ORDER : The petitioner is the sole accused in C.C.No.52 of 2011 on the files of the Court of the Special Judge (SPE/CBI), Thiruvananthapuram. He is indicted with the offences punishable under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. 2. The petitioner filed Crl.M.P.No.35 of 2012 seeking discharge. That application was dismissed by the Special Court as per the order dated 27.08.2012. He filed the Crl.M.C. under Section 482 of the Code of Criminal Procedure, 1973 (Code) challenging the said order and to hold that the final report was filed against him without any grounds. While the Crl.M.C. was pending consideration, the Special Court framed charge against the petitioner on 25.02.2019. Seeking to set aside the said charge, Crl.R.P.No.493 of 2019 was filed by the petitioner invoking the provisions of Section 397 read with Section 401 of the Code. 3. The petitioner was the Director, Institute of Management in Government, Thiruvananthapuram. Subsequently, he retired as Director General of Police on 31.08.1994. Alleging that he acquired assets disproportionate to his known sources of income during the period from 30.04.1980 to 20.09.1991, a crime was registered on 12.09.1991. After investigation, a final report was filed with the following allegations: The petitioner, who was a member of the Indian Police Service, had been working in various capacities from 30.04.1980 to 20.09.1991. At the beginning of the said period, the assets of himself and members of his family were worth Rs.11,66,536.61, besides their ancestral agricultural properties at Kottarakkara and Kulasekharam, and jewelleries. During the said period, they have acquired assets worth Rs.83,63,776.37. The total income of the petitioner, his wife and three children together during the said period was Rs.60,48,997.01. Together with the cash and deposits with them at the beginning of Rs.8,27,929.61, they obtained a total income of 68,76,126.66. Out of the said amount, the petitioner and members of his family had to incur an expenditure of Rs.47,94,147.63. Therefore, their total savings was Rs.20,82,038.99. But they together had acquired during the said period assets worth Rs.83,63,776.37. Therefore, assets worth Rs.62,81,737.38, which they acquired during the check period are disproportionate. The allegation is that the said assets were acquired by the petitioner by himself or on his behalf, and exceeding their known sources of income and thereby an offence of criminal misconduct was committed. But they together had acquired during the said period assets worth Rs.83,63,776.37. Therefore, assets worth Rs.62,81,737.38, which they acquired during the check period are disproportionate. The allegation is that the said assets were acquired by the petitioner by himself or on his behalf, and exceeding their known sources of income and thereby an offence of criminal misconduct was committed. 4. The documents are referred to as they are marked in Crl.M.C.No.3916 of 2012. 5. The petitioner earlier filed an application for discharge before the Special Court and when that application was dismissed, he approached this Court by filing Crl.M.C.No.3081 of 2005. The said Crl.M.C. was disposed of by this Court as per the order dated 15.03.2006 ( Alexander v. C.B.I. [2005 (2) KLT 240 ]). A Division Bench of this Court set aside the order dismissing the discharge application, Crl.M.P.No.239 of 2001, and directed the Special Court to proceed with the case from the stage of consideration of the said application. It is seen that the petitioner has thereafter filed Crl.M.P.No.35 of 2012 seeking discharge under Section 239 of the Code. The order dismissing the said application, Annexure-C is impugned in the Crl.M.C. The charge framed by the Special Court against the petitioner is impugned in the Crl.R.P. 6. Heard the learned Senior Counsel appeared on instructions for the petitioner and the learned Standing Counsel for the CBI. 7. This case has a cherished history. According to the petitioner, the crime was registered and the final report was filed without any rhyme or reason. He was on deputation and working as Professor and Director, Institute of Management in Government, Thiruvananthapuram in the rank of Inspector General of Police. While so, on 12.09.1991, Annexure-A crime was registered. The case of the petitioner is that the said crime was registered quite spontaneously, with a view to prevent his promotion as Director General of Police. The then political leadership wanted to promote his junior and for that purpose alone the crime was foisted against him. He would contend that his wife and three children had extensive properties in Kulasekharam in Tamil Nadu. He has ancestral property, portions of which were assigned in favour of his wife and children. His father-in-law was a reputed planter and Chairman of the Rubber Board. He would contend that his wife and three children had extensive properties in Kulasekharam in Tamil Nadu. He has ancestral property, portions of which were assigned in favour of his wife and children. His father-in-law was a reputed planter and Chairman of the Rubber Board. He had hundreds of acres of rubber and other estates, which eventually devolved upon his five daughters, wife of the petitioner, Smt.Omana Jacob being the eldest. Portions of the said property were alienated in favour of his children. Thus, the wife and children of the petitioner have extensive agricultural lands of their own and independent income. They are assessed for income tax as well. The respondent without considering the sources of income of the petitioner, his wife and children which reflects from the materials collected by it, went on to file a final report on the basis of surmises. The documents seized by the respondent and produced before the court along with the final report were not considered while assessing the income and expenditure of the petitioner and members of his family. 