State Through Lokayukta Police, Gulbarga v. Nagendra
2013-02-05
ANAND BYRAREDDY
body2013
DigiLaw.ai
JUDGMENT Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondents. The State through the Lokayukta Police, is before this Court questioning the acquittal of the respondent for offences punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act' for brevity). 2. The case of the prosecution was that the accused who was working as a Senior Assistant in the Food and Civil Supplies Department at Gulbarga, was possessed of wealth disproportionate to his known sources of income and on the basis of information received to that effect, the Deputy Superintendent of Police, Karnataka Lokayukta, Gulbarga, had collected a source report and had obtained a search warrant and conducted the raid with the assistance of his colleagues and according to the prosecution, had unearthed wealth worth Rs. 20,30,243.95/- in the possession of the accused for which he did not have a satisfactory account. On the strength of the complaint made by him, a case was registered for offences as aforesaid and after further investigation conducted, statements of several witnesses were recorded and documentary evidence was also collected. The check period was from 7.1.1985 to 5.3.2002 and after verifying the statement of assets and liabilities and the income returns submitted by the accused, it was concluded that the accused was possessing assets worth Rs. 21,39,973.70/- and the estimated expenditure of the check period was Rs. 10,10,834.55/- as against his known source of income of Rs. 11,20,564.30/- and therefore, was found to be possessing disproportionate wealth of Rs. 20,30,243.95/-. It was about 181.18% excess wealth, over the known sources of income. Accordingly, sanction for prosecution of the accused was obtained from the Managing Director, Karnataka Food and Civil Supplies Corporation Limited, and a charge-sheet was filed against the accused. The court thereafter having taken cognizance of the offences, had issued summons and secured his presence. He was released on bail. Subsequently, charges were framed against the accused. The accused having pleaded not guilty and having claimed to be tried, the matter went to trial. The prosecution examined PWs 1 to 25 and marked Exhibits P1 to P181.
The court thereafter having taken cognizance of the offences, had issued summons and secured his presence. He was released on bail. Subsequently, charges were framed against the accused. The accused having pleaded not guilty and having claimed to be tried, the matter went to trial. The prosecution examined PWs 1 to 25 and marked Exhibits P1 to P181. The accused in his defence had contended that the wealth legitimately possessed by his family members has been included in the assets attributed to the accused and therefore, the wealth disclosed is inflated beyond recognition and it is this which is sought to be alleged as being wealth acquired by him beyond the known sources of income. 3. On the basis of the evidence and the contentions of the parties, the court below had framed the following points for consideration: 1. Whether prosecution proves that there is legal and valid sanction for prosecution of the accused as required under Section 19 of the Prevention of Corruption Act, 1988? 2. Whether prosecution proves beyond all reasonable doubt that accused being public servant working as Senior Assistant in Food and Civil Supplies Department at Gulbarga, during his service from 7.10.1985 to 5.3.2002 was found in possession of wealth of Rs. 20,30,243.95 paise disproportionate to his known source of income and thereby committed an offence punishable under Section 13(1)(e) of Prevention of Corruption Act, 1988? 3. Whether prosecution further proves beyond all reasonable doubt that the accused being public servant as Senior Assistant, Food and Civil Supplies Department, during his service from 7.10.1985 to 5.3.2002 had amassed wealth disproportionate to his known source of income and committed an offence of criminal misconduct punishable under Section 13(2) of Prevention of Corruption Act, 1988? 4. What order? The court below has answered Point No. 1 in the affirmative, Point Nos. 2 and 3 in the negative and has acquitted the accused. It is that which is under challenge in the present appeal. 4.
