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