8. When his wife and children have independent income, the investigating agency should not have clubbed their income and acquisitions with that of the petitioner in view of the provisions of Rule 15 of the All India Services (Conduct) Rules, 1968 and also the instructions issued in that regard. It is alleged that disregarding all such norms, rules and instructions, Annexure B final report was filed. 9. When his plea for discharge was dismissed, the petitioner took up the matter in Crl.M.C.3081 of 2005. This Court considered his contentions in the light of the propositions of the law laid down by the Apex Court as well as the High Courts in various decisions. Paragraphs No.5 to 8 in that order read as follows: “5. How a trial Judge should consider an application for discharge under S.227 of Cr.P.C. was considered by the Apex Court in Union of India v. Prafulla Kumar Samal & Anr. ( (1979) 3 SCC 4 ) . At paragraph 10, it was observed as follows: "10. Paragraphs No.5 to 8 in that order read as follows: “5. How a trial Judge should consider an application for discharge under S.227 of Cr.P.C. was considered by the Apex Court in Union of India v. Prafulla Kumar Samal & Anr. ( (1979) 3 SCC 4 ) . At paragraph 10, it was observed as follows: "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under S.227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under S.227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 6. Separate income of wife and children derived from the property given by in-laws of an officer cannot be taken as income of the officer concerned. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 6. Separate income of wife and children derived from the property given by in-laws of an officer cannot be taken as income of the officer concerned. If source of the income of the wife and children who themselves are assessees are explained and failure to consider tax returns which is taken into account when disclosed no offence, the charge should not be framed as held by the Apex Court in State of M.P. v. Mohanlal Soni ( (2000) 6 SCC 338 ) . Hon'ble Court was considering a case wherein the State approached the Supreme Court when the High Court set aside the charges. The facts of that case as stated by the Supreme Court are as follows: "A complaint under S.13(1)(e) read with S.13(2) of the Act for the check period 25.9.1982 to 27.3.1993 was filed stating that he had acquired the property in excess of the known source of his income. During the investigation, properties and assets belonging to his mother-in-law, father, brother and nephew were shown as assets of the respondent. The assets of his wife, who is an income tax payer and a self-earning member, were also connected with the assets of the respondent. While submitting the charge-sheet several important documents, which were collected during the course of investigation, were withheld. According to the respondent the said documents supported him. If those documents were considered even prima facie there was no scope to frame charges against him. At the time of framing charges, the respondent made an application seeking production of these documents in court before proceeding to frame charges. But, the said application was rejected stating that for the purpose of framing charges only the documents forwarded to the court under S.173(5) Cr.P.C. need to be considered. Hence he filed Criminal Revision No.337 of 1997 in the High Court. But, the said application was rejected stating that for the purpose of framing charges only the documents forwarded to the court under S.173(5) Cr.P.C. need to be considered. Hence he filed Criminal Revision No.337 of 1997 in the High Court. The said revision petition was disposed of by the order dated 8.9.1997 in the following terms: "In the result the revision is allowed, the order impugned is set aside and it is directed that the documents made available by the accused during investigation be produced and may be taken into consideration by the court below while framing the charge." The above view was upheld by the Apex Court. It is the contention of the petitioner that, here, he is not requesting for considering any additional documents. Even the documents relied on by the investigating agency to frame charges and attached to the charge sheet alone need be looked into. Document Nos. D-468, D-520, D-522, D-524, D-550, D-551, D-552, D-546, D-543 and D-17 would show that petitioner's wife and children during the check in period had an income of Rs.78,43,720-50 from the properties inherited by them from petitioner's in-laws. If that is taken into account, the allegation of disproportionate income to the tune of Rs.62,81,737-38, prima facie, will not lie. The petitioner also relied on Annexure H Circular of the Government of India which is as follows: "Sub-rr.