JUDGMENT
The facts leading up to this appeal are stated to be as follows.
Appellant no.1 is said to be the husband of appellant no.2. It was alleged that appellant no.1, while working as a
3
Section Engineer/Permanent Way Inspector, with the South- Western Railways had amassed wealth, valued at Rs.11.85 lakh, which was far in excess of his known sources of income as a public servant. And that to conceal the same, appellant no.2 had abetted the crime in allowing the wealth to be acquired in her name. It was thus alleged that the appellants had committed offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity) read with Section 109 of the Indian Penal Code, 1860, (Hereinafter referred to as the 'IPC', for brevity).
Proceedings having been initiated against the appellants, they had contested the matter and pleaded not guilty and claimed to be tried. The prosecution had tendered the evidence of 44 witnesses and had exhibited 129 documents. The appellants, in turn, are said to have examined six witnesses and are said to have got marked about 10 documents.
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The trial court having found that the appellants were guilty, atleast to the extent that the assets disclosed were about 28.31% in excess of the known sources of income, convicted the accused. It is that judgment which is under challenge in this appeal.
2. The learned Senior Advocate, Shri C.V.Nagesh, appearing on behalf of the counsel for the appellants, would contend, that the impugned judgment is liable to be set aside on the following grounds, namely :
The trial court had placed reliance on the testimony of one Vishwanathan, Valuer, who was examined as PW-26, and who had indicated in his valuation report in respect two immovable properties, which were said to have been constructed on the self supervision of appellant no.1, had only given a deduction of 7.5% of the value as against the standard permissible deduction of 10% , on the cost of construction. It is contended that this court ought to take judicial notice of the fact, that the appellant no.1 being a civil engineer by
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qualification would not be expected to engage the services of an architect or a construction engineer. If 10% is applied, the cost of construction would get reduced by over Rs.50000/- It is further pointed out that the trial court has taken in to account under the head "Brokerage", a sum of Rs.30,500/- and another sum of Rs.1,450/- and for the acquisition of the plot at Mysore and KR Nagar and a further sum of Rs.12,000/- and 10,000/- respectively, for submission of the drawings of building to statutory authorities, who would provide amenities of electricity and water to the structures put up at Mysore and KR Nagar. This, it is contended, ought to have been excluded as expenses for the reason that the appellant no.1 being an engineer himself and in the absence of evidence to demonstrate that he had availed the services of a broker or the services of an architect to prepare drawings to be submitted to authorities, the sum deducted as brokerage and professional charges for the preparation of drawings, which would totally be in a sum of
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Rs.53,950/- ought to have been shown as the asset in hand, instead of as expenses.
It is contended that the evidence on record indicated that the estimated cost of construction of the property at Mysore, submitted by the accused was prepared by an approved valuer of a banker, at Rs 6.25 lakh, while availing a loan from the bank. In the said estimate, the valuer had provided complete details of the work, quantity of the materials that were to be used, the cost of materials among certain other things. This ought to have been the yard stick to assess the cost of construction of the building. Despite this evidence being made available, the court below was not justified in accepting the incorrect valuation report submitted by PW-26, Vishwanathan at Exhibit P-62.
It is further contended that in the calculation of agricultural income, there has been a major error by the court below. It is pointed out that in the course of investigation, PW- 44, the inspector of Police, had seized from the possession of
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the accused several documents including 19 bills, which would have indicated the sale of paddy and ginger by the accused to several persons and the amount paid by them towards the price of the agricultural produce so purchased by them during the check period. The documents that were seized -*, which are reflected in the receipt memo dated 13-10-2005 are marked as Exhibit D-2.
The total value of the agricultural produce sold by the accused under the caption "paddy" comes to Rs.1.72 lakh and under the caption "ginger" comes to Rs.17.64 lakh. The prosecution had examined, from amongst the named purchasers, one KK Thomas, PW-34, who had purchased paddy and ginger from the accused. However, the other purchasers named were never examined. KK Thomas had not supported the appellant and had not acknowledged the purchase of ginger from the appellant in a sum of Rs.1.96 lakh. If this sum is deducted from the sale proceeds realized by the accused, the sale proceeds would be Rs.7.40 lakh. If the cost of cultivation
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is deducted at 40% , the income of the accused from the sale proceeds would be Rs.4.44 lakh. As against this, the court has acknowledged only Rs.2.11 lakh. The trial court, it is contended, was thus in error in not taking into account a further sum of Rs.2.32 lakh.
