N.J.Selvakumar vs The State Rep. By on 31 October, 2018

0
44

Madras High Court

N.J.Selvakumar vs The State Rep. By on 31 October, 2018

                                                                                          Crl.A(MD)No.527 of 2018

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                    Date of Reserved                         27/01/2025
                                    Date of Pronounced                       24/02/2025


                                                            CORAM

                                     THE HONOURABLE MR. JUSTICE G.ILANGOVAN

                                             Crl.A(MD)No.527 of 2018

                 N.J.Selvakumar                                  : Appellant/Sole Accused

                                                        Vs.

                 The State rep. by
                 Inspector of Police,
                 Vigilance and Anti Corruption Wing,
                 Nagercoil,
                 Kanyakumari District.          : Respondent/Complainant


                                  Prayer: This Criminal Appeal is filed under Section

                 374       of      the   Criminal   Procedure            Code,           to   set   aside   the

                 judgment of conviction, dated 31/10/2018 made in Special

                 Case No.3 of 2007 on the file of the Special Judge-cum-

                 Chief Judicial Magistrate, Nagercoil and sentence imposed

                 on the appellant and acquit the appellant and pass such

                 further or other orders.



                                  For Appellant              : Mr.R.Anand
                                                               for Mr.S.Sathiya Chidambaram

                                  For Respondent             : Mr.R.Meenakshi Sundaram
                                                               Additional Public Prosecutor




https://www.mhc.tn.gov.in/judis                ( Uploaded on: 05/03/2025 06:35:59 pm )
                 1/27
                                                                                           Crl.A(MD)No.527 of 2018


                                                     J U D G M E N T

This Criminal Appeal is filed against the judgment

of conviction and sentence passed in Special Case No.05 of

2015 by the Special Judge-cum-Chief Judicial Magistrate,

Nagercoil, dated 23/07/2019.

2.The case of the prosecution in brief:-

The accused was working as Senior Pharmacist in the

Medical Service from 01/08/1995 to 31/03/2000. During that

period, he acquired and in possession of pecuniary

resources and the property in his name and in the name of

his wife, which were disproportionate to his known source

of income to the tune of Rs.5,17,395.17/-. Based upon this,

a case in Crime No.3 of 2003 was registered by the

respondent police for the offence punishable under section

13(2) r/w 13(1)(e) of the Prevention of Corruption Act,

1988. After completion of the investigation, final report

was filed. It was taken on file by the Special Judge-cum-

Chief Judicial Magistrate, Nagercoil in Special Case No.3

of 2007. After completing 207 Cr.P.C proceedings, the

following amended charge was framed against the accused, on

18/02/2015:-

                                             “The          accused               joined           as
                                    Pharmacist        in        Tamil           Nadu        Health
                                    Department          in          Mahabalipuram                 on

https://www.mhc.tn.gov.in/judis                  ( Uploaded on: 05/03/2025 06:35:59 pm )
                 2/27
                                                                                            Crl.A(MD)No.527 of 2018

                                   20/10/1984,        serving           various            posts    in
                                   various places; As per the statement of
                                   the    assets       and        liabilities                as     on
                                   01/08/1995,         as        per     Statement-I               was
                                   estimated      at     Rs.2,52,165.11/-                    in    the
                                   name of the accused and his wife name;
                                   As per the amendment statement-II as on
                                   31/03/2000,         he         was        having           income

estimated at Rs.8,65,516.66/-; The known
source of income of the accused and his
wife as on 31/03/2000, as per the
amended Statement-III was estimated at
Rs.5,95,603.00/-; As per Statement-IV,
the expenditure has been estimated at
Rs.4,99,646.62/-; The savings was
estimated at Rs.95,956.38/- as per
Statement VI; As per the amended
Statement-V, the total assets and
liabilities of the accused and his wife
was estimated at Rs.6,13,351.55/-; As
per the Statement-VII, the
disproportionate asset was estimated at
Rs.5,17,395.17/- and thereby, the
accused committed an offence punishable
under section 13(2) r/w 13(1)(e) of the
Prevention of Corruption Act, 1988.”

3.To that charge, the accused pleaded not guilty

and claimed to be tried.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
3/27
Crl.A(MD)No.527 of 2018

4.During the trial process, on the side of the

prosecution, 36 witnesses have been examined and 68

documents marked. On the side of the accused, one witness

was examined and 4 documents marked.

