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Judgment
V. Jagannathan
The appellant calls in question his conviction by the trial Court in respect of an offence punishable u/s 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 and consequent sentence of two years S.I and Rs. 10,000/- fine imposed by the trial Court and in addition forfeiting Rs. 3,92,639/-.The case of the prosecution in short is that the accused white working as Junior Telecom Officer in BSNL, Jagalur Telecom Exchange, Davanagere was found in possession of Rs. 4 lakhs and two gold pieces weighing 22.410 grains and 22.860 grams respectively and further cash of Rs. 7,120/- along with house hold articles and according to the prosecution, during the check period from 01.12.2000 to 16.12.2001, the accused was having assets disproportionate to his known sources of income to an extent of Rs. 4,14,894/- and would offer no satisfactory explanation for the same. Therefore, the accused was charge sheeted.
Following the accused not pleading guilty to the charge, the prosecution let in evidence by examining FWs 1 to 8 and got marked 20 documents along with six MOs. On the defence side, DWs 1 to 4 were examined and 8 documents were marked. Learned trial Judge after appreciating the evidence on record, accepted the prosecution case having been proved beyond all reasonable doubt and concluded that the accused was found in possession of the income to an extent of Rs. 3,92,639/- which was in excess of known sources of income and accordingly, accused was convicted and sentenced as mentioned earlier.
Sri. S.G. Rajendra Reddy, learned counsel for the appellant and Sri. D.G. Hegde, learned counsel for the respondent-CBI were heard at great Length and I have also perused the records of this case.
Learned counsel for the appellant put forward four main grounds to challenge the conviction of the appellant and they are:-
i) That the check period was taken as between 01.12.2000 to 16.12.2001 which is hardly one year and the short period having regard to the previsions contained in Section 13(1)(e) of the P.C. Act. Therefore, on this ground atone, the prosecution has to fall and consequently, conviction cannot be sustained.
ii) Second point put forward is that, the trial court convicted the appellant on the ground that the annual property report was not filed by the accused.
iii) Thirdly, it is contended that the accused was not put necessary questions for him to properly answer the prosecution case and a look at the statement recorded by the trial Court would go to show that hardly eight questions were put to the accused and the question put did not relate to the income of the appellant during the entire period of service and what was the expenditure incurred by the appellant and no question was put to the items seized and therefore, the manner of recording of 313 statement has greatly prejudiced the case of the accused and for this reason also conviction cannot be sustained.
iv) By referring to the (sic) panchanama Ex.P3, it was argued that, even the officer who seized the currency notes was not aware of the exact currency notes available and what was the denomination of the said notes. But only, on the say of the accused, they took it as Rs. 4 lakhs. Even the accused was forced to sign the said panchanama as is evident from the explanation given by the accused.
Another contention put forward is that, it has come in the evidence of PW.4 that the annual report has to be filed by the accused by the end of December, 2001 and therefore the accused had sufficient time to submit his report, but the investigation was confined only to the period up to 16.12.2001 and thus, the accused was deprived of submitting his annual report by the end of December, 2001.
Apart from the aforesaid defects in the prosecution case, learned Counsel Sri. S.G. Rajendra Reddy also argued that, the trial court has totally ignored the defence of the accused and the evidence of DWs 1 to 4 has totally lost sight of. Through the defence evidence, accused has shown that he was paid Rs. 1,80,000/- by DW.2 and DW.3 was the witness for the said transaction end accused himself gave evidence as DW.4. If the evidence of the defence were also considered, the question of accused being in possession of excess amount would not have arisen.
It is then pointed out that, it has come in the evidence that the wife of the accused was also an earning member as she was a teacher and her income was not taken into account. During the period from 1992 to 1998, wife of the accused got salary of Rs. 87,800/- and that amount has not been taken into consideration although the trial court accepts that the wife of the accused was a teacher and was earning certain sum as salary and non inclusion of the wife''s income is also a defect in the prosecution case.
Finally, it is argued that the very FIR that has led to the charge sheet being filed in the instant case was also the subject matter of the ''B'' report Sled by the I.O. in R.C. No. 33(A)/2001 and in view of the said ''B'' report having been accepted by the trial court, accused should not have been once again charge sheeted under the P.C. Act in respect of the very same alleged irregularities.
One other ground put forward is that, PW.8 Shashikumar was not authorised to take up the investigation in view of the letter of authorisation Ex.P15 mentioned in the name of one S.K. Nair to take up investigation in this case. Therefore, the entire investigation done by PW.8 is invalid. For this reason also, conviction cannot be sustained.
