Madras High Court
Unknown vs P.Prabhu on 28 April, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.Nos.110 to 113 of 2018.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.01.2025
PRONOUNCED ON : 28.04.2025
CORAM
THE HON'BLE MR. JUSTICE P.VELMURUGAN
Crl.R.C.(MD)Nos.110 to 113 of 2018
... Petitioner
State represented by
The Public Prosecutor
High Court, Madras 600 104
[V and AC., Dindigul]
Crime No.1 of 2012
Vs
P.Prabhu ... Respondent in Crl.R.C(MD) No.110 of 2018/A4
I.Periasamy ... Respondent in Crl.R.C(MD) No.111 of 2018/A1
I.P.Senthilkumar ... Respondent in Crl.R.C(MD) No.112 of 2018/A3
P.Suseela ... Respondent in Crl.R.C(MD) No.113 of 2018/A2
COMMON PRAYER: Criminal Revision Petitions filed under Sections
397 and 401 of Cr.P.C., to set aside the order of discharge passed by the
Chief Judicial Magistrate cum Special Judge for Prevention of
Corruption Act Cases, Dindigul in C.M.P.Nos.773, 1164, 1165 & 598 of
2016 in Special Case No.27 of 2014 [common order passed in
C.M.P.Nos.1164, 598, 1165 and 773 of 2016 dated 28.04.2017].
Page 1 of 42
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For Petitioner : Mr.J.Ravindran, AAG
Assisted by
Mr.S.Vinoth Kumar
Government Advocate (Crl.Side)
in all Crl.R.Cs
For Respondent
in Crl.R.C(MD)
Nos.110 and 112 of 2018 : Mr.Arun Anbumani
for Mr.L.Ramesh Kumar
For Respondent
in Crl.R.C(MD)
Nos.111 and 113 of 2018: Mr.A.K.Sriram, Senior Advocate
for Mr.K.Muthu Ganesa Pandian
C O M M ON O R D E R
The Criminal Revision Petitions have been filed to set aside
the common order dated 28.04.2017 passed in C.M.P.Nos.773, 1164,
1165 & 598 of 2016 in Special Case No.27 of 2014 by the learned Chief
Judicial Magistrate cum Special Judge for Prevention of Corruption Act
Cases, Dindigul.
2. The case of the prosecution is that A1, who is the respondent
in Crl.R.C(MD) No.111 of 2018 was a Member of the Legislative
Assembly and became the Minister for Revenue and Prisons
Department, Government of Tamil Nadu during the period from
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13.05.2006 to 31.03.2010. A2 is the wife, A3 and A4 are sons of A1,
respectively. During his position as Minister, he had accumulated
properties and pecuniary resources which are disproportionate to his
known sources of income. After a detailed investigation, the
Investigating agency found that the accused No.1 after acquiring
considerable properties and pecuniary resources derived through
unknown sources, converted the same in the form of properties and
securities in his name and his family members viz. A2 to A4 with their
knowledge and consent. Further, the accused did not have sufficient
means and sources of income to acquire those properties and pecuniary
resources. Hence, a case was registered in Crime No.1 of 2012 against
the accused persons, by the Vigilance and Anti-Corruption Agency,
Dindigul for the offences under Sections 13(2) read with 13(1)(e) of
Prevention of Corruption Act, 1988 and under Sections 120-B and 109
of IPC.
3. After completion of investigation, the Investigating Officer
filed a charge sheet dated 24.08.2012 along with statements I to VII
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against all the accused for the check period 13.05.2006 to 31.03.2010
before the learned Special Judge, Special Court for Prevention of
Corruption Act Cases, Madurai and the same was taken on file in
C.C.No.1 of 2013 and subsequently transferred to the Chief Judicial
Magistrate cum Special Judge for Prevention of Corruption Act Caes,
Dindigul and same was taken on file in Special CC.No.27 of 2014.
Pending CC, the respondents have filed the petitions under Section 239
Cr.P.C., in C.M.P.Nos.773, 1164, 1165 & 598 of 2016 to discharge them
from the charges levelled against them. The learned Special Judge, vide
common order dated 28.04.2017, discharged the accused/respondents
herein by allowing the petitions filed by them. Aggrieved by the same,
the petitioner/State has filed this Criminal Revision Petitions.
4. Learned Additional Advocate General appearing for the
petitioner submitted that A1 became the Minister for Law and Revenue,
Government of Tamil Nadu on 13.05.2006 and continued up to
13.02.2007 and then, he was the Minister for Revenue and Prisons from
13.02.2007 to 27.09.2007 and then, he was the Minister for Revenue and
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Housing from 27.09.2007 to 14.05.2011. The accused No.1, during his
position as a Minister, the check period was determined between
13.05.2006 and 31.03.2010. The value of assets stood to the credit of A1
and his family members who are A2 to A4 at the beginning of the check
period as on 13.05.2006 is Rs.1,17,61,390.65/-. The value of assets
stood to the credit of A1 and his family members at the end of check
period as on 31.03.2010 is Rs.3,26,04,988.21/-. Hence, the assets
acquired by the accused persons during the abovesaid check period were
arrived at Rs.2,08,43,597.56/-. Likely, savings of A1 and his family
members were arrived at Rs.7,08,445.40/- The assets disproportionate to
known sources of income of the accused persons is Rs.2,01,35,152.16/-.