It is pointed out that Exhibit P-62, the Valuation Report refers to a Solar Water heater, which had been installed at the Mysore property of the appellant. The cost of the same is shown as Rs.25000/-. It is in this way the total cost of construction is shown as 12.95 lakh. However, PW-44, the investigating officer has indicated the cost of acquisition of the same Solar water heater at Rs.16,788/- in the expenditure column. This has resulted in the sum of Rs.25,000/- shown in Exhibit P-62, being a double entry. The trial court has glossed over this circumstance in not taking into account the said heater as an asset of the accused.
It is pointed out that the following items of property are assets acquired prior to the check period, the inclusion of these
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items in arriving at the assets disproportionate to the known sources of income of the appellant acquired during the check period has led to a major error committed by the court below. Attention is drawn to the following items referred to in the judgment of the court below.
a) Item no.11 in Part-B is an acquisition said to have been made prior to the check period, the cost of acquisition is shown as Rs.32,000/-
b) Item no.12 is yet another item so acquired and valued at Rs.30,400/-
c) Item no. 7 valued at Rs.26,200/-
d) Item no. 1 -B valued at Rs.29,000/- The total value of the above items is about Rs.1.17 lakh. It is further pointed out that PW-17, the Branch Manager of LIC has produced Exhibits P-39 and P-40, which would indicate that the appellant was entitled to a benefit of
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Rs.20,000/- under a money back policy issued by the LIC. This amount has been excluded by the trial court . It is thus contended that the benefit of all of the above would exceed Rs.4.99 lakh, which has not been given credit to in favour of the appellant.
It is further pointed out that the valuation attributed as per report of the valuer PW-26, cannot be accepted on its face value, in view of the vital admissions made by him during his cross examination. And also that the testimony of PW-14 and DW-6, which have remained unchallenged lends credence to the defence of the accused in discrediting the evidence of PW-
6. In other words, their testimony has not been challenged in as much as they had supported the case of the appellant that they had supplied bricks manufactured on their land to the appellant in constructing his property and that they had also supplied wood required in the construction. These two components itself would bring down the cost estimation by at least Rs.1.5 lakh to 2.5 lakh. The cost of construction adopted by PW-26
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was also not relevant to the property concerned, as the witness had adopted CBDT valuation, applicable to major towns. It is also contended that the trial court was in error in deducting one-third of the appellant's income towards house hold expenses, while ignoring that the appellant owned wet lands close to the Harangi Dam and was growing paddy and other commercial crops and was not incurring expenditure in that regard.
3. On the other hand, the learned Counsel appearing for the respondent seeks to justify the judgment of the trial court, and would contend that the grounds raised were the very contentions raised in defence and it was incorrect to urge that the trial court had committed any error.
4. On a consideration of the rival contentions, it is seen that the trial court has assigned its reasons in accepting the valuation of the two immovable properties in question, at KR Nagara and Mysuru, as claimed by the prosecution, at
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paragraphs 56 to 62 of the judgment. It is noticed that the trial court has indeed not taken into account that the appellant was a civil engineer, as evidenced by the documents produced at Exhibits P-119 and P-120. Further, the standard deduction to be given towards the cost of construction when it is done under self-supervision is 10%. This is admitted by the very valuer, PW-26, whose report is the basis for the finding of the court, in his deposition found at page 103 of the paper book. Therefore, the cost of construction ought to have been reduced by Rs.50,300/-
It is also found that the trial court has accepted and taken into account under the head of 'Brokerage ' a sum of Rs.30,500/- and Rs.1450/- as sums spent by the accused towards commission paid to brokers for acquisition of immovable properties in question, by the appellant. Further, the trial court has also taken into account a sum of Rs.12,000/- and Rs.10,000/- as amounts spent in the preparation and submission of civil drawings to statutory authorities in
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obtaining sanctions for construction of the two immovable properties. There was indeed no basis for the same. These amounts totalling to Rs.53,950/- would necessarily have to be shown as the asset of the appellant and not as expenditure, in the absence of any positive evidence to the contrary. In so far as the agricultural income attributed to the appellant is concerned, the trial court has concluded thus in arriving its finding.