4. What order? The court below has answered Point No. 1 in the affirmative, Point Nos. 2 and 3 in the negative and has acquitted the accused. It is that which is under challenge in the present appeal. 4. The learned Special Public Prosecutor appearing for the Lokayukta would primarily contend that the court below has, in its judgment, merely recounted the statements made by the several witnesses from Paragraph 16 to Paragraph 43 and thereafter, in a brief summing up, has held that the prosecution had not made out a case beyond all reasonable doubt, particularly referring to the evidence of PW-25, the Investigating Officer, who has admitted the several documents produced on behalf of the accused to substantiate the contention that the wealth possessed by his family members standing in their names if taken into account as their own property, it would not sustain the case of the prosecution, and has thought it fit to dismiss the case of the prosecution and acquit the accused. The learned counsel would submit that the offence alleged against the accused was one punishable under Section 13(1)(e) of the PC Act. Therefore, it is not only the wealth possessed by the accused, but wealth held on behalf of the accused by others, which would also be relevant. Even if the wealth possessed by the father and brother of the accused is eschewed, the fact that the accused claimed certain properties and other assets standing in the name of his wife as her own property, was required to be established by the appellant to the satisfaction of the court. In this regard, he would point out that the evidence as to the income of the wife of the accused is relevant in addressing whether she could have possibly acquired those properties. As evident from the material on record, the income tax returns filed by the wife of the accused is only from the year 1999. However, it is to be seen that she has acquired assets well prior to 1999 and it was incumbent on the accused to have established that she had income which enabled her to acquire such assets. Insofar as the income attributed to the wife of the accused is concerned, it was stated that she had agricultural income.
However, it is to be seen that she has acquired assets well prior to 1999 and it was incumbent on the accused to have established that she had income which enabled her to acquire such assets. Insofar as the income attributed to the wife of the accused is concerned, it was stated that she had agricultural income. However, the only evidence produced insofar as the agricultural income of the wife of the appellant, were receipts issued by the Agricultural Produce Marketing Committee, Marketyard, in relation to certain fruits and vegetables, but the claim was that there were other cereals and foodgrains grown by her in respect of which there is no material forthcoming. Hence, the mere say that she enjoyed agricultural income, is not established by material on record. Secondly, it is contended that she was earning money through tuitions conducted for students. It is not on record as to the qualifications which the wife of the accused possessed, in order to be able to conduct tuitions. Secondly, the number of students whom she had taught over the years and the fees that she was charging for the students over the years, is also not known. The contention that the income tax returns being filed from the year 1999 was on account of the fact that she had no taxable income prior to the said period, is material in considering whether she could have indeed acquired those properties when she had income much below the taxable limit. Further, it was also claimed that she was a partner in an industry which was being run by the partnership firm known as Akrosh Enterprises. There is no material produced as to the manner in which the said firm had established the newspaper and the source of income for the establishment of the newspaper, or rather the contribution made by the wife of the accused as a partner to the said firm and the manner in which it had acquired assets to run the industry. So also, the acquisition of other movables such as cars and other assets possessed by the wife of the accused were not shown to have been acquired through established sources of income.
So also, the acquisition of other movables such as cars and other assets possessed by the wife of the accused were not shown to have been acquired through established sources of income. The learned counsel would therefore submit that the law is well-settled as to a person accused of an offence punishable under Section 13(1)(e), is required to discharge the burden of proof of the manner in which other family members have acquired assets, which would otherwise be presumed to be acquired by the accused in the name of the family members. Hence, the court below having glossed over this crucial aspect of the matter, whereby the defence set up that the family members of the accused had their own assets and income which has been lumped with that of the accused in order to establish that he possessed wealth beyond his known sources of income, was clearly an aspect which has not been demolished by the accused by leading express evidence in this regard, nor has the evidence of the prosecution been diluted at the trial nor held that the prosecution had not established its case against the accused and others, possessing wealth beyond the known sources of income of the accused. He would place reliance on the decision of the Apex Court in the case of K. Poonuswamy Vs.
He would place reliance on the decision of the Apex Court in the case of K. Poonuswamy Vs. State of Tamilnadu by Inspector of Police, Directorate of Vigilance and Anti Corruption South Range, Trichy, AIR 2001 SC 2464 , in support of the proposition that, in terms of Sections 3 and 114 of the Indian Evidence Act, 1872, the court would presume the existence of certain facts which are likely to have happened, having regard to the natural course of events in relation to the facts of the case and on such presumption, it cannot be said that the matter has not been proved and therefore, the relationship of husband and wife not being denied and in the absence of any evidence as to the actual income earned by the wife of the accused prior to her filing the tax returns' and prior to the acquisition of assets, it cannot be said that the acquisitions are out of income of the wife and the presumption can only be that it was money supplied by the accused, not only to establish the newspaper which was said to have been run by the partnership firm of which his wife was a partner, but other sources of income claimed by the wife have not been proved as required in law. Hence, the presumption would be against the accused. Secondly, the counsel also places reliance on the case of State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, (2004) CriLJ 598 , to contend that the phrase 'known sources of income' in Section 13(1)(e), clearly places on the word 'income', which 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 remuneration or salary and it is for the accused to account for the wealth that he possesses and he is required to satisfactorily account for the same. In this regard, the burden is cast on the accused that his explanation is worthy of acceptance. In other words, insofar as the defence that the wealth possessed by the father, brother or wife of the accused ought not to have taken into account.
