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Judgment
This appeal is filed in the following background. The appellant was working as Inspector of Excise, Vigilance Squad, Excise Department, Mysore. He is said to have retired from service on 30.4.2001. While he was in service and working in the limits of Mysore District, the Lokayukta Police is said to have received a vigilance report about the appellant having amassed wealth disproportionate to his known sources of income. Simultaneous raids are said to have been conducted on the house, office and other premises of the appellant and his family members, on 14.6.1999, by the Lokayukta Police. During the raid, valuable movable properties and documents are said to have been seized. Detailed lists were drawn of the items so seized. An investigation is said to have followed for the check period 5.8.1970 to 14.6.1999. During the said period, the appellant is said to have worked in several districts of Karnataka. The appellant was found to have acquired several properties in his name as well as in the name of his wife and two sons. The properties acquired by the appellant during the check period was estimated to be worth Rs.26.06 lakh. The expenditure incurred by him, during the said period was estimated at Rs.6.60 lakh. The total value of the assets and expenses was at Rs.32.66 lakh. His total income during the period was shown as Rs.11.75 lakh, from all sources. Hence, it was alleged that he was in possession of assets worth Rs.20.91 lakh in excess of his known sources of income. Or about 177.96% in excess of his income.
It is on the above allegation that a case was registered against the appellant and has culminated in the conviction of the appellant, for an offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, (Hereinafter referred to as the ''PC Act'', for brevity). It is that which is under challenge in this appeal.
Shri A.H. Bhagvan, learned counsel appearing for the appellant would contend as follows. That the appellant had died during the pendency of this appeal, as on 17.12.2015. However, by an Order dated 1.4.2016, this court has permitted the appellant''s widow to continue with the appeal. That the accused has been found guilty on the basis of the assets that are found listed in the three Mahazars that were drawn at the time of the search and seizure conducted on 14-6-1999, namely , the Mahazars marked as Exhibits P-5, P-8 and P-9.
It is pointed out that the house of the appellant situated at No.52/B, Karuna Marga, Siddartha Layout, Mysore was searched and apart from valuables and certain documents, cash of Rs.37350/- was seized. Of this, gold jewellery weighing in all about 331 gms. and silver articles weighing about 720 gms. were claimed as the properties belonging to the appellant''s wife, by her. It was asserted that Smt. Honagangamma had married the appellant in the year 1963 and at the time of her marriage her parents, who were said to belonged to a family of prosperous landlords, had presented her with gold Jewellery of 30 tolas and silver weighing about 58 tolas. Similarly, her parents-in-law had presented her with 10 tolas of gold and 10 tolas of silver along with clothes and other household articles. It was asserted that it was customary for such presents to be given at the time of marriage. There were also presents made by close relatives and friends of gold, silver and house hold articles. In addition, it was urged that the accused himself had gifted Honnagangamma with gold jewellery weighing about 20 tolas and silver weighing about 50 tolas, which has been disclosed to his employer in his returns. It is further pointed out that the larger portion of the above jewellery and other articles had been acquired in the year 1963 and thereabout, when the appellant had not even joined service. The value of the said articles did not then exceed Rs.60,000/- and therefore even the value attached to these articles is highly inflated and has no nexus with any wealth acquired by the appellant.
In so far as the cash of Rs.37,350/- which was seized, it is contended that the same was the property of Mohan Kumar, the younger son of the appellant. It is pointed out that he had initially joined his elder brother Kaladhar as a partner in liquor vending business. He had then retired from the partnership and had set up his own business at Mysore in the name and style of Ashwini Bar and Restaurant and had been running the business from the year 1998. He was said to be an income tax assessee from the year 1995. His daily income from the bar and restaurant was about Rs.3,000/-. The first week''s collection from the business was said to constitute the sum of Rs.37,350/- that was seized from the premises and incorrectly shown as belonging to the appellant.