(3) and (4) of R. 16 of the All India Services (Conduct) Rules, 1968, apply only to properties acquired, etc. by the members of the Service either in their own names or in the names of the members of their families. In other words, the properties either acquired by the members of the families of the officers from out of their own funds or inherited by them would not attract the provisions of the rules. As such, the movable/immovable properties owned, etc. by the members of the families of the officers, which are either inherited by them or acquired by them from out of their own funds, are not required to be included in the property returns envisaged in sub-r.(2) of R.16 ibid." Here, the main allegation of the petitioner is that before framing charges and dismissing his case for discharge, these documents were not considered and arguments of the petitioner was not appreciated even for considering the prima facie case. The Apex Court in Mohanlal Soni's case (supra) also approved the decision of the Gauhati High Court in Ananda Bezharuah v. Union of India (1994 Cri LJ 12) Paragraph 8 of Mohanlal Soni's case (supra) is as follows: "In Ananda Bezharuah v. Union of India (1994 Cri LJ 12) the Gauhati High Court was of the view that where the accused was charged with the offence of having resources and property disproportionate to his income and the trial court failed to consider and evaluate the income tax return which clearly established that the property included in the assets of the accused and shown to be disproportionate is the wife's property bought from her own resources and should have been excluded from the assets of the accused". In that case, after remand, even though charge was framed, it was set aside by the High Court and the appeal filed before the Supreme Court was dismissed. Thereafter, in Mohanlal Soni's case (supra), it was observed by the Supreme Court as follows: "As is evident from the paragraph extracted above, if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed." 7. It is true that in Satish Mehra v. Delhi Admn. ( (1996) 9 SCC 766 ) , the Apex Court held that the Sessions Judge was not expected to hold a roving inquiry into the pros and cons of the case at the stage of framing charges by weighing the evidence as if he was conducting the trial, but, in that case, it was observed as follows: "14. The object of providing such an opportunity as is envisaged in S.227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. The object of providing such an opportunity as is envisaged in S.227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in S.227 of the Code." In Dilawar Balu Kurane v. State of Maharashtra ((2002) 2 SCC 135) it was observed as follows: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under S.227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out, where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under S.227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (See: Union of India v. Prafulla Kumar Samal - (1979) 3 SCC 4 ) .” 8. (See: Union of India v. Prafulla Kumar Samal - (1979) 3 SCC 4 ) .” 8. In State of Orissa v. Debendra Nath Padhi (2005 (1) KLT 80 (SC) = (2005) 1 SCC 568 ) , the Apex Court held that if the prosecution material is accepted and the same does not disclose offence, no charge can be framed. The entire previous case law was discussed by the Apex Court in the above case. Even though main question raised in the above case was whether trial court, at the time of framing charge consider material filed by the accused, as it was contended by the State that only the documents attached with the police report alone can be looked into at the time of framing charges. Decision in Satish Mehra's case (supra) was overruled and Apex Court held that at the time of framing charges, the accused has no right to produce documents. It was held as follows: "23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of S.227 of the Code has not been correctly decided." But, the court also observed that the power under S.482 Cr.PC. is not limited to consider the unimpeachable evidence proved by the accused. At paragraph 21, it was observed as follows: "21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under S.482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under S.482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce, material at the stage of framing charge." In this case, there is no such controversy. Petitioner only requested the court to consider the materials produced along with the police report before framing charges. Petitioner only requested the court to consider the materials produced along with the police report before framing charges. In K.Ramakrishna v. State of Bihar ( (2000) 8 SCC 547 ) , it was held that questions regarding sufficiency or reliability of evidence to proceed further need not be looked into. However, if upon the admitted facts and documents relied upon by the prosecution without swifting of evidence, no case is made, the criminal case instituted against the accused are required to be dropped or quashed and order of discharge should be passed.” 