Bangalore District Court
Karnataka Lokayutha Ps vs H V Omkarmurthy on 25 January, 2025
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Spl.C.C. No. 1199/2019
KABC010335222019
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE & THE SPECIAL
JUDGE FOR TRYING OFFENCES UNDER THE
PREVENTION OF CORRUPTION ACT,
AT BENGALURU CITY (CCH-78)
DATED THIS THE 25TH DAY OF JANUARY 2025
PRESENT:
Sri.PRAKASH NAYAK, B.A.(LAW), LL.B.
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & LOKAYUKTHA SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No. 1199/2019
COMPLAINANT: State by Karnataka
Lokayuktha Police.
City Division, Bengaluru.
(Rep. by Mrs.Suneetha,
Public Prosecutor)
/VS/
ACCUSED: Mr.H.V.Omkaramurthy,
S/o Late Veerabhadrappa,
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Spl.C.C. No. 1199/2019
Aged about 63 years, Retd.
Development Officer &
Executive Engineer, KIADB,
Bengaluru.
R/at No.4/1, D Block, 4th Floor,
Platinum City Apartment,
Peenya, Bengaluru.
Bengaluru City.
(Rep by Sri.P.N.Hegde.,
Advocate )
TABULATION OF EVENTS
01. Date of commission of offence : 26-09-2013
02. Date of report of offences to
the Police Station (FIR date) : 25-09-2013
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : Lokayuktha
Police.
06. Nature of offence complained : U/S.Sec.13(1)
(e) R/w Sec. 13
13(2) of Prevention
of Corruption Act
1988.
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07. Date of submission of
charge sheet : 04-10-2019
08. Date of commencement of
recording of evidence : 18-01-2023
09. Date of closing of evidence : 17-12-2024
10. Date of judgment : 25-01-2025
11. Opinion of the Judge in : Accused is
respect of the offences. acquitted.
*****
JUDGMENT
1. The Police Inspector, Karnataka Lokayuktha,
City Division, Bengaluru has filed the charge
sheet against the accused for the offence
punishable under Secs. 13(1)(e) r/w Sec.13(2)
of the Prevention of Corruption Act, 1988.
2. The factual matrix of the case on hand is that
the accused was working as a District
Development Officer and Executive Engineer,
KIADB, at Hassan and he had joined the
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service in the Karnataka Industrial Area
Development Board on 16-12-1981 as a Junior
Engineer and on getting promotions at various
levels had become District Development Officer
of Hassan on 26-09-2013.
3. After registration of the case on the strength of
source information report, the concerned Police
Inspector of Karnataka Lokayukta conducted
search in the house of the accused and seized
documents. Further, according to the
prosecution, the investigation revealed that
during the check period commencing from 16-
12-1981 to 26-09-2013, the accused has
amassed assets worth Rs.24, 42,810-74 i.e.
11.86% disproportionate to his known source
of income. In the charge sheet it is also alleged
that during the check period, accused and his
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family members were possessing assets worth
Rs.1,35,59, 959.58 and during the check
period, the family expenses of accused and his
family members is Rs.94,68,564.76 and the
income of the accused from known source is
Rs.2,05,85,713.56, which means the accused
was possessing asset worth Rs .24,42,810.74
i.e. 11.86% disproportionate to his known
source of income. It is also the case of the
prosecution that since the accused has failed
to satisfactorily explain for the disproportionate
assets possessed by him, he has committed
criminal misconduct, which is punishable
under Sec.13(1)(e) r/w Sec.13(2) of Prevention
of Corruption Act, 1988.
4. After taking cognizance of the offence, the
presence of the accused was secured by
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issuing summons and the accused put his
appearance before the Court through his
counsel and he was enlarged on bail.
Subsequently, as contemplated under Sec.207
of Cr.P.C., copy of the charge sheet and its
enclosures were furnished to the accused.