5.PW34 was working as Inspector of Police attached

to the Vigilance and Anti-Corruption Department,

Kanyakumari. They received reliable information that the

accused amassed wealth disproportionate to his known source

of income. Based upon which, he registered a case in Crime

No.4 of 2003 under section 13(2) r/w 13(1)(e) of the

Prevention of Corruption Act and submitted the FIR to the

Court and the further investigation was handed to Sundar

Rajan, Inspector of Police. In the information, it was

stated that the accused was working as Pharmacist in the

Government Hospital, Kuzhithurai, During the check in

period between 01/08/1995 and 31/03/2000, he amassed wealth

to the tune of Rs.5,17,395-17/-. Before that, he conducted

a preliminary enquiry on the basis of the reliable

information and submitted a report. Upon which, the case

was registered.

6.PW35 took up the further investigation. He

perused the records and recorded the statement of the

witnesses. On 22/01/2004, he sent request to the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
4/27
Crl.A(MD)No.527 of 2018

Superintendent Engineer, TNEB and Assistant Director of

Land Survey Department requesting two official witnesses

for assisting the investigation. At the request made by

him, one Valan Arasu and Nambu Visvanathan appeared before

him and prepared a report for making search in the house of

the accused, sent intimation to the concerned Court. On

23/01/2004 at about 02.00 pm, he went to the house of the

accused along with the Vigilance Officials and prepared the

inventory of the articles found in the house and other

records and registers, passport etc. He prepared mahazar

under Ex.P44 and seized 60 sovereigns of gold jewels from

almirah and 9 sovereigns of gold jewels owned by the

accused’s wife. After making all those investigations, he

collected assets and liabilities during the check in

period. From his assessment, he came to know that during

the check in period, the accused has drawn Rs.6,93,262/-.

Expenses were estimated at Rs.4,99,646.62/-. Savings were

estimated at Rs.1,93,615.38/-. From the above said

calculation, he found that the disproportionate asset was

Rs.6,33,144.62/-. So, notice was issued to him, on

24/06/2004 under Ex.P61. The accused sent explanation, on

02/08/2004 under Ex.P62. From the perusal of the

explanation offered by the accused, some of the items were

accepted. Again another notice was issued, on 28/02/2005

under Ex.P63.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
5/27
Crl.A(MD)No.527 of 2018

7.He submitted the final explanation. After perusal

and making reassessment, he assessed the disproportionate

asset as Rs.5,17,395.17/-. He submitted a report to the

Director of Vigilance and Anti-Corruption Department. Then,

he collected the relevant records from various Departments.

Later, he was transferred.

8.The further investigation was taken by PW36. He

perused the records, again enquired the witnesses already

examined by his predecessor and finding that the records

and statements were in order, he submitted a proposal for

obtaining sanction order. After getting sanction order,

completed the investigation and filed final report, on

13/07/2007.

9.PW1 is the sanctioning authority, who issued

sanction order under ExP1.

10.PW2 has spoken about the salary particulars of

the accused during the relevant period and assets and

liabilities statement submitted by the accused, which was

in turn handed over to the Investigating Officer.

11.After closure of the prosecution evidence, when

the accused was questioned, u/s.313 Cr.P.C., on the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
6/27
Crl.A(MD)No.527 of 2018

incriminating circumstances appearing against him, he

denied the same.

12.At the conclusion of the trial process, the

trial court convicted the accused for the offences under

sections 13(1)(e) and 13(2) of the Prevention of Corruption

Act, 1998, sentenced him to undergo 3 years RI and imposed

a fine of Rs.10,000/-, in default to undergo one year SI

for each offence and directed the sentences to run

concurrently.

13.Against which, this criminal appeal is preferred

by the appellant.

14.Heard both sides.

15.We will straightway go to the initial estimate

made in the final report, upon which the original charge,

dated 04/04/2008 was framed.