10. After setting the position of law thus, the Division Bench proceeded to hold that the Special Judge did not consider the materials produced by the prosecution in its proper perspective. Ten documents produced by the prosecution along with the final report were enlisted in the order and held that the Special Court did not consider the said unchallenged documents produced by the prosecution (10 documents are enlisted, but mentioned in the order as 12 documents). The documents enlisted in the said order are the following: Sl. No. Document Number Particulars Amount 1 D-468 Proceedings conducted by the AITO with respect to the properties owned by the wife and children of the petitioner in Kottarakkara Taluk for the period 1985 to 1991 Rs.8,22,830.00/- 2 D-520 Bank statements/records of Dhanya Estate (owned by the petitioner's son Alexander Jacob) bearing Current Account No.4248 in Canara Bank, Kulasekharam (TN) Rs.28,47,731.07/- 3. D-522 Bank statements/records of Aiswarya Estate (owned by the petitioner's daughter Priti Jacob) bearing Current Account No.4247 in Canara Bank, Kulasekharam (TN) Rs.12,69,447.27/- 4. D-524 Bank statements/records of Haritha Estate (owned by the petitioner's daughter Nidu Jacob) bearing Current Account No.4246 in Canara Bank, Kulasekharam (TN) Rs.11,57,073.12/- 5. D-550 Account books and office records of Joyland Estate, Kanyakumari Dist. owned by the wife of the petitioner for period 05.01.1990 to 30.03.1991 revealing income from sale of misc. items like rubber scrap, fallen rubber woods, plantation, etc. Rs.1,46,930.50/- 6. D-551 Office records of the Estate belonging to the wife and children of the petitioner for the period 13.04.1985 to 20.09.1986, revealing income from sale of misc. items of the Estate. Rs.77,211.63/- 7. D-552 Office records of the Estates belonging to the wife and children of the petitioner for the period 09.06.1984 to 15.02.1985, revealing income from sale of misc. items of the Estate Rs.22,471.10/- 8. items of the Estate. Rs.77,211.63/- 7. D-552 Office records of the Estates belonging to the wife and children of the petitioner for the period 09.06.1984 to 15.02.1985, revealing income from sale of misc. items of the Estate Rs.22,471.10/- 8. D-546 Office records of the Estate belonging to the son of the petitioner w.r.t. the coconut garden for the period 09.04.1987 to Jan.1991, revealing income from sale of coconut, cloves, etc. Rs.1,33,957.95/- 9. D-543 Slaughter Tapping Agreement between the wife and children of the petitioner with CW-9 (Mr.Pal Raj) w.r.t. 4000 rubber trees in 52.10 acres of rubber estate in Velimala, revealing income for the lease. Rs.12,00,000.00/- 10. D-17 Documents including the court judgment and decree dt.05.12.1997 by which the petitioner's wife got 1/5th share of movable properties of her father. Rs.1,66,060.00/- 11. This Court observed that only if the petitioner could not be discharged after considering the impact of the aforementioned documents besides the other materials, the Special Court needed to frame a charge. It was in obedience to the said direction, the Special Court considered Crl.M.P.No.35 of 2012 and passed the impugned order. 12. The Special Court considered those documents in detail. Insofar as the proceedings of the Agricultural Income Tax Officer (document No.D468), it was found that certain amount of agricultural income escaped the assessment made by the respondent, but it was held that the same has to be considered at the time of trial. The bank statements concerning the respective estates owned by the wife and children of the petitioner are D520, D522 and D524. The petitioner contended that the respondent did not reckon with the deposits made in the aforementioned accounts. In that regard, the Special Court took the view that not only deposits but the withdrawals also should be taken into account and the cash balance remaining could alone be accounted as the income. 13. Document Nos.D550, D552, D551 and D546 are the account books containing statements of income and expenditure concerning the estates of the wife and children of the petitioner. The wife, Smt.Omana Jacob owned ‘Omanapuram Estate’, 'Omana Plantation' and 'Joyland'. The elder daughter Priti Jacob owned 'Aiswarya Estate', the younger daughter Nidu Jacob owned 'Haritha Estate' and son Alex George owned 'Dhanya Estate'. In relation to the said account books, the Special Court opined that those were documents prepared by the persons concerned and not the official documents. The wife, Smt.Omana Jacob owned ‘Omanapuram Estate’, 'Omana Plantation' and 'Joyland'. The elder daughter Priti Jacob owned 'Aiswarya Estate', the younger daughter Nidu Jacob owned 'Haritha Estate' and son Alex George owned 'Dhanya Estate'. In relation to the said account books, the Special Court opined that those were documents prepared by the persons concerned and not the official documents. Only if those documents are duly proved, the contents of the same could be acted upon. Thus, it was held that the income mentioned therein could not be reckoned with in order for taking a decision on the application for discharge. Regarding document No.D543, it was held that Rs.10 lakhs received as per that document, which is an agreement with respect to sale of rubber trees for slaughter tapping, received during the check period was included in the agricultural income of Smt.Omana Jacob and there was no suppression of income. 