Thereafter, upon hearing both sides, the charge
was framed under Sec.13(1)(e) r/w Sec.13(2) of
P.C. Act and read over to the accused, who
pleaded not guilty and claims to be tried.
5. In order to bring home the guilt of the accused,
the prosecution has examined Pws.1 to 11 and
produced and got marked Ex.P.1 to Ex.P.424.
Ex.P.424 is marked with consent of the learned
counsel for the accused. In view of filing of
application under Sec.294 of Cr.P.C. by the
accused and since the said application was
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allowed, the prosecution has given up CW.5 to
CW.8, CW.10 to 14, CW.16 to 24, CW.26 to 29,
CW.31 to 52, CW.56 to 64 and CW.68.
6. The prosecution evidence in gist is described as
under:
Prosecution Charge Person examined Evidence Exhibits
witness No. Sheet regarding marked
witnes
s No.PW.1 CW.1 Preparation of Ex.P.1 and E
Sri.N.G.Shivashanka Source Report x.P.1(a)
r as per Ex.P.1 Original source
report
PW.2 CW.2 Dr.N.Shivashankar Sanction order Ex.P.2 & P.3
Sanction order
& proceedings
of the KIADB
PW.3 CW.4 Sri.B.S.Nagaraja Witness to Ex.P.4 search
seizure warrant, Ex.P.5
mahazar of Seizure
house and Mahazar,
office of the Ex.P.6
accused and Panchanama.
search warrant Ex.P.4(a),
Ex.P.5(a), &
Ex.P.6(a)Signat
ure of the
witnesses.
P.7 to P.314
PW.4 CW.25 R.Manjunath Preparation of Ex.P.315
the valuation of Valuation
property of Report.
AGO Ex.P.315(a)
Signature of
the witness
PW.5 CW.67 T.R.Vedamurthy Preparation of Ex.P.316,
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Report P.316(a), P.317,
regarding P.317(a).
Horticultural
income from
the landed
properties at
Tharikere as
Per Ex.P.316 &
317
PW.6 CW.66 Sri.T.N.Chitrasena Preparation of Ex.P.318 &
the report P.319
regarding the
agriculatural
income from
the landed
properties at
Tharikere as
per Ex.P.318
and P.319
PW.7 CW.69 Sri.Puttaswamy H.P. Regarding Ex.P.1(b),
registration of Ex.P.320, 321,
FIR and 321(a), 322 &
conducting the 322(a) to (c) &
search at the 323, 324,
residence of the Ex.P.5(b),
accused and Ex.P.6(b),
about P.326, 327,
conducting the 328, 329, 330,
investigation 331, 332 & 326
till 17-04-2014 to 365
PW.8 CW.54 Sri.S.V.Surya Submission of Ex.P.366
Prakash report with
reference to per
capita monthly
expenditure of
the accused and
his family
members
during the
check period as
per Ex.P.366
PW.9 CW.70 Sri. Srinivasa M.S. Evidence Ex.P.367 to
regarding Ex.P.414,
conducting Ex.P.367(a) to
part of the Ex.P.370(a)
investigation
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PW.10 CW.71 Sri. D. Shivaji Rao Evidence Ex.P.415, 416,
regarding 417, 423 and
assessing the 415(a)
value of asset,
expenditure
and income of
the accused
during the
check period
on the basis of
materials
secured during
the
investigation
and also
regarding
preparation of
the final report
PW.11 Summ Sri. Rajesh Kotyan Evidence Ex.P.418 to
oned regarding p.422, 418(a),
witnes conducting the 419(a), 420(a),
s further 421(a) and
investigation as P.422(a)
per the
directions of
the Hon’ble
High Court of
Karnataka in
Crl.Pt.No.6253
/2020 dtd.01-
02-2021
7. After closure of the prosecution evidence, the
statement of accused under Sec.313 of Cr.P.C.
was recorded. The accused has denied the
incriminating evidence as appears against him
and he has chosen to adduce defence evidence
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and the accused himself examined as DW.1
and through him Ex.D.1 Letter dtd.12-08-2022
issued by Margadharshi Chits (Karnataka)
Pvt.Ltd., Hassan Branch and Ex.D2 copy of
ledger extract were got exhibited.