16.The difference between the original charge and

the amended charge can be tabulated hereunder so that it

can be appreciated properly.





https://www.mhc.tn.gov.in/judis                 ( Uploaded on: 05/03/2025 06:35:59 pm )
                 7/27
                                                                                                Crl.A(MD)No.527 of 2018


                  Statement                          Original Charge                       Amended Charge
                                                      (Estimation)                         (Estimation)
                  Statement-I                                  38,656.66                         2,52,165.11
                  Statement-II                                     -                             8,65,516.66
                  Statement-III                            6,93,262.00                           5,95,603.00
                  Statement-IV                             4,99,646.62                           4,99,646.62
                  Statement-V                              8,26,760.00                           6,13,351.55
                  Statement-VI                             1,93,615.38                               95,956.38
                  Statement-VII                            6,33,144.62                           5,17,395.17
                  Total                                  28,85,055.28                           34,39,634.49



17.From the comparative statement of the original

charge and the amended charge figures, it shows that though

difference between these two charges in respect of the

Statement-VII comes around Rs.1,15,749.45/-, there is

omission in the original charge with regard to the

Statement-II. This, according to the appellant, is per se

illegal and no opportunity was given to the appellant

herein to put forth his argument with regard to the amended

charge.

18.Apart from that, it is also submitted that after

amendment of the charge, witnesses were not recalled and

re-examined on the side of the prosecution. So, the

appellant has also lost the right of making defence in

respect of the amended charge by way of cross examining

many witnesses. This was the first preliminary objection

made by the appellant. But for which, the appellant has to

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
8/27
Crl.A(MD)No.527 of 2018

blame himself for the issue. Proper application was made by

the prosecution to amend the charge. After hearing both

sides, that application was allowed. Since there was no

revision by the appellant, that order has became final. In

pursuance of the above said order only, the amended charge

was framed. The accused was put on the question, he denied

the charge as usual. But unnecessary application took out

by the appellant to summon the Director of Vigilance and

Anti-Corruption Wing. That application came to be dismissed

by this court. Against which, revision was preferred. It

was also dismissed. The problem arose for the appellant in

not engaging the Legal Practitioner. It appears that at one

point of time, he was represented by an Advocate, later he

thought it fit to defend the case as party-in-person. This

is the reason for him to unnecessarily drag on the matter

to unknown direction. He ought to have challenged the

application filed by the prosecution for amendment of the

charge. Having lost that opportunity, having participated

in the further proceedings, it may not be proper on his

part to blame the Court. This ground is not available to

him. So, it has to be rejected outright.

19.But, as mentioned above, in the original charge,

an important point with regard to the figure mentioned in

Statement-II was not mentioned. Later it was corrected.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
9/27
Crl.A(MD)No.527 of 2018

20.With this in mind and the background facts, let

us go further.

21.Apart from that, another preliminary objection

that was made by the appellant is that the second show

cause notice was issued to him by the Investigating

Officer, for which, he sent a reply, that was not

considered by the Investigating Officer. That file is

marked as Ex.P62 on the side of the prosecution. Here also,

there is some discrepancy in the figure in the show cause

notice dated 20/06/2004 under Ex.P61, wherein the

disproportionate asset was estimated at Rs.6,33,144.62/-,

which was the original charge as mentioned above. For that

show cause notice, the accused submitted reply under

Ex.P62. He has given his own estimation. We will deal about

that category wise later.

22.Now, according to the appellant, this

explanation was not considered by the Investigating Officer

and filed the final report.

23.Now, we will go to the evidence of the

Investigating Officer on this aspect.

24.PW36 was the final Investigating Officer. He

filed the final report. The date of final report is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
10/27
Crl.A(MD)No.527 of 2018

13/07/2007. The date of sanction order is dated 20/03/2007.

The date of explanation for the second show cause notice is

dated 02/08/2004. He would say that he did not examine and

enquire the accused. On the contra, he would say that since

the accused already submitted his explanation, he did not

make any enquiry with him. Before filing the final report,

it is the duty of the final Investigating Officer to verify

the explanation offered by the accused. In the explanation,

he has not stated anything as to the verification made by

him in respect of the points mentioned in the explanation.

Not even, he has stated during the course of the evidence

that the particulars mentioned by the accused in the second

show cause notice, explanation was found to be incorrect.

So, PW36 failed in his duty in not considering the

explanation offered by the appellant.