14. Ext.D17 includes a copy of the succession certificate issued in O.P(Succession) 207 of 1987 of the I st Additional Sub Court, Thiruvananthapuram. It is alleged that the amount shown as Smt.Omana Jacob's share in Ext.D17 was omitted by the prosecution. The Special Court found that such an omission occurred, but it opined that even on adding that income, in terms of the aforementioned document, there would be only a marginal increase to the total income and the petitioner was not entitled to a discharge. 15. The learned Senior Counsel would submit that the investigating agency was quite uncharitable in discarding the documents they have seized while computing the income and expenditure. When the wife and children of the petitioner had a vast extent of agricultural land, which they obtained from the ancestors, their acquisition should not have been clubbed with that of the petitioner. In that regard, the learned Senior Counsel placed reliance on Janaki Ballav Patnaik v. State of Orissa [1995 Crl.LJ 1110] where the Division Bench of the Orissa High Court following the principles of law laid down by the Apex court in various decisions held that when a source of income of the accused or his wife was known to the prosecution and the prosecution has failed to take that source into consideration and that income would have a vital bearing on the framing of charge, the Court would be fully justified in refusing to frame charge. 16. 16. It is submitted by the learned Senior Counsel that the income from 14.62 Acres of land at Kottarakkara, which the petitioner obtained as family property and parts of which were assigned in favour of his wife and children was taken by the investigating agency as Rs.70,679/-, whereas the income assessed by the Agricultural Income Tax Officer, Kottarakkara was Rs.8,22,830/-. The respondent ignored that income saying that the income tax authorities quantified the income subsequently and therefore the same cannot be taken into account. It is alleged that for the present purpose, the taxable agricultural income should not alone be the criteria, but the income derived by the assessee including the exempted part should be taken into account. 17. The wife of the petitioner obtained 1/5 th share from the property owned by her father. The property at Kulasekharam she thus obtained was about 100 Acres. Portions of the said property totalling 51.47 Acres were sold in favour of her children as per various sale deeds. The respondent has termed the said transfers as 'gift', with a view to avoid inclusion of independent income of the children in the assessment. Such purchases were made by the children making use of their independent income and the respondent wanted to suppress that fact by describing the transfer as 'gift'. Insofar as the bank statements and accounts maintained in the respective estates, it was submitted that the income each of the owners derived should have been treated as the income of the petitioner during the said period, since the acquisition in the name of the wife and children are the assets shown in the charge as the acquisition, as though it was incorrect to club their acquisition with that of the petitioner for, they had separate properties which enured a handsome income and each of them was paying income tax. But when their assets are clubbed with that of the petitioner to launch the prosecution, the respondent should have investigated into the income obtained by each of them. The respondent, however, did not venture to do so; instead, they added the income of the wife and children quite whimsically, resulting in this false prosecution. 18. It is further submitted that the expenditure of the petitioner and members of his family was computed without having any basis. The respondent, however, did not venture to do so; instead, they added the income of the wife and children quite whimsically, resulting in this false prosecution. 18. It is further submitted that the expenditure of the petitioner and members of his family was computed without having any basis. The petitioner had pointed out in the petition for discharge and the written submissions submitted before the Special Court about incorrectly added items of expenditure in the charge. That kind of escalated amount of expenditure also caused prejudice to the petitioner. It is alleged that the Special Court did not venture to consider the said contentions and exclude the imaginary amounts included as expenditure. It is accordingly submitted that the Special Court did not comply with the directions by the Division Bench. The consequent submission is that if the income reflected from the said ten documents were taken into account, that would have inured an irresistible conclusion that the accusation against the petitioner was quite untenable and the charge against him would be groundless. 19. The learned Standing Counsel for the CBI made submissions with reference to each of the ten documents referred to in the order of the Division Bench and explained that the actual income derived by the petitioner and members of his family were included in the statement of accounts. Similar is the contention concerning the expenditure component; that the actual expenditure borne out from the documents alone are shown in the charge. 