that the appellant - accused has received
agricultural income of Rs.48,645/- from his self-acquired
property from 2004-05 to 2009-10. In the third part the
Investigating Officer has shown that the appellant -
accused was having ancestral landed properties and from
such lands joint family received income and from such
income he received income of Rs.1,06,321/- from
31.03.1996 to 31.03.2009. Prosecution has examined
P.W.6 - Senior Assistant Director, Horticulture, Hiriyoor to
prove the horticulture income received by appellant -
accused from self-acquired property. P.W.6 had deputed
one Sri. Sandeep Kumar H., Assistant Horticulture Officer
for inspection of the land and estimation and he inspected
the lands and furnished estimation in respect of horticulture
income of said lands. Ex.D.58 is the estimation prepared by
said Sri. Sandeep Kumar H., and the same has been
countersigned by P.W.6. P.W.6 has stated that from those
lands horticulture income of Rs.10,21,365.55 was received
by the owner. P.W.6 has shown the theory of ascertaining
horticulture income of these lands by saying Total Realistic
Income (TRI) = Total Net Income (TNI) - (TNI/2). By such
theory estimation of horticulture income in the form of TRI
is shown in Ex.P.58.
38. Prosecution has examined P.W.11 - Agricultural
Officer working in Agriculture Office at Hiriyoor to prove the
agriculture income received from self-acquired properties
which are purchased by him. P.W.11 has deposed that she
visited the self-acquired property including survey No. 9/1
and estimated the agriculture income derived from such
land and estimated income is Rs.48,645/- as per report
Ex.P.48.
39. The joint family of appellant - accused was
holding lands bearing survey No. 10/2, 10/1C2, 10/1C3 and
9/1 at J.J. Halli and from said lands the family received
horticulture income of Rs.2,95,118.82 from 1993-94 to
2004-05 and to prove the said income prosecution has
relied on the evidence of P.W.6 and her report - Ex.P.59.
P.W.6 has deposed that the report - Ex.P.59 has been
prepared by Sri. Sandeep Kumar H., Assistant Horticulture
Officer and she has verified the estimate prepared by him in
Ex.P.59 and countersigned it. Said estimation was done on
the theory used for horticulture income of self-acquired
properties of appellant - accused in the form of TRI = TNI -
(TNI/2).
40. Income from horticulture and agriculture of self-
acquired property of appellant - accused and joint family
property has been taken on the estimation that was done
on the theory in the form of TRI = TNI - (TNI/2). Learned
counsel for appellant - accused argued that total net
income (TNI) is the income taken after deducting all the
expenses and there is no scientific reason for taking half of
total net income stating that it is the total realistic income
(TRI). He submitted that total net income (TNI) is double of
total realistic income and therefore, the appellant - accused
has received horticulture income of Rs.20,42,730/- shown
in Ex.P.58 and joint family has received income of
Rs.5,90,236/- shown in Ex.P.59. P.W.6 who is stated to be
an expert has not stated why total net income has to be
divided by 2 and what is total realistic income (TRI). Even
the Investigating Officer - P.W.10 has only stated that TNI
will be double of TRI and he has taken the income based on
the figures mentioned in Ex.P.58 and Ex.P.59.
41. The logic of TNI and TRI can be ascertained on a
bare reading of Ex.P.42 whereunder the methodology of
arriving at TNI is reflected. TNI mentioned in Ex.P.42 is net
income after deduction of expenses. The observation of the
trial Court in paragraph No. 104 of the impugned judgment
is as under:
"It appears that the total net income
includes the cost of cultivation and therefore,
cost of cultivation to the extent of 50% would be
deducted from the TNI and the total realistic
income will be ascertained. Therefore, TRI is the
real income received by the owner."
The trial Court has observed that,
"why TNI has been divided into two parts
while ascertaining TRI is not asked to P.W.6
either by prosecution or by the defence."