25.Now we will go to the evidence of the first

Investigating Officer namely PW35. He would say that in

pursuance of the show cause notice, dated 24/06/2004, the

accused submitted the explanation on 02/08/2004. After

perusing the explanation offered by the accused, it was

found that some of the particulars mentioned by him were

acceptable. So, those explanations were accepted, later by

letter, dated, 28/02/2005 another show cause notice was

issued, for which the accused submitted his reply on

15/03/2005. After perusal of the explanation offered by
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
11/27
Crl.A(MD)No.527 of 2018

him, final estimation was made. There is a little bit of

confusion in this regard.

26.When the argument was advanced by the appellant

that the final notice was issued on 28/02/2005, he offered

his explanation on 15/03/2005, but after 15/03/2005, second

explanation was offered by the accused. Probably he is

making some confusion regarding the second explanation

offered by him. So, the matter was reopened for

clarification and the appellant was required to verify

whether the second explanation was offered by him after

15/03/2005. He was referring only the explanation, dated

15/03/2005 and no subsequent to that. So, it is seen that

the explanation, dated 15/03/2005 was taken into account by

PW35 before concluding the estimation.

27.We will take the final explanation, dated

15/03/2005 in the later part of the judgment.

28.Another preliminary point is that PW36 the

Investigating Officer was personally inimical against the

appellant. So, he took much interest in the investigation

and filed the final report. So, according to him, he is

seriously prejudiced. But when this argument was raised

referring to some personal issue, I made it clear to the

appellant that absolutely, there is no evidence in this
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
12/27
Crl.A(MD)No.527 of 2018

regard. Apart from that, it was not the grievance expressed

by him in the reply, dated 15/03/2005 expressing grievance

against the Investigating Officer. This ground is not

available to the appellant, when serious prejudice was not

caused to him during the course of the investigation. So,

this plea is rejected.

29.Another important point is estimation regarding

the house property. In this regard, we will straightaway go

to the evidence of PW36. Ex.P33 is the estimation report.

The estimation was prepared by the Assistant Executive

Engineer, counter signed by the Executive Engineer.

30.Perusal of the estimation report does indicate

that it contains so many corrections, additions, deletions,

which does not bear the certification of the concerned

Officer, who prepared the report, that is the corrections

were not certified by any one. The Investigating Officer

ought to have received proper certification regarding the

corrections. It was not done. Even he went to the extent

of stating that he did not examine the Officer, who

prepared the report. When it contains corrections,

deletion, additions etc., it ought not to have been

accepted as proved document by the trial court. But the

trial court thought it fit to take up as it is and recorded

a finding. The Investigating Officer is only a Collecting
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
13/27
Crl.A(MD)No.527 of 2018

Officer, who collected the estimation from the concerned

Authority. On that account, Ex.P33 has evidentiary value

has to be taken into account.

31.Another point is that the Investigating Officer

has not mentioned in the final report the percentage of the

disproportionate income. Why he omitted the same is not

explained by him.

32.Now we will go to the item-wise issue. The check

in period is 01/08/1995 to 03/01/2000. During that period,

the accused was working as Pharmacist in Kuzhithurai

Government Hospital, it is not denied and disputed.

33.The Statement-I contains figure as

Rs.2,52,165.11/-. According to the appellant/accused, the

items mentioned in the Statement-I belongs to him and it is

not disputed. But what is denied by him is that some more

properties were available to him in the form of immovable,

cash on hand, the property gifted in his wife’s name. In

respect of the cash on hand issue, the trial court has

recorded a finding that it was not properly established by

the accused. Even before this court, the appellant is not

able to establish that he was having Rs.37,680/- as cash on

hand. So, the finding of the trial court on this aspect

requires no interference.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
14/27
Crl.A(MD)No.527 of 2018

34.Regarding the installation of pump-set and

construction of compound wall, it was contended by him that

as per Ex.D1, he submitted the approval on 26/06/1995.

Permission was granted on 30/06/1995. The construction must

be completed before 30/06/1996. Even though, it was

submitted by the appellant that the construction was made

on 01/08/1995, but no documentary evidence was produced by

him, the date on which, the construction started, on which

date it was completed. There was no evidence.

35.Now in this aspect, we will go to the evidence

of the Investigating Officer namely PW34. In the plan

approval for the construction, well, compound wall and

pump-set were mentioned. In the explanation offered, the

accused has stated that he constructed a compound wall in

July 1995, which comes around Rs.72,000/-. So, it must be

deducted.