Since A1 as a public servant, during the period between 13.05.2006 and
31.03.2010, was in possession of pecuniary resources, movable and
immovable properties in his name and also in the name of his family
members viz., A2 to A4, which were disproportionate to their known
resources of income. Hence, A1 committed the offence under Section
13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988. In
the course of same transaction, A2 to A4, who abetted A1 by
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intentionally allowing A1 to acquire a substantial portion of his assets in
their names and by holding those assets on behalf of A1 and hence, they
committed offence under Sections 109 IPC read with 13(2) read with
13(1)(e) of the Prevention of Corruption Act.
5. Learned Additional Advocate General appearing for the
petitioner/State further submitted that without appreciating the
materials available on record and without considering the value of the
documentary evidence, the learned Special Judge passed the impugned
order. Though the income tax returns may be a material document, the
same cannot be the ground to hold that it is a conclusive document. The
respondents have placed much reliance on the Income Tax Returns filed
by them. Mere filing of Income Tax Returns before the Income Tax
Authority would not prove that they had earned that income from the
sources mentioned by them. The Special Court ignored the materials and
the counter placed by the prosecution. Mere filing of Income Tax
Returns before the Income Tax Authority cannot be put to hold that the
respondents had earned the income from the lawful sources. Further, the
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Income Tax Returns filed by the respondents herein are found to have
been accepted summarily and the Income Tax Authority did not make
any probe as to whether the respondents had actually derived the income
as shown in their Income Tax Return Statement. The Special Court
simply reproduced the submission of the counsel for the
respondents/accused. Hence, the common order passed by the trial court
discharging the respondents/A1 to A4 is liable to be dismissed.
6. Learned Senior counsel appearing for the respondents/A1 and
A2 submitted that the Respondent in Crl.R.C(MD) No.111 of 2018/A1
has been elected as a Member of the Legislative Assembly for six times
and held the office of the Minister for various Departments in the
Government of Tamil Nadu. Apart from the salary and pension derived
by the respondent (A1), he inherited ancestral agricultural lands and
derived income therefrom since 1972. A1 filed the Income Tax Returns
by disclosing all his personal income, ancestral properties and
agricultural income derived therefrom and purchase of properties from
his personal income and the income derived from ancestral properties.
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The properties were purchased out of the income derived from the
ancestral agricultural properties. Pursuant to the family arrangement of
sharing the income from the agricultural ancestral properties, 50% share
of the income was held by the respondent/A1 and 35% share of income
was given to the respondent/A3 and 15% share of income was given to
the respondent/A4. When the respondents/A3 & A4 became an
independent Income Tax Assessee on and from 01.04.2005 and
01.04.2006 respectively filed their respective Income Tax Returns in
their names. A3 and A4 had independent sources of income from their
ancestral properties. A1 had income from his ancestral properties for a
long period. One property was purchased in the name of A2 from the
lawful known sources of income of A1 as gift and the other three
properties were purchased by A3, out of his independent known sources
of income. All the said four properties were borne out by registered
documents, banking transactions and IT Returns. Though A1 to A4 had
separate accounts, income and IT Returns in their respective names,
income of A1 to A4 were shown as joint income by the Investigating
Agency. Suppressing the independent sources of income, the
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investigating agency clubbed the income, cash on hand and expenditure
of A2 to A4 with the income of the first accused.
7. He further submitted that the independent capital of accused 1,
3 and 4 was wrongly included in Item Nos.62,63 and 64 in the
Statement-I and the same reflected in the independent assets acquired by
them, prior to the check period. Property in Item No.55 shown in
Statement-II was purchased by A2 from the gift amount received from
A1 through his lawful sources of income and hence, there is no
possession of disproportionate asset by A2, during the check period.
Except the said Item No.55 in Statement-II, all other movable and
immovable assets were acquired and purchased prior to the check period.
He further submitted that except Items 62,63,64 and 65 in Statement-II
held by A1 during the check period, all other items belonging to A1 were
purchased prior to check period dated 13.05.2006 and no property was
purchased in the name of A1 and A4 during the check period. Items
mentioned in Statement-I are ancestral properties of A1, A3 and A4 and
the same were inherited by A3 and A4, when they were minors and those
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properties were managed by A1. Item No.1 in Statement-III, monthly
salary and pension was wrongly shown as Rs.10,56,502/-. A1 and A3
had jointly obtained loan of Rs.7,00,000/- in their names and repaid the
same at Rs.3,50,000/- each as their respective share of loan and the same
has not been considered in item No.5 of Statement-IV.