In this regard, the burden is cast on the accused that his explanation is worthy of acceptance. In other words, insofar as the defence that the wealth possessed by the father, brother or wife of the accused ought not to have taken into account. It would be for the accused to establish that such incomes were available and therefore, because other persons, at least the wife of the accused was capable of acquiring properties from the income that she had and it was incumbent on the accused to establish the income that his wife was earning before she accounted for her income, by filing income tax returns. In this regard, the learned counsel would submit that the Trial Court has committed a cardinal lapse in not having addressed this aspect of the matter and therefore, seeks that the accused be convicted, as the prosecution has established its case beyond all reasonable doubt. 5. The learned counsel for the respondent-accused on the other hand would submit that if it is to be presumed that the assets which are shown to stand in the name of the wife, the brother and father of the accused are eschewed in addressing the wealth possessed by the accused, no case would be made out against the accused. As the prosecution does not seriously press the assertion that the assets standing in the name of the father and brother of the accused, should also be included in that of the wealth of the accused and since the emphasis is only with regard to the wealth possessed by the wife of the accused, it is necessary for this Court to address whether there was material on record which was not disputed by the prosecution, which could satisfactorily explain the manner in which such wealth had been acquired by the wife of the appellant. In this regard, he would draw attention to the several exhibits, namely Exhibits P83 to P-92 which are all documents that are marked by the prosecution itself in relation to the income and assets of the appellant's wife. It cannot be said that that the income tax returns filed by the wife of the accused would not reflect the income-received by her.
It cannot be said that that the income tax returns filed by the wife of the accused would not reflect the income-received by her. Therefore, the period of time prior to her filing income tax returns is the only grey area according to the prosecution, which the wife of the accused or the accused would have to establish before the court to satisfactorily explain the manner in which assets possessed in the name of the wife of the accused was acquired. The Trial Court has referred to the evidence of the several witnesses for the prosecution, particularly of PW-25, who was the Investigating Officer. Admissions have been elicited from the said witness as to the documents produced in support of the income and acquisitions of the wife of the accused. The fact that she was a qualified teacher and holding a post-graduate degree in Arts and Education, was spoken to by at least three witnesses. Though they were not in a position to state the amount of fees that she was charging per student, a list of such students whom she had taught over the years, has been produced and it is almost 300 students, which could have been verified by the prosecution. The fact that she had taught them over the years for varying tuition fees not being placed on record, can be attributed to the difficulty of covering the entire check period when it was not maintained as a matter of record, as she was offering private tuitions. Consequently, the fact that she was a partner of Akrosh Enterprises which was running a newspaper, was constituted in the year 1998 as per the registered partnership deed which speaks about the contribution made by the wife of the accused. The same is a nominal contribution and since the accounts of the said firm are audited and tax returns are filed over the years, it cannot be said that there was illegal income of the firm contributed by the accused. It was for the prosecution to have established that it was illegal income.
The same is a nominal contribution and since the accounts of the said firm are audited and tax returns are filed over the years, it cannot be said that there was illegal income of the firm contributed by the accused. It was for the prosecution to have established that it was illegal income. The fact that the constitution of the firm was placed on record and the actual contribution made by the wife of the accused as a partner was also on record, the subsequent manner in which the firm has acquired funds to run the newspaper would be a matter of record, which was not relevant insofar as the allegation that the accused had contributed the funds over the years. It was always possible for the prosecution to have positively established that there was such contribution by the accused. The wife of the accused has candidly stated that she had no taxable income prior to her commencing to file the tax returns, but whatever income that she had was adequate to have acquired the assets which stand in her name. The same having been acquired prior to 1998, as seen from the source report as well as other documents produced, the properties acquired are not substantial, in that, the properties are worth not more than Rs. 31,000/- and the least is about Rs. 23,000/-. The total acquisitions do not exceed Rs. 2,00,000/-. Therefore, the savings and earnings of the wife of the accused was adequate to have acquired those properties. The wife of the accused has also produced her bank accounts, which would disclose the income that she had, over a period of time. This is not seriously disputed and in fact, PW-25 has admitted that the same are records of the bank accounts of the wife of the accused. Therefore, the learned counsel would contend that the burden of proof insofar as the wife of the accused being possessed of adequate income to have acquired the properties that stand in her name being established and if the same are eschewed from the list of assets that are attributed to the accused and similarly, if the assets shown in the name of the brother and father of the accused are eschewed, there is no case whatsoever made out by the prosecution.