36.Regarding the standing trees, it was submitted

by the appellant that even prior to 01/08/1995, the

properties owned by his wife was having 113 grown up

coconut trees, 300 Rubber trees small in size, 80 grown up

trees.

37.In this regard, we will go to the evidence of

the Investigating Officer as to whether any spot
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
15/27
Crl.A(MD)No.527 of 2018

verification was made by him in this regard, since there is

specific point raised by the appellant in the explanation.

38.In the explanation, it was stated by him that

Rs.1,45,370/- was received as income by his wife during the

relevant period namely the check in period by selling the

old rubber trees, coconut trees etc. But, as mentioned by

the trial court Ex.P11 does not indicate the availability

of the standing trees. The purchaser was not examined on

the side of the appellant to show that the trees were also

purchased and separately valued. There is no Adangal

produced by the appellant. It is equally seen that the

Investigating Officer has not made any spot visit to the

property to verify the above said issue.

39.PW34 would say that during his enquiry, he found

that there was no income from the agricultural property.

So, he did not obtain any certificate from the Revenue

Authorities. Why he omitted to visit the place and verify

the physical availability of the standing trees was not

explained by him. Even not take care to examine the

purchaser mentioned by the appellant in his explanation.

Why he omitted all these things is not explained.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
16/27
Crl.A(MD)No.527 of 2018

40.No doubt that it is equally the duty of the

appellant to prove that he was having income from the

agricultural property. But he also failed. But the duty of

the Investigating Officer is more than that of the duty of

the accused to prove the case of the prosecution. It is the

bounden duty equally cast upon both sides. What applies to

the property belongs to the wife is also equally applies to

his property also.

41.Now coming to the Statement-II. The total

estimate is Rs.8,65,516.66/-. The main objection made by

the appellant is with regard to Item Nos.10 & 14.

42.Now we will take up Item No.14 first. It is a

Car bearing No.TN-07-D-6255 standing in the name of the

appellant’s wife. It was estimated at Rs.1,14,003/-. It was

objected by the appellant stating that it was not purchased

during the check in period. Actually, it was purchased on

07/04/2000 and the purchase is after the check in period.

But for valid and cogent reasons, the trial court over

turned the objections. Regarding the value of the purchase,

it calculated the same at Rs.82,000/-.

43.Perusal of the discussion made by the trial

court with reference to the evidence available on record

does indicate that it is a fair discussion and for valid
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
17/27
Crl.A(MD)No.527 of 2018

reasons, it estimated the purchase price at Rs.82,000/-.

The appellant failed to prove that it was purchased after

the check in period.

44.Now coming to the Item No.10 house property,

site was purchased by the appellant from one Suman. It was

not disputed by him. The site was purchased on 24/10/1990.

The approval was obtained from the concerned authority. Now

estimate was made as mentioned by the concerned authority

at Rs.4,54,293/-.

45.Now coming to the appellant’s case, it is stated

that it ought to have been estimated at Rs.1,00,000/-. But

the trial court has pointed out that in the assets and

liabilities statement additional submitted by the accused

as on 30/04/2001, he has shown the value of the housing

property at Rs.2,52,000/-. It is only an approximate value

mentioned by the appellant. The admitted value can be taken

as estimated value.

46.Now we will go further in detail Ex.P33 the

estimate report.

47.As mentioned above, there are corrections,

deletions, additions, etc, which were not properly

certified. PW19 was examined on the side of the prosecution
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
18/27
Crl.A(MD)No.527 of 2018

to prove the estimation. But reading of the evidence of

PW19 does not indicate that he personally verified the

calculation. He would say that he was working as Executive

Engineer during the relevant period. He was present in the

place of evaluation made by the Assistant Executive

Engineer by name Srinivasa Sundaram, Assistant Engineer

Sudhakar. According to him, the estimation was prepared on

the basis of the value prevailing in 1995-1996.