"71. On believing the above evidence this court could agree with the learned defence counsel that the yield of paddy from the above land would be atleast 20 quintals per acre. However, there is no definite evidence on the record regarding what type of the crops were raised during the checking period whether the paddy was raised in the portion of land and in rest of the portion the ginger was raised. The accused placed some evidence on the record to prove that he has sold the ginger and the paddy, which may conveniently be extracted as follows:
| Nature of the Crop |
Quantity (quintals) |
Date |
Price |
| 1 |
Ginger |
-- |
12.11.2001 |
Rs.71,311/- |
| 2 |
Ginger |
-- |
10.10.1999 |
Rs.70,800/- |
| 3 |
Ginger |
-- |
15.11.2000 |
Rs.74,585/- |
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4 Paddy 20 15.02.2003 Rs.12,800/-
5 Paddy 19 08.03.2002 Rs.11,160/-
6 Paddy 20 25.02.2004 Rs.13,000/-
7 Paddy 17 05.03.2004 Rs.11,050/- TOTAL Rs.2,64,606/-
There is no evidence on the record regarding the cost of cultivation, therefore, 40% of which is required to be taken thus it may be worked out at Rs.2,64,606/- X 40 = Rs.10,58,4240 = Rs.1,05,842/- then it is
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require to be deducted in total income of Rs.2,64,606/- - Rs.1,05,842/- = Rs.1,58,764/- would be the agricultural income for the period of six years, the above amount may be apportioned for two years at Rs.52,921/- + Rs.1,58,764/- = Rs.2,11,685/- would be the agricultural income during the check period which is required to be added to the total income."
It is pertinent to note that in the course of investigation several documents have been seized from the possession of the appellant, including 19 bills, which are indeed reflected in the Receipt memo dated 13-10-2005, together marked as Exhibit D-2. The prosecution had examined one of the purchasers who
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had purchased the agricultural produce from the appellant, as PW-34. This witness had not supported the case of the appellant. However, none of the other purchasers who were identified and reflected in Exhibit D-2 have not been examined. If the amounts shown towards such purchases are also taken into account, it would be in a sum of Rs.7,40,421/- and after deduction of 40% towards cost of cultivation, the sum would be Rs.4.44 lakh instead of Rs.2.11 lakh arrived at by the trial court. The difference is about Rs.2.32 lakh which would again be an asset of the appellant.
Further, it is also seen that in Exhibit P-62, the valuation report of PW-26 relied upon by the trial court, at Item no.14, the cost of a solar water heater is shown as Rs.25,000/-, and this is included in the total cost of construction of the house. However, PW-44, the investigating officer has shown Rs.16,788/- as payment made by the appellant towards acquisition of the same solar water heater, this would result in the asset in the hands of the appellant not being taken into
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account, by virtue of such a double entry. Rs.25,000/- would have to be added to the asset of the appellant. And further, it is seen that the trial court is not justified in taking into account the following amounts under different heads, though they are apparently items acquired by the accused prior to the check period, namely :
Item no.11 in Part -B, Item no.12, Item no.7 & Item no.1- B. The total amount involved is in excess of Rs.1.17 lakh. And yet another item that has been overlooked by the trial court is the benefit under a Money Back Policy issued by the Life Insurance Corporation of India, in a sum of Rs.20,000/- which would have to be included in the income of the appellant. Hence, if all the above referred items are taken into account in favour of the appellant, which is in a total sum exceeding Rs.4.99 lakh, the alleged disproportionate assets would well be within the legitimate limit prescribed and the appellants would stand absolved of any crime.
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Consequently, the judgment of the trial court is set aside and the appellants are acquitted. The fine amounts, if any, paid by the appellants shall be refunded and the bail bonds furnished by the appellants shall stand cancelled.
Sd/-
JUDGE
nv*