8. Learned counsel for the respondents further submitted that A1
had source of monthly income as a Minister of State, monthly pension
and 50% share of income from agricultural lands, bank interest etc., All
the income, purchase of Item No.55 in Statement -II and gift in favour of
his wife/A2 were disclosed in the IT Returns filed by A1. The Income
Tax Authorities have also passed assessment orders. A2 has also
become an Income Tax Assessee for the said property. Apart from Item
No.55, all the movable and immovable properties mentioned in
Statement -II were purchased by A1 and A2 within their known sources
of income, whereas the Investigating Agency stated that all the items
found in Statement-II were acquired by A1 on behalf of A2 to A4,
despite they have independent and separate income derived by them.,
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Except items 62 to 65 all other items in Statement-II were purchased,
prior to check period dated 13.05.2006 and no property was purchased in
the name of A1 during the check period. The gift of money, gold and
articles given by the A2's relatives at the time of marriage, birth of
children and other functions are not the assets of A1. Except A1 and A2
are the parents of A3 and A4, no other material is available to prove the
commission of the alleged offences. The trial court rightly found that the
prosecution had omitted the sources of income of the respondents
through agriculture. The trial court rightly held that the clubbing of
properties of A1 with the properties of A2 to A4 is impermissible.
Hence, the trial court allowed the discharge petitions filed by the
respondents herein.
9. Learned counsel for the respondents/A3 and A4 submitted that
the respondents (A3 and A4) had known sources of income for a long
period prior to the check period. A1 who is the father of A3 and A4 had
acquired several properties in his name from the income derived from the
ancestral agricultural lands, since 1972. On 31.03.2005, there was a
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family arrangement for division of proportionate shares of income from
the ancestral properties and the properties purchased in their name out of
the income from their ancestral properties and the properties of A3 and
A4 were maintained by A1. Since A3 and A4 became independent by
division of shares of proportionate income from the agricultural
properties and properties purchased in their respective names, they
registered them as an independent Income Tax Assessees from
01.04.2005. All the independent income and independent known sources
of income of respective respondents were disclosed in IT Returns filed
by them. Though the respondents/A3 and A4 had separate and
independent income derived by them from their known sources of
income, the Investigating Officer wrongly arrived the value of assets at
Rs.3,26,04,988/-. All the accounts for independent income and
expenditure of A3 and A4 were clubbed together with the income of A1.
The respondents (A3 and A4) have disclosed all known sources of their
income and filed their IT Returns. Neither recovery of money nor
undisclosed wealth was found out from the respondents herein. There is
no evidence available against the respondents/A3 and A4 for being in
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possession of disproportionate assets. The trial court rightly rejected the
petitioner's petition and discharged the respondents from their charges
levelled against them. Hence, he prayed for the dismissal of this criminal
revision petitions.
10. Learned counsel for the respondents further submitted that
when there is no dispute regarding the Income Tax Returns, agricultural
income was not properly accounted for by the prosecution. When the IT
Returns were scrutinized by the officers periodically and order was
passed by the competent quasi-judicial authority, the same cannot be
brushed aside. The trial Court rightly found that no property was
acquired by the respondents during the check period and items 10,12 and
15 mentioned in the Statement-I are ancestral properties of the
respondents and the same were inherited by A3 and A4, which continued
under the management of A1. Further, during the check period, A4 had
sufficient rental income from Item No.15 and he had salary income for a
sum of Rs.3,00,000/- from the year 2007 to 2011. The item 72 in
Statement-II was acquired through agricultural income of 15% from his
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ancestral properties and the same has been reflected in his IT Returns.
Accepting the same, the Income Tax Authorities have also passed the
assessment orders. The prosecution has wrongly included the capital
accounts, which is in the liability side of the balance sheet, after taking
the assets on the assets side of the balance sheet and further omitted the
agricultural income which was scrutinized by competent quasi-judicial
authorities.
11. Heard the learned Additional Advocate General assisted
by the learned Government Advocate (Crl.Side) appearing for the
petitioner, learned Senior Counsel appearing for the respondents/A1 and
A2 and the learned counsel appearing for the respondents/A3 and A4
and perused the materials available on record.