42. The observation of the trial Court as noted above
in paragraph No. 104 of the impugned judgment is not
correct in view of Ex.P.42 wherein it is specifically
mentioned that total net income is arrived at after
deducting cost of cultivation and expenses. Therefore, the
trial Court erred in not taking the total net income as
mentioned in Ex.P.58 and Ex.P.59. Therefore, the appellant
- accused has received horticulture income of
Rs.20,42,730/- as shown in Ex.P.58 for the period from
2003-04 to 2009-10 and the joint family of the appellant -
accused has received income of Rs.5,90,236/- as shown in
Ex.P.59.
43. Appellant - accused has received total income of
Rs.48,645/- from agricultural lands which are his self-
acquired properties as per Ex.P.40, Ex.P.57 and Ex.P.60.
Learned counsel for appellant - accused would contend that
the Investigating Officer has not taken into consideration
agricultural income in respect of some properties stating
that RTC does not reflect any crop grown in those lands.
The appellant - accused has not placed any material to
show that he has grown crop in those lands even though
RTC does not reflect crop grown. Therefore, the trial Court
has rightly held that appellant - accused has received
agricultural income of Rs.48,645/- in respect of lands in
survey No. 10/1D, 10/1C1, 10/1E, 10/1F and 9/1 situated
at J.J. Halli.
44. With regard to the portion of item No. 10 which
pertains to agricultural lands owned by the joint family, the
Investigating Officer has taken the total income of
Rs.1,06,321/-.
45. Father of appellant - accused namely Sri. M.N.
Narayanappa was married to one Smt. Sakamma and from
the said marriage they had four children, namely, Sri.
Ashwathappa, Smt. Lakshmidevi, Sri. Naganna and Sri.
Ramanna. Upon demise of said Smt. Sakamma father of the
appellant - accused married Smt. Narayanamma and from
the said marriage had got eight children, namely,
Sri.Narayanaswamy, Smt. Umadevi, Smt. Savithri, Sri.
Narasimhamurthy, Smt. Prema, Sri. Narasimharaju
(appellant - accused), Smt. Varalakshmi and Sri. Satish.
Father of appellant - accused expired on 26.02.1991 and
his mother Smt. Narayanamma expired on 31.01.2003.
Three step brothers of the appellant - accused born to Smt.
Sakamma executed a deed of release on 11.08.1976 under
three separate deeds of release - Ex.D.3, Ex.D.4 and
Ex.D.5. Step sister of appellant - accused namely Smt.
Lakshmidevi was not a coparcener and did not have a share
in the joint family property and therefore there was no deed
of release executed by her.
46. On the death of Sri. Narayanappa there were only
four coparceners. Elder brother of the appellant - accused
namely, Sri. Narasimha Murthy executed Ex.D.6 - release
deed and separated from the joint family by taking his
share on 22.04.1991. Therefore, there are only three
coparceners available in the family of appellant - accused.
Learned counsel for appellant - accused has contended that
as there were only three coparceners the income from the
joint family lands has to be divided by three. The deed of
partition - Ex.P.65 is executed by the sisters confirming
that they have no share in the joint family properties. He
contended that the appellant - accused during his
examination-in-chief has merely contended that income
was distributed between sister, mother and three brothers
who were the sole coparceners and such distribution was
out of love and affection and not as a matter of right. There
is no evidence regarding quantum of distribution and that
distribution was made equally. Sister of the appellant -
accused got married on 29.04.1996 within nine months
from the commencement of check period.
47. The trial Court in paragraph No. 120 of the
impugned judgment has extracted the admission given by
D.W. 1 - appellant - accused in his examination-in-chief
wherein he has specifically stated that from the year 1992
till execution of partition deed - Ex.P.61(a), he, his brothers
Sri. Satish, Sri. Narayanswamy, his mother and sister Smt.
Varalakshmi were sharing the income from joint family
property. Appellant - accused has admitted in the said
chief-examination that till death of Smt. Narayanamma on
31.03.2003 himself, his brothers Sri. Satish and Sri.
Narayanaswamy, his mother and sister Smt. Varalakshmi
received income from the joint family property. Taking into
consideration said admission, the trial Court has rightly held
that the appellant - accused was receiving only 1/5th share
in the total income derived from the joint family agriculture
lands from 1992 to 06.09.2004. After 06.09.2004 till
08.09.2009 appellant - accused and his brothers Sri. Satish
and Sri. Narayanaswamy were receiving income from the
joint family properties. Therefore, from 07.09.2004 to
08.09.2009 agricultural income has to be divided into three
parts and share of appellant - accused was 1/3rd. The trial
Court has considered the same and it is proper. The trial
Court has taken into consideration income from survey No.