In the light of the aforesaid contentions put forward, it is submitted that the appellant be acquitted of all the charges levelled against him by setting aside the judgment of conviction passed by the trial court.
On the other hand, learned counsel for the respondent-CBI supported the judgment of the trial court with all force and contended that, filing of the ''B'' report is nothing to do with the present case as is clear from the very report itself and the accused being not able to explain the possession of Rs. 4 Lakhs by him, necessarily a separate case was registered under the RC. Act. As far as the check period is concerned, it is argued that, there is no indication in Section 13(1)(e) of the P.C. Act that the check period should necessarily cover the entire period of service of the accused. In this connection, learned counsel placed reliance on the Apex Court decision reported in State of Maharashtra Vs. Pollonji Darabshaw Daruwalla, .
As far as the other grounds urged by the appellant''s counsel are concerned, it is argued that the accused did not furnish necessary information as required under Rule 18(1)(e) of the Civil Service Rules to his Superiors about the receipt of the amount by him by any other source and even as a loan from various persons. Accused was also did not submit the annual report as required to be done by him and no explanation is forthcoming from the accused as to how he came in possession of Rs. 4 lakhs and it is on the say of the accused only that Rs. 4 lakhs were recovered by the investigating agency. The reasons given by the trial court cannot be faulted and it is submitted that the trial court has taken note of the entire material on record and has observed at para-32 of its judgment that the accused did not give the particulars as required under Rule 18 of the Civil Services Rules and has not produced any document to show what was the income earned by his wife as a teacher.
It is also argued that the accused would not have kept the amount with him when normally a person who is in service in Central Government would keep the amount in a bank in any form and in the instant case, no such bank documents, account books or pass books have been produced by the accused. Therefore, the trial court taking all these factors into account had disbelieved the defence version. As such, the evidence appreciation by the trial court cannot be termed as erroneous nor the findings recorded is perverse in nature. Consequently, the appeal is liable to be dismissed.
In support of the aforesaid submissions, learned counsel for the respondent-CBI placed reliance on the decisions reported in State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar, , AIR 1993 SC 313 and AIR 2001 SC 2464. The aforesaid decisions were cited to contend that when the accused had failed to explain satisfactorily the possession of Rs. 4 lakhs by him, the conviction therefore is not liable to be interfered with, by this Court. Hence, the appeal be dismissed.
In the light of the aforesaid contentions put forward by both sides, whether in the light of the evidence on record, the trial Court could have convicted the appellant is the point for consideration,
The specific case of the prosecution is that, the accused during the check period from 01.12.2000 to 16.12.2001 was found in possession of cash amounting to Rs. 4 lakhs along with two gold pieces weighing 22.410 grams and 22.860 grams and cash of Rs. 7,120/- and the assets acquired by the accused were found to be in excess to the tune of Rs. 4,14,894/-. The case against the accused started with the preliminary investigation conducted relating to certain irregularities in the form of illegal STD routes and illegal calls made without any billing and the team led by FW.2-Raghavendra, retired DGM (Vigilance) BSNL, on getting information about the illegal ISD/STD rackets were going on at the Jagalur Telephone Exchange, Davanagere, visited the said telephone exchange and they were told by the accused that the accused was collecting Rs. 10,000/- per week from 2-3 persons for having used STD/ISD) calls and RS. 4 lakhs were found in his house and remaining Rs. 2 lakhs has been spent by the accused. A local enquiry was held by the officers namely Lakshminarayana and Raju and thereafter, the Mahazar was drawn as per Ex.P3 in regard to the seizure of currency notes and ''B'' report came to be filed by the I.O. seeking closure of the case registered in RC No. 33(A)/2001.
Learned counsel for the respondent-CBI does not dispute the fact of ''B'' report having been filed and accepted by the trial court. Therefore, the question of the accused being involved in illegal racket does not arise. Then what remains is whether the accused was found in possession of the excess income of Rs. 4 lakhs with him.
FW.4-H.R. Shepur, retired Section Supervisor of the Davanagere Telecom District has deposed in his evidence that the accused joined as Junior Telecom Officer at Jagalur on 27.10.1998 and has spoken to the annual report filed by the accused after the end of 31.12.2000. It is also deposed by this witness that the annual property returns have to be filed every year as on the end of December, Therefore, it is clear from the said evidence that the accused had time till 31.12.2001 to file his report. Much before the dead line could be reached, charge sheet was filed covering the period up to 16.12.2001. As such, the trial court could not have found fault with the accused for not having filed the annual property reports and consequently, the reference made by the trial court to Rule 18(1)(i)(b) therefore cannot be given much weight.