12. The specific case of the prosecution as per the charge sheet
filed before the Special Court is that A1 was the Minister for Revenue
and Prison Department, Government of Tamil Nadu between 13.05.2006
and 31.03.2010. He contested the Assembly Election during 2006 and
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was elected in the Athur Assembly Constituency and sworn in as a
Minister. He completed his five years tenure. When he again contested in
the same Athur Assembly Constituency in the Assembly Elections held
in 2011, he was elected as M.L.A and continued as such, and he is a
public servant as defined under Section 2(c) of the Prevention of
Corruption Act, 1988. A2 is the wife of A1. A3 and A4 are the sons of
A1 and A2. A1 hails from an agricultural family and A2's parents are
not sound enough to extend any financial assistance to A1. A3 is a Law
Graduate and contested the Assembly Elections held during 2011 from
the Palani Assembly Constituency and he was defeated. A3 submitted his
IT Returns from 2007-2008 onwards. A4 is also a B.Com Graduate
living with his parents and now working as Manager in Alamelu Ammal
Mills India Private Limited, Ottupatti near Batlagundu, Dindigul. For the
purpose of this case, the check period was fixed between 13.05.2006 and
31.03.2010. The value of assets stood to the credit of A1 and his family
members at the beginning of the check period as on 13.05.2006 was
Rs.1,17,61,390.65/-. The value of assets stood to the credit of A1 and
his family members at the end of the check period as on 31.03.2010 was
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Rs.3,26,04,988.21/-. Hence, the assets acquired by A1 and his family
members during the said check period were arrived at
Rs.2,08,43,597.56/-. The income of A1 and his family members during
the check period was Rs.1,07,52,621/-. The expenditure incurred by A1
and his family members was Rs.1,00,44,175.60/-. Hence, the savings of
A1 and his family members were Rs.7,08,445.40p. The assets
disproportionate to the known sources of income of A1 and his family
members is Rs.2,01,35,152.16p. Hence, the value of disproportionate
assets is 187.25% and for which A1 and is family members were unable
to account for satisfactorily to the said acquisition of assets.
13. A2 to A4 during the check period, facilitated A1 within the
meaning of Section 107 IPC punishable under Section 109 IPC to
acquire assets in their names which were disproportionate to their known
sources of income of A1 and thereby, A1 to A4 have committed the
offence punishable under Section 13(2) read with 13(1)(e) of the
Prevention of Corruption Act, 1988 and also read with Section 109 IPC.
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14. Investigation disclosed that A1, after acquiring considerable
properties and pecuniary resources derived through unknown sources,
also converted the same in the form of properties and securities in the
name of his family members with their knowledge and consent. By letter
dated 20.06.2012, A1 was called upon to account for the quantum of
properties and pecuniary resources held by him in his name. A1 has
given his explanation on 02.07.2012. The Investigating Officer after
considering the explanation offered by A1 and also the statement
recorded by the Investigating Officer during investigation, came to the
conclusion that A1 was not able to account for his income satisfactorily
for the abovesaid quantum of properties which were found to be
disproportionate and A1 did not have sufficient means and sources of
income to acquire those properties and pecuniary resources. Hence, the
Investigating Officer laid a charge sheet against the accused persons.
After obtaining necessary sanction from the competent authority, the
Investigating Agency laid the charge sheet before the Special Court
namely, Chief Judicial Magistrate-cum-Special Court for the Prevention
of Corruption Act Cases, Dindigul and the same was taken on file in
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Special Case No.27 of 2014. Pending case, the accused have filed the
petitions separately under Section 239 Cr.P.C., to discharge them from
the case. The trial Court after hearing the parties, allowed the petitions
and discharged them from the charges levelled against them. Aggrieved
by the same, the State has preferred these Criminal Revision Petitions.
15. Admittedly, during the relevant point of time, A1 was the
public servant. A2 is the wife of A1. A3 and A4 are the sons of A1. The
Investigating Officer collected the materials and affirmed the opinion
that there is suspected disproportionate assets held by the accused. Once
the Investigating Officer sent the letter dated 20.06.2012 and called for
explanation from A1 annexing the statements 1 to 4, compounding the
details of assets of income and expenditure, the same was acknowledged
by A1 and he offered his explanation on 02.07.2012. The investigating
agency was not satisfied with the accounts of the assets and quantum of
properties held in the name of A1 and his family members, and came to
the conclusion that assets found in the name of A1 and his family
members were disproportionate to known sources of income. The
Investigating Officer considering the same, held that A1 has not
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satisfactorily accounted for the assets which were disproportionate to his
known sources of income. On a perusal of the materials, it is clear that
A1 was given sufficient opportunity to offer his explanation. During the
check period between 13.05.2006 to 31.03.2010, the accused being the
public servant, abused his official position for obtaining pecuniary
advantage, thereby attracting Section 13(1)(e) of the Prevention of
Corruption Act. In this context, it becomes essential to advert to Section
13(1)(e) of the Prevention of Corruption Act, which defines criminal
misconduct by a public servant.
“ Section: 13: Criminal misconduct by a public
servant:-
(1)....
(a) ...
(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 disproportionate to his known sources of
income.”
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Explanation: For the purpose 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.
As per explanation to Section 13(1)(e) of PC
Act, receipt of any known source of income has to be
intimated in accordance with the provisions of law. As
a public servant, A1 is accountable for his income and
assets and liabilities.