10/2, 10/1C2, 10/1C3 and 9/1, the total realistic income
value which is half of total net income. Therefore, total net
income value, as discussed supra, has to be taken into
consideration which is total net income after deducting all
the cultivation expenses. Therefore, income of appellant -
accused from the said lands is 1/5th of total net income. In
view of the above, calculation of income received by
appellant - accused from agricultural land is as under:
Sl. Sy.No. Horticulture & Share of the Horticulture Share of the
No. agriculture appellant Income after appellant
income till death of
death of Narayanamma
Narayanamma
1. 10/2, 1,62,097/- 1/5th = 1,33,020/ X 2 1/3rd =
10/1C2 {162097 X 2 64838.80 =
10/1C3 = 1/5th 2,66,040 88,680
9/1, 324194/5= = 14928.40
10/1A1 64838.8}
37,321/-
{37321 X 2
=74642/5=
14928.40}
2. 86/1, 35,353/- 1/5th =7070/- Nil
87/1, 79,924/- 1/5th - do -
92/2 1,26,985/- =15,985/- - do -
+230/- 1/5th
=25,397/-
1/5th =46/-
3. 67/2 1,20,587/- Nil 55,190/- 1/3rd
18,396/-
4. 67/5 1,20,587/- Nil 55,190/- 1/3rd
18,396/-
Total 6,83,084/- 1,28,264.20 3,76,420 1,25,472/-
Therefore, appellant - accused has received a sum of
Rs.2,53,736 (1,28,264 + 1,25,472) from the joint family
lands.
48. In view of the above, I hold that from the self-
acquired properties appellant - accused has received
horticulture income of Rs.20,42,730/-. Further appellant -
accused has received agricultural income of Rs.48,645/-
from his self-acquired property. Appellant - accused has
received income of Rs.2,53,736/- from agricultural land of
his joint family. Therefore, total income received by
appellant - accused from landed properties is
Rs.23,45,111/- (20,42,730 + 48,645 + 2,53,736/-).
49. The appellant - accused has furnished schedule
statement before the Investigating Officer stating that his
wife received rental income from Sri. P. Kiran - D.W.3 in
respect of poultry farm existing in survey No. 86/1, 87/1
and 88/1 to the extent of Rs.2,32,950/- during 07.03.2002
to 31.08.2004. The Investigating Officer found the claim to
be false and has rejected it. The appellant - accused, in
order to prove such income, examined himself as D.W.1
and got examined his brother - Sri. Satish as D.W.2 and
said Sri. P. Kiran - tenant as D.W.3 and placed reliance on
the document - Ex.D.38. Ex.P.38 is the letter dated
31.01.2012 given by D.W.3 to the Investigating Officer
stating that he has paid rent to the wife of the appellant -
accused and others. This letter has been given by D.W.3
during investigation along with some documents and
therefore, the trial Court has observed that the said letter is
in the nature of statement under Section 161 of Cr.P.C. but
the same is incorrect. D.W.1 in his evidence has deposed
that his family was having poultry farm in Devanahalli and
it was leased in favour of D.W.3 who was running Sujatha
Feeds and he was paying rent of Rs.8,000/- per month.
D.W.2 in his evidence has deposed that from 2002 to 2007
the poultry farm which existed in lands at Hakkipete was
given to D.W.3 on rent and he was running Sujaya Farms in
such poultry and had paid rent of Rs.7,765/- per month to
the wife of appellant - accused. D.W.2 in his cross-
examination has stated that he has destroyed the said
agreement. D.W.3 has deposed that he has given his
statement before the Investigating Officer including
Ex.D.38. He has deposed that he has taken the poultry
farm sheds on rent by entering into written agreement and
he was a tenant for 3 to 5 years and paid rent of Rs.7,765/-
to Lakshmi when he was confronted with Ex.P.38. The trial
Court noted some contradictions in the evidence of D.W.1,
D.W.2 and D.W.3 in respect of rent paid by D.W.3 to the
wife of appellant - accused and regarding the quantum of
rent amount. The trial Court, referring to Ex.P.65(A) -
partition deed dated 06.09.2004 under which survey Nos.