Accused had joined the service of the department as Telephone Inspector in the month of June 1985 and this say of the accused has not been disputed by the prosecution. Therefore, the number of years of service put in by the accused up to the date of the charge is around 16 years. The prosecution ought to have placed evidence to show what was the total salary earned by the accused during all these 16 years. There is no evidence placed by the prosecution in this regard though the statement enclosed along with the charge sheet refers to certain investment made by the accused and the total income earned for the check period from 01.12-2000 to 16.12.2001. Thus, the entire income of the accused by way of salary up to the date of the charge sheet is not placed by the prosecution before the trial court.
Secondly, the prosecution though has examined 8 witnesses, no evidence is placed to show as to what was the actual expenses incurred by the accused during the entire period of service and what was his total savings.
PW.5- G.T. Vishwanath, Branch Manager of the State Bank of Mysore, Jagalur has spoken to the bank account in the name of the accused and his wife. PW.6-Ramakrishna speaks about the raid conducted and the search list being marked as per Ex.P11. PW.7 is the Police Inspector who conducted the surprise check and speaks about Ex.P2 the mahazar.
PW.8-Shashikumar has deposed in his evidence that he registered the case in Crime No. R.C. 28(A)/2002 against the accused in respect of the offence u/s 13(2) r/w 13(1)(e) of the P.C. Act and submitted the FIR as per Bx.P12. He also deposed in his evidence that u/s 17 of the P.C. Act, the Superintendent of Police, CBI has issued authorisation dated 25.09.2002 authorising PW.8 to investigate the case and the said authorisation is Ex.P. 15.
A look at Ex.P.15, the letter of autorisation reveals that the officer who was authorised in conduct the investigation against the accused was one S.K. Nair and not PW.8. Therefore, there is a serious infirmity in the prosecution case at the very inception itself relating to the investigation. When the officer who is not authorised, takes up the investigation, the entire investigation therefore will have to be termed as illegal.
Though, learned counsel for the respondent-CBI argued that no question was raised with regard to authorisation, yet, the evidence on record revealed that, PW.8 had no valid authorisation to investigate the case against the accused notwithstanding that the said witness Stating that he was issued authorisation once again on 29.10.2002. The two letters of authorisation produced before the trial court as per Exs.P15 and P17 shows the name of S.K. Nair and not PW.8. Therefore, this serious infirmity in the prosecution case affects the outcome of the trial itself. Learned trial Judge did not take note of this important aspect of the matter with regard to the validity of the investigation conducted by PW.8.
Accused has also led the defence evidence by examining DWs 1 to 4 and learned trial Judge did not take note of the defence evidence which is another serious defect in the prosecution case. The defence evidence reveals that, according to DW.1, he executed agreement of sale in fevour of the accused and had taken Rs. 10,000/- as earnest money.
DW.2-Parameshwarappa deposed in his evidence that, he got Rs. 3 lakhs from the retirement benefits and accused approached him for monetary help and therefore, DW.2 paid Rs. 1,80,000/- to the accused on 10.12.2001 and also said that the accused also executed the promissory note in favour of DW.2
DW.3 is another witness by name Jannappa, who speaks to the transaction between Mallikarjuna and the accused and the accused having paid Rs. 10,000/- to Mallikarjuna. This witness has further deposed that one Parameshwarappa, a retired teacher agreed to pay Rs. 1,80,000/- to the accused with interest and the said amount was paid in the presence of DW.3.
The aforesaid evidence of these three witnesses have not been elucidated in the cross-examination,
DW.4 is the accused himself and he has deposed about, the joining of service in 1985 and his wife also working as post graduate teacher in Jawahar Navodaya Vidyalaya at Gajanur, Shimoga District and she was getting salary of Rs. 2,700/- p.m. The aforesaid amount which was recovered from the house is concerned, DW.4 has deposed that the amount of Rs.4 lakhs was from his salary and salary of his wife and GPF advance, bonus and amount received from the Hubli Telecom Co-operative Credit Society. He also deposed about the transaction between himself and Mallikarjuna and having taken loan of Rs. 1,80,000/- from Parameshwarappa apart from other loans. It is also deposed by him that, he signed Ex.P3 under oral protest.
Thus the defence also has placed sufficient evidence to show that the wife of the accused was a post graduate teacher and earning certain amount. The trial court in the course of its entire judgement has not referred to the defence evidence at all and has ignored the testimony of the aforesaid witnesses DWs 1 to 4, While accepting the fact that the wife of the accused also being a teacher and earning some amount, the trial court did not give any allowance to the income of the wife of the accused while computing the excess in the hands of the accused.