16. The principal contention advanced by the learned senior
counsel for the respondents is that the methodology adopted by the
prosecution in establishing the allegation of disproportionate assets is
fundamentally flawed. It is contended that the inclusion of properties
standing in the names of A2 to A4 within the fold of A1’s assets is
legally untenable. It is submitted that A1 cannot be held liable for
properties owned by individuals over whom he exercises no ownership
or control, particularly when such properties were acquired from their
independent and legitimate sources of income. The Investigating Officer,
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without any cogent evidence demonstrating that the properties standing
in the names of A2 to A4 were procured out of the income of A1,
improperly attributed the said properties to A1. The Trial Court, upon a
detailed appreciation of the evidence, also recorded a finding that the
prosecution, in an attempt to artificially inflate the expenses and
exaggerate the extent of disproportionate assets, unjustifiably clubbed
the properties of A2 to A4 with those of A1. In this context, it is apposite
to refer to the meaning of the expression "known sources of income," as
elucidated by the Hon’ble Supreme Court in C.S.D. Swami v. State of
Andhra Pradesh [AIR 1960 SC 7], wherein it was observed as follows:
(1) C.S.D.Swami –Vs- State reported in AIR 1960 SC 7
Now, the expression " known sources of income "
must have reference to sources known to the
prosecution on a thorough investigation of the case.
It was not, and it could not be, contended that "
known sources of income " means sources known to
the accused. The prosecution cannot, in the very
nature of things, be expected to know the affairs of
an accused person. Those will be matters " specially
within the knowledge" of the accused, within the
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meaning of s. 106 of the Evidence Act. The
prosecution can only lead evidence, as it has done in
the instant case, to show that the accused was known
to earn his living by service under the Government
during the material period.
(2) State of Maharastra -Vs– Wasudeo Ramachandra
Kaidalwar reported in 1981 (3) SCC 199
“The provisions of section 5(3) have been subject of
judicial interpretation. First the expression "known
sources of income" in the context of s.5(3) meant
"sources known to the prosecution".”
(3) State of M.P. v. Awadh Kishore Gupta reported in (2004)
1 SCC 691
..Clause (e) of sub-section (1) of section 13
corresponds to clause (e) of sub-section (1) of
section 5 of the Prevention of Corruption Act,
1947 (referred to as 'Old Act'). But there has
been drastical amendments. Under the new
clause, the earlier concept of "known sources of
income" has undergone a radical change. As
per the explanation appended, the prosecution
is relieved of the burden of investigating into
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"source of income" of an accused to a large
extent, as it is stated in the explanation that
"known sources of income" mean income
received from any lawful source, the receipt of
which has been intimated in accordance with
the provisions of any law, rules orders for the
time being applicable to a public servant. The
expression "known sources of income" has
reference to sources known to the prosecution
after thorough investigation of the case. It is
not, and cannot be contended that "known
sources of income" means sources known to the
accused. The prosecution cannot, in the very
nature of things, be expected to know the affairs
of an accused person. Those will be matters
"specially within the knowledge" of the accused,
within the meaning of Section 106 of the Indian
Evidence Act, 1872 (in short the 'Evidence Act').
The phrase "known sources of income" in
section 13(1)(e) {old section 5(1)(e)} has
clearly the emphasis on the word "income". It
would be primary to observe that qua the public
servant, the income would be what is attached
to his office or post, commonly known as
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remuneration or salary. The term "income" by
itself, is elastic and has a wide connotation.
Whatever comes in or is received, is income.
But, however, wide the import and connotation
of the term "income", it is incapable of being
understood as meaning receipt having no nexus
to one's labour, or expertise, or property, or
investment, and having further a source which
may or may not yield a regular revenue. These
essential characteristics are vital in
understanding the term "income". Therefore, it
can be said that, though "income" is receipt in
the hand of its recipient, every receipt would
not partake into the character of income. Qua
the public servant, whatever return he gets of
his service, will be the primary item of his
income. Other incomes which can conceivably
are income qua the public servant, will be in the
regular receipt from (a) his property, or (b) his
investment. A receipt from windfall, or gains of
graft, crime, or immoral secretions by persons
primafacie would not be receipt from the
"known sources of income"of a public
servant.
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Crl.R.C.Nos.110 to 113 of 2018.
In the present case, it is undisputed that a notice was issued to the first
accused, providing him with an opportunity to explain the
disproportionate assets. The first accused did submit an explanation in
response. However, this explanation was deemed unsatisfactory. The
issue of whether the properties in question were acquired by the first
accused or are independent properties of the respondents is a matter that
can only be resolved through a comprehensive evaluation of the evidence
during the trial, and not at the stage of discharge. Given that the
explanation provided was insufficient, the case was allowed to proceed.
17. It is settled proposition of law that at the time of framing
charges, the Court has to see the final report filed by the prosecution and
the materials viz. statement of witnesses and also documents collected by
the prosecution during investigation and if the same prima facie reveals
that there is sufficient materials to proceed with the case further and the
Court has to frame charges against the accused. Further at the time of
framing charges, the Court has to look into the materials produced by the
prosecution and not the defence taken by the accused or the documents
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Crl.R.C.Nos.110 to 113 of 2018.
relied upon by the accused. Further the Court cannot go into probative
value of the materials produced by the prosecution and validity and
veracity of the same cannot be examined at the stage of framing charges,
which can only be done during trial.