20. I shall consider the contentions of the petitioner document-wise. Document D.468 21. Total extent of 14.62 Acres of land was originally owned by the petitioner besides his family property. In 1984, portions of the said property were assigned in favour of his wife and children. Thereafter, the property owned by each of them was as follows: 1. Dr.P.J.Alexander 2.35 Acres 2. Smt.Omana Jacob 3.23 Acres 3. Priti Jacob 3.19 Acres 4. Nidu Jacob 3.12 Acres 5. Alexander P.J. 2.73 Acres Total 14.62 Acres The said alienation was obviously for the purpose of saving income tax by availing the benefit of computation scheme. The transfers were during the check period. Whether or not the said property is shown as assets of the petitioner, the income therefrom has been computed as his income. He cannot have a grievance in not splitting up the income. Relevant question is whether the income from the said property was properly calculated. The transfers were during the check period. Whether or not the said property is shown as assets of the petitioner, the income therefrom has been computed as his income. He cannot have a grievance in not splitting up the income. Relevant question is whether the income from the said property was properly calculated. 22. The submission of the learned Senior Counsel for the petitioner that the net income from the property, whether taxable or not, shall be reckoned with for calculating his income from the known sources has substance. While alleging acquisition of disproportionate assets, the income corresponding to the relevant period derivable from the agricultural land, even if not subjected to tax, should be reckoned with. Although it was in the reassessment, the total income was found to be Rs.8,22,830/-. The same should have been taken as the income of the petitioner during the said period. Whereas, Rs.70,679/- alone was accounted for. Therefore, the remainder (Rs.8,22,830 – Rs.70,679 = Rs.7,52,151/-) should have been shown as income from the agricultural land of the petitioner and members of his family at Kottarakkara. Document D.520, 522 and 524 23. These are copies of bank statements/records concerning Dhanya Estate, Aiswarya Estate and Haritha Estate. These documents were seized by the investigating agency and produced along with the final report. Going by the principles laid down by the Apex Court in Mohanlal Soni's case (supra), the investigating agency had an obligation to verify such documents and the actual income derived by the person concerned shown in the final report for the purpose of ascertaining the disproportionate assets, if any. 24. The deposit in the bank account No.4248 in Canara Bank, Kulasekharam, which was maintained in the name of Dhanya Estate, was Rs.28,47,731.07. The allegation of the petitioner is that the same was not taken as the income of the petitioner during the said period. The respondent took the cash balance available in the account at the end of the said period alone as the income. It may be noted that the gross income received by the assessee over the whole period cannot be taken as the income that could be utilised for the acquisition of assets. Periodical expenses incurred shall have to be deducted. If such periodical withdrawals were utilised for acquiring assets, the same shall have to be reckoned. It may be noted that the gross income received by the assessee over the whole period cannot be taken as the income that could be utilised for the acquisition of assets. Periodical expenses incurred shall have to be deducted. If such periodical withdrawals were utilised for acquiring assets, the same shall have to be reckoned. But from the materials on record, it is not able to say that the amounts withdrawn from the said account were utilised for acquiring the assets in question. In that view of the matter, the prima facie finding that can be had is that the closing balance in the account alone could be treated as the income, at any rate, at this stage. In the quantification statement in the final report, the amounts found as the balance outstanding in the bank accounts have been accounted as the income. Therefore, the contention of the petitioner with respect to these documents cannot be accepted at this stage. Documents D.550, 551, 552 and 546 25. These are account books and office records of various estates owned by the wife and children of the petitioner. These records were being maintained almost in a similar way; although columns are devised differently. Income and expenditure are shown separately. Various remittances in the bank accounts of the respective owners have been shown as expenditure. When the statement of accounts contain both income and expenditure, what could ordinarily be taken into account in order to understand the income derived by the person concerned is the net balance. Whether each item of expenditure was utilised for acquisition of any of the assets in question, is not reflected from these statements of accounts. 26. The learned Senior Counsel for the petitioner submitted with regard to documents D-550, D-551, D-552 and D-546, that the view taken by the trial court was incorrect. The trial court held that those account books being maintained by the party themselves, and the truth or falsity of the same should be evaluated at the trial before being acted upon. The said documents, being the accounts maintained for years together in continuity, the same have sanctity. The trial court held that those account books being maintained by the party themselves, and the truth or falsity of the same should be evaluated at the trial before being acted upon. The said documents, being the accounts maintained for years together in continuity, the same have sanctity. The learned Senior Counsel for the petitioner also highlighted the statement of witness No. 3 in order to show that various payments were effected through the bank accounts of the petitioner’s wife and children to acquire properties and the same justifies the contention that the income of or acquisitions by them should not have been clubbed with that of the petitioner. That contention cannot be countenanced at this stage for, since the assets in question were allegedly acquired by the petitioner himself or on his behalf. 