8. Heard both sides. On behalf of the accused,
the learned Counsel for the accused also filed
written arguments.
9. After analyzing the available oral and
documentary evidence on record and after
hearing the arguments on both sides, the
points that would arise for determination are:
1. Whether the prosecution proves that
the sanction accorded under Sec.19(1)(c)
of the P.C. Act, 1988 as per Ex.P.2 to
prosecute accused is valid?
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2. Whether the prosecution beyond
reasonable doubt proves that the
accused being the public servant during
the check period from 16-12-1981 to
26-09-2013 was found in possession of
property worth Rs.24,42,810.74
(11.86%) disproportionate to his known
source of income, for which he could not
satisfactorily account and thereby, he
has committed an offence defined under
Sec.13(1)(e) punishable under Sec.13(2)
of P.C.Act, 1988?
3. If so, What order?
10. My answers to above points are as under:
POINT NO.1:- In the affirmative.
POINT NO.2:- In the negative.
POINT NO.3:- As per the final order
for the following:
REASONS
11. POINT NO.1:- It is an admitted fact that
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accused was the public servant and at the
relevant point of time, he was working as
District Development Officer and Executive
Engineer, KIADB, Hassan. Hence,
undoubtedly, the accused was the public
servant as defined under Sec.2(c) of P.C.Act,
1988. Admittedly, the accused joined to the
service in KIADB on 16-12-1981 and the raid
was conducted on 26-09-2013 and this Court
has taken cognizance on 21-10-2019 and the
accused was retired on 31-07-2018.
12. Admittedly, it is for the prosecution to
show that it has obtained valid sanction as
required under Sec.19 of the P.C.Act, 1988, so
as to prosecute the accused for the alleged
offence. Similarly, it is also incumbent on the
prosecution to prove that the valid sanction
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has been granted by the sanctioning authority
after having satisfied as to the case of the
prosecution as to the commission of the
offence. This process can be established by the
prosecution by producing the original sanction
order, which contains facts constituting the
offence and grounds of satisfaction and also by
adducing the evidence of the author of the
sanction order.
13. In the case of State of Maharashtra
through C.B.I. Vs. Mahesh G.Jain, reported in
(2013)8 SCC 119, the Hon’ble Apex Court has
held that “an order of sanction should not be
construed in a pedantic manner and there
should not be a hyper technical approach to
test its validity. When there is an order of
sanction by the competent authority indicating
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the application of mind, the same should not
be lightly dealt with. The flimsy technicalities
cannot be allowed to become tools in the hands
of the accused.
14. In 2014 (4) SCC 295 (C.B.I. vs. Ashok
Kumar Agarwal), the Hon’ble Apex Court has
held that “the prosecution has to satisfy the
Court that at the time of sending the matter for
grant of sanction by the competent authority,
adequate material for such grant was made
available to the said authority. This may be
evident from the sanction order, in case, it is
not extremely comprehensive as well as facts
and circumstances of the case may be spelt out
in the sanction order. However, in every
individual case, the Court has to find out
whether there has been an application of mind
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on the part of the sanctioning authority
concerned on the material placed before it.
15. The Hon’ble Apex Court in the case of
C.S.Krishnamurthy Vs. State of Karnataka
held that “therefore, the ratio is sanction order
should speak for itself and in case, facts do not
so appear, it should be proved by leading
evidence that all the particulars were placed
before the sanctioning authority for due
application of mind. In case, the sanction
speaks for itself, then, the satisfaction of the
sanctioning authority is apparent by reading the
order”. The Hon’ble Apex Court has further
observed that “it is no doubt true that the
sanction is necessary for every prosecution of
the public servant, this safeguard is against the
frivolous prosecution against the public servant
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from harassment. But, the sanction should not
be taken as a shield to protect corrupt and
dishonest public servant”.