It is next contended that the search and seizure of a safe deposit locker maintained by the wife of the appellant, at Corporation Bank, Mysore, and the only articles seized were one pair of gold bangles weighing about 35 gms, the last will of the appellant and a bank pass book belonging to Honnagangamma. The gold bangles were her property and could not be attributed to the appellant. Secondly, the last will indicated that the appellant''s elder son had separated from the family and was living independently since the year 1988 and had established his own liquor vending business and had prospered. The said seizure could not be said to have produced any incriminating material against the accused.
It is further contended that Exhibit P-9 is the Mahazar that pertains to the search and seizure of a safe deposit locker bearing no.46, at Vysya Bank Ltd., Mysore. It is pointed out that the said locker was in the name of one Geetha Rao, a family friend - who was then residing in the United States of America and is said to have permitted Honnagangamma, the wife of the appellant to use the said locker, to the knowledge of the Bank, as endorsed by the bank, where she had kept her personal belongings, including gold and silver jewellery and cash. In so far as the cash of Rs.95,000/- seized from the said locker, it is stated that Kaladhar, the son of the appellant had prospered on his own after having separated from the family and having moved to Chikamagalur. He is said to have purchased a house at 555/C, Tonnachikoppa, Kuvempunagar, Mysore. The same had been rented out to tenants and the rent was said to have been regularly collected by Honnagangamma and kept as her personal savings, she had furnished the Income tax returns filed in respect of the said income. The said amount could not hence be attributed to the appellant. It is also pointed out that the rents so collected over the years had been invested in three fixed deposits by Honnagangamma, which are also seized and sought to be attributed to the appellant.
It is also pointed out that there were photocopies of 3 promissory notes seized from the said locker. They were drawn for a sum of Rs.2 lakh each. Though the same are shown to have been signed by PW-7, who was however treated as a hostile witness, he claimed to have borrowed Rs.3 lakh in all under the said promissory notes, 10 years prior to the date of his deposition, whereas the same were shown to be for Rs.2 lakh each. The said documents were not shown to have been executed in favour any person, the column provided for the same was left blank. Hence, it is contended that a sum of Rs.6 lakh attributed to the appellant was not established.
It is further contended that in the total assets, two houses at Mysore and a plot at Hunsur are attributed to the appellant, totally valued at Rs.11 lakh. However, it is pointed out that apart from the house of the appellant at Kuvempunagar, Mysore, the second house in Mysore stood in the name of Kaladhar, who had separated from the family and had his own independent income which is demonstrated by the income tax returns filed by him. Similarly, the site at Hunsur, on which he had later constructed a house also stood in his name and not in the name of the appellant.
In so far as the appellant''s house at Mysore was not valued at all and the valuer who may have valued other properties was never examined as a witness and hence it is contended that the true value of the house properties is not at all assessed and proved in accordance with law.
Thus, it is contended that the court below was not justified in accepting a large portion of the wealth and properties as belonging to the appellant in the face of his wife and sons legitimately laying claim to the said properties. The court below having mechanically accepted the case of the prosecution in the face of contra material has resulted in a gross miscarriage of justice in not only holding the appellant guilty, but in having deprived his family members of their legitimate property in respect of which positive evidence was tendered.
On the other hand, the learned Special Public Prosecutor, Shri Venkatesh Arabatti seeks to justify the judgment of the court below and would point out that the appellant has started his career when he was of humble means and the subsequent acquisition are apparently sought to be held in the names of dear ones, which is adequately established by the prosecution and hence the burden was on the accused to demonstrate otherwise - which he had failed to do.
It is pointed out that the claim of Honnagangamma that the locker at Vysya bank belonged to a family friend, Geetha Rao, is belied by the fact that she had not come forward to claim the jewellery seized from the locker and that the locker though initially shown in the joint names of Honnagangamma and Geetha Rao, it was later found to have been in the exclusive name of Honnagangamma and therefore the jewellery was not shown as belonging anyone other than Honnagangamma.
It is urged that the trial court has rightly negated the capability of the appellant''s son Kaladhar of having started a business at an early age without investment of the ill gotten wealth of his father. And further that he could not also have acquired a house in Mysore.
It is contended that the blank promissory notes found in the locker of Honnagangamma would raise an adverse presumption against the appellant and cannot be negated merely because the same are only photocopies and that the same are blank in material particulars.