Hence, the Trial Court having acquitted the accused, is in order and there is no warrant for interference on the grounds now raised by the State in the present appeal. Given the above rival contentions, the Trial Court has opined that the material produced by the prosecution itself is adequate to dislodge the case of the prosecution insofar as the wealth of the accused being disproportionate to his known sources of income. This reasoning of the Trial Court is primarily with reference to admissions made by PW-25 who was the Investigating Officer who has practically admitted all the documents that are available to disclose the assets and wealth attributed to the accused as being the properties belonging to not only the wife of the accused but also the brother and father of the accused. It is on that primary reasoning that the court below has made short shrift of the case of the prosecution. The learned counsel for the appellant, seeking to assert that it cannot be said that the accused had discharged the burden of proving and satisfactorily explaining to the court the wealth allegedly possessed by the accused, as not belonging to him alone and that it ought to be taken into account that the assets and properties were legitimately acquired by the wife, brother and father of the accused, has been accepted by the Trial Court. From a close examination of the material on record and having regard to the inordinately long check period that has been taken into account, in seeking to make out a case against the accused and the material that is placed on record, would indicate that the accused had adequately explained with reference to the material made available by the prosecution itself that the wealth was acquired legitimately by the wife and relatives of the accused and could not be attributed to the accused. The reasoning therefore of the court below in holding that the prosecution had not established its case beyond all reasonable doubt, cannot be faulted.
The reasoning therefore of the court below in holding that the prosecution had not established its case beyond all reasonable doubt, cannot be faulted. Insofar as the decisions relied upon by the learned counsel for the appellant is concerned, in Poonuswamy's case, the Supreme Court while taking note of the ratio laid down in AIR 1977 SC 796 , wherein a particular transaction being alleged as being benami would necessarily cast the burden on the person asserting the same and has opined that there can be no dispute with the legal proposition laid down therein. But however, has proceeded to address the meaning of 'proved' as evident from Section 3 of the Evidence Act and the rule that under Section 114 of the Evidence Act, the court may presume the existence of certain facts and has held, thus the fact would be proved when after considering the matters before it, the court believes it to exist or considers its existence so probable that a prudent-man ought, under the circumstances of the particular case, to act upon the supposition that it exists and the court in arriving at such a decision, may presume the existence of any fact which it thinks likely to have happened having regard to the natural course of events, human conduct, public and private business in relation to the facts of each case. This, the learned counsel for the appellant seeks to press into service, to contend that the appellant's wife having commenced to file her income tax returns only with effect from the year 1999, it should be presumed that whatever acquisitions have been made by her prior thereto were not proved and hence, the court must presume that the acquisitions were only with the aid of funds provided by the accused, and therefore, the acquisition has not been satisfactorily explained in order to hold that the prosecution has established its case beyond all reasonable doubt. This may not be tenable, as there is adequate material on record to indicate that the wife was also engaged in several activities and had the income though not taxable income, even prior to her filing tax returns from the year 1999.
This may not be tenable, as there is adequate material on record to indicate that the wife was also engaged in several activities and had the income though not taxable income, even prior to her filing tax returns from the year 1999. Insofar as the second decision, namely in the case of State of Madhya Pradesh vs. Awadh Kishore Gupta and others is concerned, the court having held that the burden of proof for an offence punishable under Section 13(1)(e) of the PC Act would lie on the accused to satisfactorily account for the income and wealth that the accused possessed, has been adequately discharged in the present case on hand. Therefore, no sustenance can be drawn from those decisions. Consequently, having regard to the material available on record, the evidence of the prosecution and the explanation offered by the accused have led the court below to acquit the accused, as the prosecution had failed to prove its case beyond all reasonable doubt. This court would also agree with the reasoning of the court below for the reasons stated hereinabove. Accordingly, the appeal is dismissed.