16. In the light of the above principles, the
Court has to examine the evidence adduced by
the prosecution in this regard. The materials
on record reveals that in order to prove the
factum of valid sanction, the prosecution has
relied upon the evidence of PW.2 (CW,2)
Dr.N.Shivashankar and Ex.P.2 the sanction
order dtd.02-07-2019.
17. Said PW.2 Dr.N.Shivashankar in his
examination in chief has deposed that on 08-
05-2018, his office has received a requisition
from the ADGP, KLA, dtd.24-04-2018 with
enclosures including copies of FIR, source
report, search cum seizure mahazar, final
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report, etc. The said letter contained a request
seeking to accord sanction to prosecute the
accused in this case by initiating proceedings
in respect of the alleged disproportionate asset
case. PW.2 has also deposed that he has
verified the entire records and KIADB Board is
the disciplinary committee which is vested with
the power of appointing and removal of officer
of Executive Engineer/Development Engineer
cadre. He has also stated that he was the
Executive Member in that committee and he
has placed the entire facts contained in the
said requisition letter before the said board for
taking suitable decision and to pass necessary
resolution. He has further deposed that the
Board Meeting was held on 10-05-2019 and
decision was taken to accord permission to the
Karnataka Lokayukta to initiate proceedings
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against the accused, since there exists prima-
facie case on record. Through this witness,
Ex.P.2 sanction order was got exhibited and he
has identified his signature, which is marked
as Ex.P.2(a) and through him, the proceedings
of KIADB Board is marked as Ex.P.3.
18. In his cross-examination made by the
Learned Counsel for the accused, PW.2 has
deposed that they sought better particulars
from ADGP, KLA since the letter written by
ADGP not contained the documents which
throws light as to the assets and expenditure of
the AGO and his family members. He has
admitted in his cross-examination that Ex.p.3
is silent regarding the documents verified by
the said Board and also admitted that Ex.P.3
does not contain any specific covenant to the
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effect that the committee has perused all the
documents sent by ADGP, KLA. He has also
admitted that Ex.P.2 is silent regarding the
details of the documents sent by ADGP, KLA
along with said letter. PW.2 has also admitted
that Ex.P.2 does not reveal in detail about the
factors which made the Board or himself to
come to the conclusion that there was a prima-
facie case suggesting that accused has
committed an offence. He has denied that
KIADB board has mechanically accepted the
request of the ADGP and without applying
mind, Ex.P.3 resolution was passed and he
further denied that he has blindly followed it
and issued Ex.P.2.
19. During the course of arguments, the
Learned Public Prosecutor has submitted that
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the oral and documentary evidence on record
discloses that the competent authority has
accorded the sanction as per rules and the
Ex.P.2 sanction is valid one. The materials on
record reveals that the accused in this case
has not much disputed about Ex.P.2 sanction
order. The evidence of PW.2 on record clearly
reveals that the concerned Board of KIADB,
verified the records submitted and applied its
mind and came to the conclusion that there
exists a prima-facie case against the accused
and only thereafter, Ex.P.2 sanction order was
issued. On conjoint reading of the evidence of
PW.2 and contents of Ex.P.2 sanction order,
there remains no doubt that KIADB board
being the sanctioning authority had considered
the relevant materials and after having
satisfied as to existence of prima-facie case to
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prosecute the accused has issued sanction
order. These materials undoubtedly ex-facie
demonstrate as to application of mind by the
sanctioning authority on the relevant
documents and granting of sanction.
20. Hence, under these attending
circumstances, the contention of the accused
that Ex.P.2 sanction order was issued without
considering the documents cannot be accepted.