48.During the cross examination, he would admit

that the evaluation report was prepared by Srinivasa

Sundaram. It was submitted to him. After scrutiny, he put

his signature and submitted the same. But he has not

specifically stated in the certification corrections,

deletions as mentioned above. The Author of the document

namely Srinivasa Sundaram was not examined on the side of

the prosecution. Even though, PW19 was present at the

time of evaluation, he being the Supervisory Officer might

not have noticed the evaluation in minuets details as made

by Srinivasa Sundaram. So, as I already stated Ex.P33

cannot be taken into account by way of scrutinizing the

evidence of PW19, I reaffirm the said finding that Ex.P33

was not established properly by the prosecution. So, the

cost of construction mentioned by the appellant at

Rs.2,52,000/- can be accepted.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
19/27
Crl.A(MD)No.527 of 2018

49.The second objection made by the appellant in

respect of the Item No.3 in the Statement-II, in Survey

No.101/5 measuring about one Acre, there were standing

trees numbering about 300 rubber trees was suppressed by

the prosecution. The trial court has recorded a finding

that no evidence on the side of the appellant, either oral

or documentary to prove that there were 300 standing Rubber

trees is capable of yielding income. Whether this finding

is proper on record, we can turn to the evidence of PW7.

50.He would say that he was working as Village

Administrative Officer during the relevant period in

Kalkulam village. He issued a certificate of income under

Ex.P16. He would further say that after 1989, about 100

coconut trees were planted and 300 rubber trees before

1995. In 1997 latex were collected from 100 trees. In 1988,

99 and 2000 latex were collected from 150 rubber trees.

Since, at that time, rubber trees were grown up. The

coconut tress become unyielding. So, the coconut trees were

removed. In 2001, the latex were collected from 275 rubber

trees. He gave an opinion that during 1998, 1999 and 2000

there would not have been much income from the rubber

trees, since the return and the expenses would have been

same. In 2001, the appellant received Rs.6,000/- from 275

rubber trees. The properties were standing in the name of

the accused and his wife.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
20/27
Crl.A(MD)No.527 of 2018

51.But the evidence of PW7 was not taken into

account by the trial court during discussion. It has simply

shifted the burden on the appellant to prove the standing

trees, income, etc.

52.So, from the evidence of PW7, it is seen that

the trees which were standing in survey No.101/5 were not

taken into account by the Investigating Officer, while

making the statement-I. Even the evidence of PW7 regarding

the income also unbelievable one, he is not competent to

speak about the actual income derived by his wife and the

appellant from the standing trees. He has given another

opinion that it would not have given any profit. This

itself shows that he has not given evidence to the court to

resolve the issue, but supported the prosecution case. So,

the opinion given by PW7 regarding the income and the

equalisation of the expenditure and income has to be

rejected. Why this important aspect is omitted to be taken

note by the Investigation and the trial court is not

explained.

53.Now we will go to the evidence of the

Investigating Officer namely PW34. He would say that since

there is no agricultural income, he did not receive any

certificate from the concerned Village Administrative

Officer. This is factually incorrect since PW7 was

examined.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
21/27
Crl.A(MD)No.527 of 2018

54.Now we will go to the evidence of the further

Investigating Officer namely PW35. He has simply stated

that he has examined one Ganesan regarding the agricultural

income. But as mentioned above, neither in Statement-1 nor

in Statement-II the standing trees and the income were

mentioned. The trial court, without even considering the

evidence of PW7, it has recorded a negative finding. So,

the statement prepared in respect of Statement-1 and II

does not indicate the correct figures. When that was not

indicated the correct figures, there is no occasion for

this court to verify the same. This prima facie defect was

not fairly noticed by the trial court. It has simply

accepted the prosecution version, which in my considered

view is not fair and proper. The Investigating Officer in

all fairness would have obtained proper certificate from

the Rubber Board and approximate income from the grown up

trees, profit, etc. As mentioned above, PW7 is not

competent to speak about all these things. This is the

major defect, this court found while perusing the records.

55.Regarding the Statement-1, it was contended by

the appellant that a sum of Rs.37,680/- was en-cashed by

him from Jenit Bankers before 01/08/1995, kept by him in

cash. But for valid reasons, that contention was rejected

by the trial court. But one thing must be added that the

document under Exs.P57 to P60 ought to have proved by
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
22/27
Crl.A(MD)No.527 of 2018

examining the officials from the Banks, as per the Bankers

Evidence Act. But however, it has been omitted. No

objection was made by the appellant at the time of marking

the document. Of course, the above said contention was

raised, but it came to be rejected, I need not interfere in

that portion.