The learned Special Public Prosecutor would hence contend that there is no merit in the appeal and that the same be dismissed.
In the light of the above contentions and the circumstances of the case, it is not in dispute that the appellant is no more and the question of the appellant being punished is not a possibility. The only apparent interest in the widow of the appellant seeking to pursue the present appeal is to save the fair name of the deceased appellant and to salvage the valuable properties that have been seized and confiscated, most of which is claimed as belonging to her and her sons.
The primary findings of the trial court hinge on certain conclusions drawn, which do not appear to be justified. It is seen at paragraphs 17 and 18 of the judgment that the trial court has generally approved the method adopted by the investigating officer in proceeding to arbitrarily include certain properties as being that of the appellant and while excluding others as possibly belonging to the family members of the appellant. There is no indication of which items are so included and which were excluded. It is seen from the record that there were several applications filed by the family members seeking release of specific items on the strength of documents produced in support of the respective applications. There is no indication that those applications have been considered and appropriate orders passed. The impugned judgment makes no reference to the same. It is hence inexplicable that the trial court has vaguely held that the investigating officer was justified in his actions of including a major portion of the wealth said to have been seized from the custody of other family members who were admittedly earning members with their own establishments.
The trial court was also not justified in holding that Kaladhar, the son of the appellant was not capable of having established a business at a young age and of having prospered in life. The reference to one Sathya, under whom Kaladhar having worked initially and his claim that he was being paid a certain amount of money which was invested by him in business and that he had grown from strength to strength, has been disbelieved by the trial court on the ground that the said Sathya, whose house premises had also been searched was found to be living in poverty and therefore, it is held that he would have been incapable of paying generous sums to Kaladhar at an earlier point of time, can only be said to be extreme scepticism on the part of the court and is not being fair to Kaladhar. The surmises as to the low salary which the appellant was drawing in the 1970''s and 1980''s could not be the criteria to judge the capability of his son in having earned substantially as a business man. Further, the trial court has unfairly rejected the claim of Kaladhar that the house in Mysore did not belong to him, when the same stood in his name. It was also not justified in holding that Hona Gangamma was not collecting the rent from the premises and treating it as her savings, when she had paid income tax on those earnings. And when Kaladhar was residing in Chikamagalur and that it would have been a convenient arrangement between mother and son.
The blank photocopies of promissory notes said to have been executed by Pw-7 was not shown to be made out in any person''s name. The money was said to have been borrowed ten years prior to the seizure, and not for the sum reflected there in. The witness examined to prove the document had not supported the case of the prosecution and hence the same could not have been relied upon.
The finding that jewellery seized from the locker which was in the name of Geetha Rao not having been claimed by any person is incorrect. Honnagangamma had claimed it by filing an application and furnishing details of the same. That application has never been considered. The jewellery had obviously been left in the custody of Honmagangamma by Geetha Rao and hence she was claiming it. If only there had been an enquiry on that aspect, it could possibly have been demonstrated.
As regards that three house properties, two of which were admittedly in the name of Kaladhar has been unfairly denied to him, on the ground that he could not have mustered the resources to acquire the same as he would have been too young and not much of a business man to have the capability of acquiring the same. It is not clear as to how this assumption is arrived at.
Significantly, in the entire judgment, the trial court has failed to indicate the exact proportion of the wealth by which it had found that the appellant had acquired the same and that it was disproportionate to his known sources of income. This singular circumstance would vitiate the judgment of the trial court. As the appellant is no more, no purpose would be served even if the matter should be remanded to the trial court on this aspect. The suggestion in this regard by the learned Special Public Prosecutor that this court itself could embark on the exercise of ascertaining the same with reference to the evidence on record would only result in a conclusion that the prosecution had failed to establish its case beyond reasonable doubt, for more than reason already indicated.
In the result, the appeal is allowed. The judgment of the court below is set aside. The appellant is deemed to have been acquitted. The State shall return the properties that were seized and directed to be confiscated by it, by the court below. The same shall be returned to the respective persons from whose custody they were seized or the legal representatives thereof. The fine amount, if any, paid shall be refunded to the widow of the appellant.