The entire check period has been confined to only one year and although Section 13(1)(e) does not say so many words as to what should be the minimum period to be reckoned, the Apex Court in the decision referred to by learned counsel for the respondent-CBI in the case of State of Maharashtra Vs. Pollonji Darabshaw Daruwalla, has held that though there can be no general rule or criteria valid for all cases in regard to the choice of a period for which accounts are taken to establish misconduct u/s 5(i)(e) Old Act 1947, the choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable the true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate.
In the said case, the Apex Court has found that a period of 10 years cannot said to be incapable of yielding such true and comprehensive picture. Applying the aforesaid provisions in the case on hand, it is not said to be one year period would be sufficient enough to yield true and comprehensive picture of the known sources of income of the accused, particularly when the accused has put in 16 years of service in Central Government and the wife was working as post graduate teacher as is evident from the deposition of the accused himself and the observations made by the trial Court itself.
Since filing of the ''B'' report has given a clean chit to the accused, so far as he being involved in illegal racket, the prosecution therefore ought to have establish that the amount found with the accused was, actually in excess of the known sources of income of the accused and his family. No such evidence is placed by the prosecution in this regard. The trial court has not considered the expenditure of the accused and his family and what could have been the savings of the accused as a senior officer in service apart from his wife''s earnings.
The trial court has questioned the accused in 313 statement and a look at the statement recorded by the trial court goes to show that the learned trial Judge has recorded a brief statement of the accused and hardly eight questions were put to the accused and in the said questions put to the accused, there is no indication as to what was the income of the accused from his entire period of service or what was his actual expenditure and what was the assets and other properties held by the accused and his family and in the absence of these materials being put to the accused in 313 statement, recording of the statement in the instant case appears to be of formality and the trial court did not apply its mind while recording the accused statement by putting to him the (sic) material for being part of the evidence on record.
Therefore, the accused has been greatly prejudiced and the trial court also did not even ask the accused as to the income of the wife of the accused though in the course of the judgment, learned trial Judge has accepted that the accused wife was a teacher and was getting certain amount. Thus, the recording of the 313 statement is not in accordance with law. This is also a serious infirmity in the prosecution case.
The settled question in law to attract the charge u/s 13(1)(e) of the Act as has been laid down by the Apex Court in the case of M. Krishna Reddy vs. State Deputy Superintendent of Police, Hyderabad AIR 1993 SO 313 is that, to substantiate the charge u/s 13(1)(e), the prosecution must prow the following ingredients namely;-
(i) the prosecution must prove that the accused is a public servant.
(ii) the nature and extant of pecuniary-resources or property which were found in his possession.
(iii) it must be proved as to what was his known source of income i.e., known to the prosecution,
(iv) it must prove quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income.
It is only when all the above ingredients are satisfactorily proved, that the offence of criminal misconduct u/s 13(1)(e) of the Act gets completed. In the instant case, the prosecution has not established all the aforesaid ingredients as mentioned earlier.
Thus, on careful examination of the evidence on record, I am of the view that the prosecution case suffers from several defects and one of the important defect is the investigation itself being invalid on account of PW-8 having no proper authorisation to conduct the investigation. Secondly, the evidence does not indicate what was the total income of the accused during the entire period of service and what was the income of his wife and what was the expenditure incurred by the family and what was the savings of the accused. The accused not filing the annual property report is not a serious defect in view of the accused still having time till the end of December 2001 to file his report.
That apart, as has been observed by the Apex Court in the case of Ashok Tshering Bhutia Vs. State of Sikkim, , non compliance of Rules will not adversely affect the evidentiary value of statement of immovable properties inherited, in the instant case also, merely because there was no non compliance of the relevant service rules, though as mentioned earlier, the accused still have the time to comply with the Rules before the end of December, 2001, the trial court could not have made much of the said defect to hold that the accused was in possession of the income excess to his known sources of income. As the defects referred to above are of such a nature, the trial court could not have convicted the appellant and as such, the evidence appreciation by the court below is far from satisfactory and all the evidence on record, particularly the defence evidence was totally ignored by the trial court. Therefore, the decisions referred to by learned Counsel for the respondent-CBI are not applicable to the instant case in view of the aforesaid facts and circumstances and the nature of evidence let in by the prosecution itself. I am therefore of the view that it is a case where the trial court ought to have given the benefit of doubt to the accused instead of holding that the prosecution has proved its case beyond all reasonable doubt.Hence, the following order is passed:-
(i) Appeal is allowed and the judgment of conviction and sentence passed by the trial court stands set aside.
(ii) Appellant is acquitted of the offences with which he was charged by giving him the benefit of doubt.
(iii) The amount recovered from the appellant and also the fine amount be refunded to him,
(iv) His bail bond stands cancelled.