18. However, the Special Court wrongly came to the conclusion
without any evidence on record that the respondents/A1 to A4 would
have earned more income than that shown in the documents produced by
the Investigating Officer and that the Special Court has not followed the
principles laid down by the Honourable Supreme Court of India in
"Superintendent and Remembrance of legal affairs, West Bengal-Vs-
Anilkumar Bhunja" (1979 SCC (Crl) 1038).
19. In the present case, it is seen from the order passed by the
learned Special Court, while discharging the accused, that the learned
Judge extensively discussed the income of the accused and found that
there was no disproportionate income in relation to the known sources of
income. From the abovesaid decision of the Hon'ble Supreme Court, at
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Crl.R.C.Nos.110 to 113 of 2018.
the stage of framing charges, if the materials placed before the trial
Court, lead the Court to form an opinion regarding the existence of
factual ingredients constituting the alleged offence, it may testify the
framing of charges against the accused in respect of commission of
offence.
20. The Hon'ble Supreme Court in the case of State of
Madhyapradesh Vs. Mohanalal Soni reported in 2001 MLJ Crl. 60,
held that at the stage of framing of charge, the Court has to prima facie
consider whether there is sufficient materials available for proceedings
against the accused and the Court is not required to appreciate the
evidence to conclude whether the materials produced by the prosecution
are sufficient to convict the accused. If the Court is satisfied that prima
case is made out for proceeding further, then charges have to be framed.
Further, in the case of State (NCT of Delhi) Vs. Shiv Charan Bansal
And Others reported in (2020) 2 SCC 290 in paras 38, 39 and 40, it is
held as follows:
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38. At the stage of framing charges under
Section 227 and Section 228 Cr.P.C, the Court is
required to consider whether there was sufficient
material on record to frame charges against Shiv
Charan Bansal, Shailendra Singh, Lalit Mann and
Rajbir Singh. The prosecution alleged that the
offences under Section 120-B, Section 302 read with
Sections 120-B/34, Section 201 IPC and Section 25 of
the Arms Act ought to have been framed.
I. Scope of Section 227 and 228 of the Cr.P.C.
39. The Court while considering the
question of framing charges under Section 227 Cr.P.C
has the power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima
facie case has been made out against the accused. The
test to determine prima facie case would depend upon
the facts of each case. If the material placed before
the court discloses grave suspicion against the
accused, which has not been properly explained, the
court will be fully justified in framing charges and
proceeding with the trial. The probative value of the
evidence brought on record cannot be gone into at the
stage of framing charges. The Court is required to
evaluate the material and documents on record with a
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Crl.R.C.Nos.110 to 113 of 2018.
view to find out if the facts emerging therefrom taken
at their face value disclose the ingredients
constituting the alleged offence. At this stage, there
cannot be a roving enquiry into the pros and cons of
the matter, the evidence is not to be weighed as if a
trial is being conducted. Reliance is placed on the
Judgment of this Court in State of Bihar v. Ramesh
Singh1 where it has been held that at the stage of
framing charges under Sections 227 or 228 Cr.P.C., if
there is a strong suspicion which leads the Court to
think that there is ground for presuming that the
accused had committed the offence, then the Court
should proceed with the trial.
40. In a recent Judgment delivered in
Dipakbhai Jagdishchandra Patel v. State of Gujarat
and Another decided on 24.04.2019, this Court has
laid down the law relating to framing of charges and
discharge, and held that all that is required is that the
court must be satisfied with the material available,
that a case is made out for the accused to stand trial.
A strong suspicion is sufficient for framing charges,
which must be founded on some material. The
material must be such which can be translated into
evidence at the stage of trial. The veracity and effect
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Crl.R.C.Nos.110 to 113 of 2018.
of the evidence which the prosecutor proposes to
adduce are not to be meticulously judged at this stage,
nor is any weight to be attached to the probable
defence of the accused at the stage of framing
charges. The court is not to consider whether there is
sufficient ground for conviction of the accused, or
whether the trial is sure to end in the conviction.''
21. At the time of considering the petition under Section 239
Cr.P.C, the Court has to see the materials which have been brought on
record by the prosecution. At the time of framing charges, the Court has
to accept the case of the prosecution and the materials produced by the
prosecution as true. The Court has to give an opportunity to the
prosecution to substantiate the charges by examining the witnesses and
by marking the documents. After giving opportunity, if the prosecution is
not able to substantiate the materials, the accused are entitled for
acquittal. Therefore, at the stage of framing of charges, the Court cannot
interpret the materials collected by the Investigating Agency in its own
way and it has to allow the prosecution to lead the evidence to
substantiate the charges levelled against the accused. The Hon'ble
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Crl.R.C.Nos.110 to 113 of 2018.
Supreme Court laid down the principle that the trial Court is barred from
looking into any materials including the documents produced by the
defence available in the report filed by the prosecution under Section 173
Cr.P.C., at the stage of framing charges and should not testify the
veracity of the documents which are premature and prior to trial.
22. The Special Court failed to consider the following
principles laid down by the Honourable Supreme Court of India in
"State of Maharashtra-Vs-Somnath Thapa" (AIR 1996 SC Page
1744).