56.Another contention was with reference to 31

cents situated in Verkilambi village in the name of the

appellant. It was contended that there were 80 standing

rubber trees. That was not included in the Statement-I. PW8

was examined on the side of the prosecution in this regard.

There is no clear evidence on the side of the appellant to

show the correct number of trees planted by him. So, that

contention was also rejected by the trial court for valid

reasons.

57.Regarding the income namely Statement-III, the

trial court has done a meticulous job by taking into the

interest received by the appellant from various savings,

deposits, etc. It finally arrived at the figure of

Rs.7,60,621/-.

58.Now the expenses Statement-IV. Item

Nos.1, 6, 10, 17 to 20 was disputed by the appellant.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
23/27
Crl.A(MD)No.527 of 2018

59.Now we will see, that was validly satisfied by

him. Item No.1 refers to the expenditure incurred by the

appellant for his domestic purpose. The annual estimate

expenses has been collected as per the price index in the

Statutory Body issued from time to time. It has approximate

value of expenses. Item Nos.4 and 5 are relating to land in

Veeyanoor village standing in the name of the appellant. As

mentioned above, the standing trees were not properly

calculated, estimated in Statement-I. Equally another

mistake has been committed by the prosecution in not

mentioning the correct income in respect of the property

standing in the survey No.101/5.

60.As mentioned above, the trial court has simply

brushed aside that, that was not established by the

appellant. As mentioned above, in all fairness the

Investigating Officer ought to have mentioned the income

derived and the expenses incurred regarding the

agricultural operations. But as mentioned above, the trial

court has committed error in not including the income

derived from the standing trees in Survey No.101/5. Unless

that amount is included, no correct figure can be arrived

at. The question of estimating the income by this appellate

court can not be done in the absence of any clear evidence

as mentioned above. But, as mentioned above, unless the

expenses incurred by the appellant for the agricultural
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
24/27
Crl.A(MD)No.527 of 2018

operation has been included, the statement cannot be

correct.

61.So, the discussion made above clearly indicates

that statement Nos.1, 2 and 3 were not properly prepared

and submitted by the prosecution. The trial court has also

omitted to take into account the defects pointed by me. In

view of the above said defective statement, the finding

recorded by the trial court that the appellant has amassed

wealth disproportionate to the known source of income is

liable to be set aside giving benefit of doubt.

62.Further, the Hon’ble Supreme Court in the

judgment reported in B.C.Chaturvedi Vs. Union of India and

others (1995)6 SCC 749 held that in cases of amassing

wealth disproportionate to the known source of income under

section 13(1)(e) of the Prevention of Corruption Act, 10%

margin has to be given deduction. If the asset acquired is

more than 10% of the income, then the employee can be held

liable. But here, as mentioned above, I am unable to render

any finding, in view of the above said defects. So, whether

the accused namely the appellant herein was in possession

of asset more than 10% of his income could not be

identified or calculated. On that account, benefit of doubt

is given.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
25/27
Crl.A(MD)No.527 of 2018

63.In the result, this criminal appeal is allowed.

The judgment of conviction and sentence passed by the trial

court are set aside. The appellant is acquitted from the

charges levelled against him. The fine amount, if any, paid

by the appellant shall be refunded. Bail bond, if any,

executed shall stand discharged.

                 Index:Yes/No                                                                  24/02/2025
                 Internet:Yes/No
                 er




                 To,

                 1.The Special Judge-cum-
                   Chief Judicial Magistrate,
                   Nagercoil.

                 2.The Inspector of Police,
                   Vigilance and Anti Corruption Wing,
                   Nagercoil,
                   Kanyakumari District.

                 3.The Additional Public Prosecutor,
                   Madurai Bench of Madras High Court,
                   Madurai.




https://www.mhc.tn.gov.in/judis               ( Uploaded on: 05/03/2025 06:35:59 pm )
                 26/27
                                                                            Crl.A(MD)No.527 of 2018


                                                                                 G.ILANGOVAN,J

                                                                                                er




                                                                 Crl.A(MD)No.527 of 2018




                                                                                     24/02/2025




https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 06:35:59 pm )
27/27

[ad_1]

Source link

LEAVE A REPLY

Please enter your comment!
Please enter your name here