The Court is of the opinion that the sanction
granted by the sanctioning authority is valid
and is in accordance with law. Therefore, the
Court after considering all these aspects is of
the opinion that the prosecution has proved
that the valid sanction is accorded to prosecute
the accused with regard to the offence charged
against him. Accordingly, the Court proceed to
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answer Point No.1 in the affirmative.
21. POINT NO.2:- Before considering the
respective contentions and the facts pertaining
to this issue, the Court opines that it is just
and necessary to state in brief about some of
the undisputed facts, which is evident from the
materials placed before the Court.
22. It is an undisputed fact that initially the IO
PW.10 Sri.D.Shivaji Rao has filed charge sheet
against the accused wherein it is alleged that
the following are the assets, expenditure and
income of the accused and his family members
during the check period.
Assets Rs.1,35,59,959-58 Expenditure Rs. 94,68,564-76
Assets + Expenditure = Rs.2,30,28,524-30
Income Rs.1,85,45,713-56
DA Rs. 44,82,810-78
Percentage 24.17 %
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23. The materials on record also reveals that
the accused has approached the Hon’ble High
Court of Karnataka, Bengaluru by filing
Crl.Petition No.6253/2020, seeking to quash
the entire proceedings and the Hon’ble High
Court of Karnataka, Bengaluru has disposed
off the said petition by making an observation
that the pass book and the documents
submitted by the accused/petitioner for having
availed the loan of Rs.20,40,000/- was not
considered by the investigating Officer while
filing the charge sheet and hence, direction
was issued to the concerned Investigating
Officer to place the letter dtd.13-05-2019 and
its annexure and the same should be part of
the proceedings before the Trial Court and also
make the stand of the Investigating Officer with
regard to the disproportionate asset of the
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accused/petitioner.
24. Subsequently, as per the directions of the
Hon’ble High Court of Karnataka, Bengaluru,
the PW.11 Sri.Rajesh Kotyan conducted further
investigation and submitted additional charge
sheet by recalculating the value of assets,
expenditure and income of the accused during
the check period.
Assets Rs.1,35,59,959-58
Expenditure Rs. 94,68,564-76
Assets + Expenditure = Rs.2,30,28,524-30
Income Rs.2,05,85,713-56
DA Rs. 24,42,810-74
Percentage 11.86 %
25. The materials on record also reveals that
the accused has further filed criminal Petition
No.7442/2022 before the Hon’ble High Court
of Karnataka, Bengaluru challenging the order
passed by this Court dtd.19-07-2022 and
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seeking discharge of the accused and the said
Criminal petition is dismissed by the Hon’ble
High Court of Karnataka, Bengaluru on 28-07-
2023.
26. WITH REGARD TO COMPLIANCE OF
SEC.17 OF PREVENTION OF CORRUPTION
ACT, 1988.
The Sec.17 of P.C.Act, 1988 contemplates
about the persons authorized to investigate.
The proviso appended to Sec.17 of the P.C.Act,
1988 envisages that an offence referred to in
Clause(e) of Sub-Section 1 of Sec.13 shall not
be investigated without the order of a Police
Officer not below the rank of a Superintendent
of Police. Hence, there is a statutory
requirement regarding authorization by the
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Superintendent of Police in favour of an Officer
to enable him to carry out the investigation in
terms of Sec.17 of the P.C.Act, 1988.
27. The prosecution has placed on record
Ex.P.320, Ex.P.367, Ex.P.415, Ex.P.422 and
Ex.P.424, which reveals that as per Ex.P.320
the S.P., KLA, City Division II, Bengaluru has
authorized PW.7 Sri.Puttaswamy H.P. to
register the FIR and to undertake investigation.