"It is apparent that at the stage of framing the
charges, probative value of the materials on record cannot
be gone into and the material brought on records by the
prosecution has to be accepted as true at that stage".
23. The Speical Court went wrong in discharging the
respondents/A1 to A4 against law and contrary to the following dictum
issued by the Honourable Supreme Court of India in
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Crl.R.C.Nos.110 to 113 of 2018.
(i) "State of Tamil Nadu-Vs-Narayanan and another" (2000
SAR (Crl) Page 100 (SC)).
"It appears that the Court went on elaborate examination of
statements recorded during investigation and formed an opinion after
scanning and shaping of the same which was not warranted under law".
(ii) In "State of Madhya Pradesh-Vs-Mohanalal Soni" (2001
MLJ Crl.60).
"At the stage of framing of charges, the Court has to
prima-facie consider whether there is sufficient ground for
proceeding against the accused. The Court if not required to
appreciate the evidence to conclude whether the materials
produced are sufficient or not to convict the accused. If the Court
is satisfied that prima facie case is made out for proceeding
further, then charges have to be framed".
24. Further, the actual assets possessed in the names of
respondents/A2 to A4 and the income derived in their names during the
check period were fully and duly taken into consideration by the
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Crl.R.C.Nos.110 to 113 of 2018.
Investigating Officer while assessing the proportionality of the assets and
the trial Court failed to consider the following principles laid down in
"P.Nallammal & Others-Vs-State of Tamil Nadu" (1999 SAR 804).
"Legislative intent is manifest that abettors of all the difference
offences u/s. 13(1)(e) of the P.C. Act-1988 should also be dealt along
with the public servant in the same trial held by the Special Judge".
25. Once the prosecution finds that the family members of the
public servant abetted the public servant to acquire disproportionate
assets, all of them should be tried together. In this regard, the Hon'ble
Supreme Court stated supra, held that if a non-public servant has abetted
any of the offences which the public servant commits, such non-public
servant is also liable to be tried along with the public servant.
26. Further, it is settled proposition of law that, mere filing of
Income Tax Returns before the Income Tax Authorities cannot be a basis
to put to hold that the respondents earned the income from the lawful
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Crl.R.C.Nos.110 to 113 of 2018.
sources. If the Income Tax Returns filed by the respondents herein, are
found to have been accepted summarily, the Income Tax Authority did
not make any probe as to whether the respondents had actually derived
the income as shown in the Income Tax Returns. In this regard, it is
useful to refer the decision of the Hon'ble Supreme Court of India in the
case of State of Tamil Nadu vs. N.Suresh Rajan and Others reported in
(2014) 11 SCC 709 and the relevant portion is extracted hereunder:
“The property in the name of an income tax
assessee itself cannot be aground to hold that it
actually belongs to such an assessee. In case this
proposition is accepted, in our opinion, it will lead to
disastrous consequences. It will give opportunity to the
corrupt public servants to amass property in the name
of known persons, pay income tax on their behalf and
then be out from the mischief of law.”
Mere filing of Income Tax Returns may not be the sole ground to
discharge the respondents that they have accounted for the known
sources of income.
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Crl.R.C.Nos.110 to 113 of 2018.
27. Further, the Hon'ble Supreme Court in its judgment in the case
of State of Karnataka Vs. J.Jayalalitha reported in (2017) 6 SCC 263
has held as follows:
“190. The decision is to convey that though the IT
returns and the orders passed in the IT proceedings
in the instant case recorded the income of the
accused concerned as disclosed in their returns, in
view of the charge levelled against them, such
returns and the orders in the IT proceedings would
not by themselves establish that such income had
been from lawful source as contemplated in the
Explanation to Section 13(1)(e) of the PC Act, 1988
and that independent evidence would be required
to account for the same.
191. Though considerable exchanges had
been made in course of the arguments, centring
around Section 43 of the Evidence Act, 1872, we
are of the comprehension that those need not be
expatiated in details. Suffice it to state that even
assuming that the income tax returns, the
proceedings in connection therewith and the
decisions rendered therein are relevant and
admissible in evidence as well, nothing as such,
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turns thereon definitively as those do not furnish
any guarantee or authentication of the lawfulness
of the source(s) of income, the pith of the charge
levelled against the respondents. It is the plea of
the defence that the income tax returns and orders,
while proved by the accused persons had not been
objected to by the prosecution and further it
(prosecution) as well had called in evidence the
income tax returns/orders and thus, it cannot
object to the admissibility of the records produced
by the defence. To reiterate, even if such returns
and orders are admissible, the probative value
would depend on the nature of the information
furnished, the findings recorded in the orders and
having a bearing on the charge levelled. In any
view of the matter, however, such returns and
orders would not ipso facto either conclusively
prove or disprove the charge and can at best be
pieces of evidence which have to be evaluated
along with the other materials on record.