27. However, in the case of expenses shown in these documents, another aspect assumes importance. Each item of expenses pertaining to all has been mentioned in the final report. Whether those heads of expenditure are the same shown in D550, D551, D552 and D546 is not explained or explored. Therefore, it is only appropriate to accept the income shown in these documents as their income during the check period from the respective estates. Therefore, the possible prima facie finding from these documents is that the income shown in the accounts statements shall be taken as the income derived by the person concerned during the said period. But, the investigating agency and the Special Court did not. Therefore, the contention of the petitioner concerning documents D.550, 551, 552 and 546 is to be accepted. Total income enured as per the said documents was Rs.1,46,930.50 + Rs.77,211.63 + Rs.22,471.10 + Rs.1,33,957.95 = Rs.3,80,571.18. Document D.543 28. The petitioner claims that the rubber trees in 52.10 Acres of the rubber estate, Velimala in Kulasekharam owned by Smt.Omana Jacob and children were sold to one Pal Raj, who was cited as witness No.9 for an amount of Rs.12 lakhs. The said amount was not shown as income in the final report. The fact that such a sale occurred is undeniable by the prosecution in view of the assertion by that witness and as the agreement in that regard finds a place among the prosecution records. 29. The said amount was not shown as income in the final report. The fact that such a sale occurred is undeniable by the prosecution in view of the assertion by that witness and as the agreement in that regard finds a place among the prosecution records. 29. The case of the prosecution is that Rs.10 lakhs received as income from slaughter tapping of the rubber trees was added with the income of Smt.Omana Jacob in the final report. Such an amount was stated in the final report as income of Smt.Omana Jacob as reflected from the income tax return submitted by her. The definite case of the petitioner is that out of about 100 Acres of rubber and coconut estate at Kulasekharam inherited by Smt.Omana Jacob, 52.98 Acres were sold in favour of their children with a view to avail the benefit of compounding system of agricultural income tax. If so, non-mentioning of the exact income in the returns may be justifiable. But the prosecution is categoric that Rs.10 lakhs from the total of Rs.12 lakhs agreed as per agreement was paid by Sri.Pal Raj during the check period and that amount is included in the agricultual income tax of Smt.Omana Jacob amounting to Rs.15,71,000/- shown in the charge. Only on account of the denial of that fact by the petitioner, the case of the prosecution cannot be rejected at this stage. Document D.17 30. Father of Smt.Omana Jacob expired leaving behind a Will. The Will was administered and the 1/5 th share was allotted to Smt.Omana Jacob. An amount of Rs.1,66,060/- was also obtained by Smt.Omana Jacob. The petitioner alleges that the said amount was not added in the income statement. Explanation of the respondent in this regard is that such an amount was credited to the savings bank account and when the same was later debited, no claim in that regard could be made. The said view is incorrect. 31. Succession certificate issued in O.P.(Succession) No.207 of 1987 of the Ist Additional Sub Court, Thiruvananthapuram forms part of Ext. D17. As per it Smt.Omana jacob obtained an amount of Rs.1,66,060/- as her share from the deposits of the father. The same was the income of the petitioner, but the prosecution failed to add it. To that extent also, the computation in the final report went wrong. 32. D17. As per it Smt.Omana jacob obtained an amount of Rs.1,66,060/- as her share from the deposits of the father. The same was the income of the petitioner, but the prosecution failed to add it. To that extent also, the computation in the final report went wrong. 32. As held in State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] it is obligatory on the part of the court to evaluate the materials and documents on record produced by the prosecution and decide after taking the same on their face value whether or not the ingredients of the alleged offence would be established. Indisputable documents produced by the prosecution should be taken into account in that excercise. Of course, the court is not expected to swift the evidence so as to decide the truth or falsity of the documents at that stage. 