86/1, 87/1 and 92/2 have been allotted to the share of
D.W.2 - Sri. Satish and under such circumstances how wife
of appellant - accused received rent till December, 2004.
Even D.W.2 has stated that till 2007 D.W.3 paid rent to the
wife of appellant - accused. The trial Court observed that
wife of appellant - accused was not a sharer and under
what capacity she had received the rent is not spoken by
any of the witnesses. As a wife one can enter into an
agreement in respect of property of her husband and can
receive rent amount, there is no question of any
authorization by appellant - accused to his wife to enter
into lease agreement with D.W.3 and receive rent as
observed by the trial Court. The trial Court harped upon
the oral evidence of D.W. 1 to D.W.3 and ignored Ex.P.94 -
lease deed dated 07.03.2003 executed between D.W.3 -
Sri. P. Kiran and Smt. Lakshmi wife of appellant - accused.
In clause No.2 of the said lease deed - Ex.P.94 rent amount
is Rs.7,765/-. Said rent amount in a sum of Rs.7,765/-
corroborates with the contents of the letter - Ex.P.38 issued
by D.W.3 to the Investigating Officer. D.W.3 along with the
said letter - Ex.P.38 has produced his balance sheet, profit
and loss account, bank statement, Income Tax
acknowledgment, electricity bill, etc., but, the Investigating
Officer has not produced them. Prosecution has cited the
said Sri. P. Kiran as charge sheet witness No.13 but did not
choose to examine him and therefore, the appellant -
accused summoned him and examined him as D.W.3. The
trial Court did not refer to and consider Ex.P.94 - lease
deed and its contents. Considering the evidence of D.W. 1
to D.W.3 coupled with lease deed Ex.P.94 and Ex.P.38, the
appellant - accused has established that his wife received
rent of Rs.7,765/- per month for the period from
07.03.2002 to 31.08.2004 in a sum of Rs.2,32,950/-.
The trial Court has erred in not accepting the said claim
made by the appellant - accused.
50. Under sale deed dated 09.06.2006 produced in
Ex.P.35 the land bearing survey No.67/2, 67/5, 148/1
measuring 2 acres 13 guntas, 1 acre 38 guntas and 10
guntas respectively purchased by Smt. Narayanamaa
(mother of appellant - accused) shown in assets item Nos.
5 and 6 were sold for consideration amount of
Rs.4,10,000/-. Ex.P.35 - sale deed is executed by
appellant - accused and his brother Sri. Satish (D.W.2). As
said sale deed is executed by two persons it is stated that
the appellant - accused has received half consideration
shown in said sale deed to the extent of Rs.2,05,000/-. It is
the case of appellant - accused that these three lands were
agreed to be allotted to his share by the family members at
the time of effecting partition deed dated 06.09.2004 under
Ex.P.65 and even though sale deed is jointly executed by
himself and his brother Sri. Satish, he alone has received
entire sale consideration in a sum of Rs.4,10,000/-. It is the
case of appellant - accused that even though the partition
deed - Ex.P.65 is executed on 06.09.2004, the property
sold under sale deed dated Ex.P.35 are not included in the
said partition deed with the understanding that the said
property is to be allotted to the appellant - accused. D.W.2
- Sri. Satish, brother of appellant - accused, has deposed
that the appellant - accused received the entire sale
consideration of Rs.4,10,000/- and he has signed the sale
deed as nominal executor and because of that he has not
disclosed the receipt of consideration in his income tax
return. In Ex.D.17 to Ex.D.22, income tax return of D.W.2 -
Sri. Satish, he has not shown receipt of consideration
amount shown in Ex.D.35 - sale deed. Appellant - accused
in his income tax return - Ex.D.42 has shown that he has
received sale consideration of Rs.4,10,000/-. Inspite of
such income tax return and evidence of D.W.1 and D.W.2,
the trial Court did not consider them stating that appellant
- accused has purchased site bearing survey No. 23 of
Gollubana hobli and the said sale consideration amount of
Rs.4,10,000/- has been shown in income tax return to claim
and establish that it is reinvested in purchasing other
property. The trial Court further observed that the said
amount of Rs.4,10,000/- has been shown in the income tax
returns of the appellant - accused in order to avoid
payment of income tax on the capital gain received under
Ex.P.35 - sale deed. Even inspite of said documents the
trial Court has hypothetically given said reasoning which
has no basis. D.W.2 - Sri. Satish one of the executors has
not shown the receipt of sale consideration in his income
tax returns and the appellant - accused has shown the
entire sale consideration of Rs.4,10,000/- in his income tax
returns. There is no question of any help by D.W.2 -
brother of appellant - accused to the appellant - accused
as observed by the trial Court. Therefore, the trial Court
ought to have held that the appellant - accused has
received the entire sale consideration in a sum of
Rs.4,10,000/- after sale of property shown in sale deed
Ex.P.35.