Further, Ex.P.367 reveals that the S.P., KLA,
City Division II, Bengaluru has authorized
PW.9 Sri.Srinivas M.S. to conduct further
investigation in this case. Further, Ex.P.415
reveals that the S.P., KLA, City Division II,
Bengaluru has authorized PW.10 Sri.D.Shivaji
Rao to conduct further investigation in this
case. Further, Ex.P.422 reveals that the
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concerned ADGP has authorized PW.11
Sri.Rajesh Kotyan to file additional charge
sheet and Ex.P.424 reveals that CW.72
Smt.S.Radha was authorized by concerned
ADGP, KLA, Bengaluru to submit charge sheet
against the accused.
28. The above said oral and documentary
evidence on record clearly reveals that there is
due compliance of Sec.17 of the P.C.Act, 1988.
29. With regard to registration of FIR and
seizure mahazar, search warrant and source
report, the evidence of PW.1 to 7 and PW.9 is
relevant. PW.1 Sri.N.G.Shivashankar, who is
the Police Inspector, who deposed about
preparation of Ex.P.1 source report in detail. In
the cross-examination of PW.1 nothing
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favourable to the case of the accused is
elicited. PW.1 has admitted that while
forwarding Ex.P.1 to the S.P., he has not
enclosed any documents along with the report.
30. PW.2 Dr.N.Shiva Shankar who was the
then Chief Executive Officer of KIADB deposed
about issuance of prosecution sanction order
as per Ex.P.2 and also deposed about Ex.P.3
the proceedings of KIADB Board. In the cross-
examination of PW.2 also, nothing contrary to
the case of the prosecution regarding the
aspect of sanction is elicited.
31. PW.3 Sri.B.S.Nagaraju is a witness to
panchanama, who has spoken about
preparation of Ex.P.5 Search Mahazar and also
deposed about Ex.P.6 Panchanama, which was
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drawn at office of the AGO and he has also
identified his signature in Ex.P.4 search
warrant. Through this witness the prosecution
has got exhibited Ex.P.7 to P.314,
32. The prosecution has also examined CW.25
R.Manjunath as PW.4, who is the
Asst.Executive Engineer attached to PWD and
he has deposed about preparation of Ex.P.315
the Valuation Report pertaining to the building
situated at Hassan, which belonged to the wife
of AGO. Further, the prosecution has examined
PW.5 Sri.T.R.Vedamurthy, who is the Deputy
Director of Horticulture, who has deposed
about preparation of Ex.P.316 and P.317 the
reports regarding the Horticultural income
derived from the landed properties of AGO at
Tharikere.
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33. Further, the prosecution has examined
CW.66 T.N.Chitrasena as PW.6, who was the
Asst.Director of Agriculture who has deposed
about preparation of the Report regarding the
agricultural income derived from the landed
properties of AGO situated at Tharikere as per
Ex.P.318 and Ex.P.319.
34. With regard to registration of FIR, the
evidence of PW.7 Sri.Puttaswamy H.P. reveals
that after receipt of Ex.P.320 letter of
authorization, he has registered FIR as per
Ex.P.321 and he has also deposed about the
part of investigation conducted by him and he
has deposed about Ex.P.4, Ex.P.323 and P.324
search warrants and Ex.P.5 panchanama.
35. The prosecution has also examined
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CW.54 Sri.S.V.Surya Prakash, as PW.8, who
deposed about submission of report regarding
per capita monthly expenditure of the accused
and his family members during the check
period as per Ex.P.366. As mentioned above,
PW.9 Sri.Srinivas M.S., PW.10 Sri.D.Shivaji
Rao, PW.11 Sri.Rajesh Kotyan, are the
Investigating Officers, who deposed about
conducting part of the investigation and about
submission of final report and additional
charge sheet respectively.
36. WITH REGARD TO ASSETS OF THE
ACCUSED:
The I.O. in his final report in the column of
list of assets of AGO and his family members
has mentioned item No.1 to 22, which were
stated to be acquired by AGO and his family
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the AGO in this case has not disputed the
following item Nos.1 to 7, 10 to 20 and 22,
which are as follows:
Item Nos. Description of assets Value in
Rs.