33. The learned Senior Counsel for the petitioner contended that the expenditure incurred by the wife and children of the petitioner should not have been counted for, they had independent income. In order to fortify that contention, the petitioner made mentioned of Rule 15 of the All India Service (Conduct) Rules and a Circular issued in that regard. The said contention cannot be accepted at this stage since the acquisitions of the assets in question; in the name of the petitioner, his wife and children were alleged to be acquired by the petitioner or on his behalf. The income derived by wife and children, their assets before the check period and after have been taken into account. When the specific allegation of the prosecution is that the assets in question were acquired in his own name or in the name of his wife and children by him, expenditure incurred by the wife and children also require recognition. 34. The learned Senior Counsel by placing reliance on the decision of this Court in Natesan T.G. v. Deputy Superintendent of Police, VACB [ 2012 (4) KHC 64 ] contended that unless it is alleged and proved that the assets acquired were on behalf of the petitioner, no prosecution would be possible. There it was held: “10. 34. The learned Senior Counsel by placing reliance on the decision of this Court in Natesan T.G. v. Deputy Superintendent of Police, VACB [ 2012 (4) KHC 64 ] contended that unless it is alleged and proved that the assets acquired were on behalf of the petitioner, no prosecution would be possible. There it was held: “10. To establish offence under Section 13 (1)(e) of the P.C Act, it is not enough if prosecution merely proves that the wife of a public servant or any other person was in possession of pecuniary resources or property during the relevant period. It must be further alleged and proved that such possession was “on his behalf” i.e., in the interest of the public servant or as his representative. If there is no such allegation or proof that the prosecution of pecuniary resources or property by his wife was on behalf of the public servant, he cannot be convicted for offence under Section 13(1) (e) read with Section 13 (1) (2) of the P.C Act.” As pointed out above, the definite allegation in the final report is that the assets in question were acquired by the petitioner in his own name and on his behalf in the name of his wife and daughters. When that is the specific allegation, the matter requires deeper consideration at the trial to decide whether the petitioner can avail the benefit of the aforesaid proposition of law. 35. The Apex Court in State through Deputy Superintendent of Police v. R.Soundirarasu [AIR 2022 SC 4218] held that: “80. Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.” 36. It is true that the petitioner does not canvas to look into any document which he produced. Here, the petitioner contends that the investigating agency failed to reckon with many items of income the petitioner or members of his family obtained during the check period as emerged from the aforementioned 10 documents seized during investigation. All such documents have been considered above. Omission of any other item of income or expenditure could be pointed out by the petitioner. The income derived by the petitioner and members of his family which escaped computation in the final report are the following: 1) Based on document D468 - Rs.7,52,151/- 2) Based on documents D550, D551, D552 and D546 - Rs.3,80,571.18 3) Based on document D17 – Rs.1,66,060/- Total of the above is Rs.13,18,782/-. 37. If the aforementioned amount is added to the income of the petitioner and members of his family, the total income would be Rs.68,76,126.62 + Rs.13,18,782 = Rs.81,94,908.18. Expenditure of the petitioner and members of his family during the check period is Rs.47,94,147.63. Deducting the same, their savings during the check period was Rs.34,00,760.55. As against the said income, the assets the petitioner acquired by him and on his behalf during the check period worth Rs.83,63,776.37. Hence, value of the disproportionate assets he acquired is Rs.49,63,015.82 (Rs.83,63,776.37 – Rs.34,00,760.55). 38. In view of the above the plea for a discharge by the petitioner is liable to be rejected. The impugned order cannot, however, be set aside altogether. It requires modification. Also, the charge framed by the Special Court against the petitioner is wrong and has to be quashed. A fresh charge in the light of the findings entered into above shall have to be framed against the petitioner. The charge that has been framed by the Special Court is a replica of the final report. It requires modification. Also, the charge framed by the Special Court against the petitioner is wrong and has to be quashed. A fresh charge in the light of the findings entered into above shall have to be framed against the petitioner. The charge that has been framed by the Special Court is a replica of the final report. I may remind the Special Court that a court charge need not contain every particular mentioned in the final report. The accusation in charge shall be drafted bearing in mind the ingredients of the offence and in compliance to the provisions of Sections 211, 212, 213 and 214 of the Code. 39. The Crl.M.C and Crl.R.P are disposed of accordingly. The charge framed against the petitioner in C.C. No. 52 of 2011 is quashed. The Special Court shall frame a fresh charge against the petitioner in the light of the findings hereinbefore and proceed with the trial in accordance with law. The Special Court shall make every endeavour to dispose of C.C.No.52 of 2011 at the earliest.