51. Appellant - accused while submitting schedule
statement before the Investigating Officer has claimed that
his wife Smt. Lakshmi was conducting computer classes
from 1997-98 to 2009-2010 and she has received income
from such profession. The appellant - accused (D.W.1) in
his evidence has deposed that his wife is holder of
Engineering degree in Electronics and Communication and
she was conducting tuitions to students of 8th Standard to
B.E. in her house for the subject of mathematics, science
and computer and thereby she earned money and shown
the same in her income tax returns filed by her from time
to time. The appellant - accused has not maintained any
records relating to conduct of classes and her profession
excluding income tax returns. There was only one computer
in the house of appellant - accused and it is the evidence of
appellant - accused that the students who were coming to
the tuitions were brining their Lap Tops for coaching. Even
wife of the appellant - accused has not maintained any day
book or any supporting documents in respect of her
profession. There are no bills relating to income received by
the wife of appellant - accused as shown in her income tax
returns. Ex.D.23 to Ex.D.31 are income tax returns of the
wife of appellant - accused filed for the assessment years
2002-2003 to 2010-2011. In these records wife of the
appellant - accused has shown that she earned money from
computer training. The trial Court rejected the claim of the
appellant - accused in that regard on the ground that
appellant - accused has not examined his wife and any
student who attended tuition classes and paid fees. Learned
counsel for appellant - accused has argued that being
husband he is competent to adduce evidence on behalf of
his wife in view of provisions contained under Section 120
of the Evidence Act.
52. Section 120 of the Evidence Act reads thus:
"120. Parties to civil suit, and their
wives or husbands. Husband or wife of person
under criminal trial. - In all civil proceedings the
parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses. In
criminal proceedings against any person, the husband
or wife of such person, respectively, shall be a
competent witness."
53. In view of the aforesaid provision contained in
Section 120 of the Evidence Act husband is competent
witness to give evidence in a criminal case on behalf of his
wife. The income of the wife is also an asset. The
government servant, in view of Rule 23 of the Karnataka
Civil Service (Conduct) Rules, 1966 is required to report the
income of his wife who is a member of the family in his
APR. The APR filed by the appellant - accused for the
relevant period does not disclose the income of wife earned
from tuition/computer classes. Except the Income Tax
Returns of the wife of the appellant - accused there are no
records maintained regarding taking of tuition classes,
income from fees of tuition. Even the appellant - accused
has not examined any of the students who took tuition from
his wife. Therefore, the trial Court has rightly held the
appellant - accused has failed to prove that his wife earned
money from her profession during the check period.
ITEM No.31
54. Appellant - accused in the schedule statement
submitted before the Investigating Officer has claimed that
he has received income from business/trade during check
period to the extent of Rs.5,13,041/-. Said claim came to
be rejected on the ground that no material has been
furnished by appellant - accused. The appellant - accused
(D.W.1) in his evidence has stated that he has received
income from selling the nurseries of arecanut and coconut
and such income has been shown in his income tax return -
Ex.D.41 to Ex.D.44. Ex.D.41 to Ex.D.44 are copies of
income tax returns submitted by appellant - accused to the
Income Tax Department as kartha of joint family. In the
balance sheet - Ex.D.42 appellant - accused has shown
that he received profit of Rs.1,47,000/- from business; in
Ex.D.43 Rs.1,65,000/- and Ex.D.44 - Rs.1,90,000/- as
profit from business. The trial Court has observed that
appellant - accused has not produced any documents
regarding the income from nursery and who is managing
the said nursery. The trial Court has observed that as per
Rule 16 of the Rules, Government servant is totally barred
from carrying on any trade or business during service.