Noticeably, none of the respondents has been
examined on oath in the case in hand. Further, the
income tax returns relied upon by the defence as
well as the orders passed in the proceedings
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Crl.R.C.Nos.110 to 113 of 2018.
pertaining thereto have been filed/passed after the
charge-sheet had been submitted. Significantly,
there is a charge of conspiracy and abetment
against the accused persons. In the overall
perspective therefore neither the income tax
returns nor the orders passed in the proceedings
relatable thereto, either definitively attest the
lawfulness of the sources of income of the accused
persons or are of any avail to them to satisfactorily
account the disproportionateness of their
pecuniary resources and properties as mandated
by Section 13(1)(e) of the Act.
192. A Constitution Bench of this
Court in Iqbal Singh Marwah v. Meenakshi
Marwah [Iqbal Singh Marwah v. Meenakshi
Marwah, (2005) 4 SCC 370 : 2005 SCC (Cri)
1101] in this context had ruled that there is neither
any statutory provision nor any legal principle that
the findings recorded in one proceeding may be
treated as final or binding on the other as both the
cases have to be decided on the basis of the
evidence adduced therein.
......
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Crl.R.C.Nos.110 to 113 of 2018.
196. This Court ruled that the fact that
the accused, other than the two Ministers, had been
assessed to income tax and had paid income tax
could not have been relied upon to discharge the
accused persons in view of the allegation made by
the prosecution that there was no separate income
to amass such huge property. It was underlined
that the property in the name of the income tax
assessee itself cannot be a ground to hold that it
actually belongs to such an assessee and that if this
proposition was accepted, it would lead to
disastrous consequences. This Court reflected that
in such an eventuality it will give opportunities to
the corrupt public servant to amass property in the
name of known person, pay income tax on their
behalf and then be out from the mischief of law.
28. As far as the false case that has been foisted against the
accused with mala-fide intention on the ground of political vendetta is
concerned, once the Investigating Officer fixed the check period and
conducted the investigation and collected the materials and has given an
opportunity to A1/the public servant, and after getting an explanation and
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Crl.R.C.Nos.110 to 113 of 2018.
not being satisfied with the explanation, obtained sanction for
prosecution from the competent authority, and filed the charge sheet. At
this stage, the Court has to see the materials produced by the prosecution
as to whether prima-facie materials are available to proceed with the case
further or not. Therefore, at this stage, the allegation of mala-fide against
the informant are of known consequences and cannot by itself be the
basis for discharging the accused.
29. On a reading of the materials produced by the petitioner and
also the grounds taken by the petitioner and the impugned order passed
by the trial Court, this Court finds that the trial Court traversed beyond
the scope of Section 239 Cr.P.C., and went to the extent of conducting
roving enquiry and also evaluating the probative value of the materials
and interpreted the documents in its own way and discharged the
respondents which is perverse. As discussed above and on a reading of
the entire records, this Court finds that, prima facie materials are
available to frame the charges and proceed with the case further.
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Crl.R.C.Nos.110 to 113 of 2018.
30. There is no quarrel with the proposition of law laid down by
the Hon'ble Supreme Court in the decisions relied upon by the learned
Senior Counsel for the respondents/accused, but the facts of those cases
are distinguishable, which are not applicable to the facts of the present
case on hand, rather the decisions relied upon by the prosecution are
squarely applicable to the present case.
31. The Special Court without framing of charges and giving
opportunity to the prosecution to substantiate their charge, simply
discharged the respondents/accused on the ground of technicality and
also interpreted the facts in its own way, which warrants interference. In
this case, the learned Special Judge failed to consider the case of the
prosecution and materials produced along with the charge sheet under
Section 173 Cr.P.C, and proposition of law laid down by the Hon'ble
Supreme Court and traversed beyond the scope of Section 239 Cr.P.C.,
by discharging the respondents herein/accused. Hence, the impugned
order passed by the Special Court is perverse and the same is liable to be
set aside.
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Crl.R.C.Nos.110 to 113 of 2018.
32. Accordingly, the Criminal Revision Petitions are allowed. The
Special Court is directed to frame charges and proceed with the case in
accordance with law. Further since the check period is between 2006 and
2010 and considering the scope and object of constitution of the Special
Court for dealing the cases of MP and MLAs, the Special Court is
directed to dispose of the case within a period of six months from the
date of receipt of a copy of this order by conducting trial on day to day
basis.
28.04.2025
mfa
Index:Yes/No
Speaking Order: Yes/No
Neutral Citation: Yes/No
To
1. The Chief Judicial Magistrate cum Special Judge for Prevention of
Corruption Act Cases,
Dindigul.
2. The Public Prosecutor,
High Court, Chennai.
Copy to:
1. The Section Officer, ER Section, Madras High Court.
2. The Section Officer, Criminal Section, Madras High Court.
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Crl.R.C.Nos.110 to 113 of 2018.
P.VELMURUGAN, J
mfa
Pre-delivery order made in
Crl.R.C.(MD)Nos.110 to 113 of 2018
28.04.2025
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