Learned counsel for appellant - accused has argued that in
accordance with the Karnataka Land Reforms Act and
according to Section 2(1) of the Act agriculture includes
horticulture. He further referred to explanation of Section
89 of the Karnataka Land Reforms Act, agricultural
purposes includes sericulture, fishery, poultry etc.
Therefore, he submitted that nursery is not a business and
it comes under agriculture and there is no need for the
appellant - accused to take permission and Rule 16 of the
Rules does not apply as it is not a business. Horticulture
and agricultural income has already been considered in item
No. 10. The appellant - accused has not separately shown
income from nursery in his APR. The appellant - accused
has not maintained any record to establish that he has
received income from nursery as shown in his Income Tax
Returns. Therefore, the trial Court has rightly held that
appellant - accused has failed to prove income from
nursery business.
55. The appellant - accused has not disputed the
findings of the trial Court on income at item Nos. 1, 2, 4, 5,
7 to 9, 11, 13 and 15 to 29. The trial Court held that the
income of the appellant - accused and his wife as
established by the prosecution is Rs.67,58,709/-
(Rs.63,25,565/- as per prosecution + 4,33,144/- under
item Nos. 10, 27 and 28 proved by the appellant -
accused). In view of the findings of this Court on item Nos.
10, 12 and 14, the total income from item No. 10 is
Rs.20,42,730/- + 48,645/- (from horticulture and
agriculture of properties standing in the name of appellant -
accused) and Rs.2,53,736/- share of the income of
appellant - accused from horticulture and agriculture
income from joint family properties. Therefore, the total
income under item No. 10 is Rs.23,45,111/-. The said
income as held by the trial Court in a sum of
Rs.12,39,475/- requires to be deducted in Rs.23,45,111/-
which comes to Rs.11,05,636/- and it has to be added to
the income as arrived at by the trial Court. Apart from that
income of Rs.2,32,950/- in item No. 12 and Rs.2,05,000/-
in item No. 14 requires to be added to the income.
Therefore, the total income to be added is Rs.11,05,636/- +
Rs.2,32,950 + Rs.2,05,000 = Rs.15,43,586/-. Therefore,
the total income of the appellant - accused as established is
Rs.67,58,709/- (trial Court) + Rs.15,43,586/- =
Rs.83,02,295/-.
56. The trial Court considering defence evidence led
by appellant - accused has held that an amount of
Rs.10,000/- has to be added as assets of the appellant -
accused and Rs.24,860/- has to be added as income of the
appellant - accused during the check period.
57. In view of the above, the assets in possession of
appellant - accused, his wife, and children are worth
Rs.43,29,404/-. The expenditure established is
Rs.30,45,284/-. The income established is
Rs.83,02,295/-. Apart from that appellant - accused by
his defence has established assets of Rs.10,000/- and
income of Rs.24,860/-. In view of the above, the assets +
expenditure does not exceed the income established.
Therefore, the appellant - accused has not acquired any
assets disproportionate to his known source of income. The
trial Court has erred in holding that the appellant - accused
has acquired assets disproportionate to his known source of
income.
58. In view of the above, the point is answered in the
affirmative. In the result, the following;
ORDER
I. Appeal is allowed.
II. The impugned judgment of conviction and order
of sentence dated 10.11.2022 passed in Spl.C.
No. 107/2014 by the III Additional District and
Sessions Judge and Special Court for trial of
cases relating to Prevention of Corruption Act,
Dakshina Kannada, Mangaluru, is set aside.
III. The appellant - accused is acquitted for the
offence punishable under Section 13(1)(e) read
with Section 13(2) of P.C. Act.
IV. Fine, if any, deposited is ordered to be refunded
to appellant - accused.
Sd/-
JUDGE.
LRS.
CT-SM