Item No.1. Flat No.D/04/10, 4th Rs.2,96,750/-
Floor, Platinum City
Apartment HMT Factory
Road, Peenya, which
stands in the name of
wife of accused
Smt.D.S.Ambika
Item No.2 Site No.213 situated Rs.3,23,025/-
at Hebbal Mysore,
KIADB employees
residential Extension
purchased in the name of
accused.
Item No.3 Site No.B4, Khatha Rs.12,72,000/-
No.1606 situated at
Chikkasnadra Village,
Yeshwanthpura Hobli,
Bengaluru North Taluk
measuring 2400 Sq.Ft.
Item No.4 Site No.144, Situated in Rs.6,88,000/-
Sy.No.71/1, measuring
3,200 sq.ft., situated at
Mallara Banawadi,
Kasaba Hobli,
Bengaluru Rural
District, which stands in
the name of accused
Item No.5 Immovable property Rs.12,500/-
measuring 2¼ guntas in
Sy.No.101P situated at
Galihalli Village of
Tarikere Taluk,
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purcahsed by AGO in
the name of his wife
Smt.Ambika.
Item No.6 Immovable property Rs.1,70,500/-
measuring 7.01 acres in
Sy.No.65 situated at
Hosahalli Village,
Lingadahalli Hobli,
Tarikere Taluk,
purchased by AGO in
his name
Item No.7 Site No.242, measuring Rs.3,29,400/-
2440 Sq.Ft.in
Sy.No.115 situated at
Laggeri Village,
Yeshwanthapura Hobli,
Bengaluru North Taluk,
purchased by AGO in
his name.
Item No.10 Site No.25 and 27 Rs.2,00,000/-
situated at Ward No.34,
Vinobha Nagar,
Shimogga, purchased
by AGO in his name
Item No.11 Site No.25, 26, & 27 Rs.8,000/-
measuring total 2660
sq.ft. situated at Ward
No.34, Vinobha Nagar,
Shimogga, purchased
by AGO in the name of
his wife
Smt.D.S.Ambika
Item No.12 S.B.A/c No.SB/01/8441 Rs .5,69,017.64
at Corporation Bank,
Nrupathunga Road,
Bengaluru in the name
of AGO
Item No. 13 S.B.A/c Rs.11,72,402,31
No.CLSB/01/110017 at
Corporation Bank,
Nrupathunga Road,
Bengaluru in the name
of Accused
Item No.14 S.B.A/c Rs.8,75,687,38
34
Spl.C.C. No. 1199/2019
No.SB/01/000697 at
Corporation Bank,
K.R.Puram Branch,
Hassan in the name of
wife of the accused
Smt.D.S.Ambika
Item No.15 S.B.A/c Rs.14,15,983/-
No.CLSB/01/110008 at
Corporation Bank,
K.R.Puram Branch,
Hassan in the name of
wife of the accused
Smt.D.S.Ambika
Item No.16 S.B.A/c Rs.34,69,991/-
No.846010100008226
at Bank of India, Main
Branch, Hassan in the
name of accused
Item No.17 Tata Indica Car bearing Rs.3,65,000/-
Registration No.KA 13
N 5666 which stands in
the name of accused
Item No.18 Cash found at the time Rs.1,19,400/-
of raid of house of the
accused
Item No.19 Total value of Golden Rs. 00
ornaments found on the
date of raid of house of
the accused
Item No.20 Total Value of Silver Rs.00
ornaments found on the
date of raid of house of
the accused
37. In respect of above said admitted assets,
the prosecution has produced Ex.P.344, 395,
345 to 348, 350, 372, 374 and 375. In respect
of above mentioned asset at Sl.No.1, though
35
Spl.C.C. No. 1199/2019the learned Counsel for the accused has cross-
examined PW.10 Sri. Shivaji Rao, the IO,
during the course of arguments it is submitted
by the Learned counsel for the accused that in
the written arguments filed on behalf of the
accused, he has not disputed the said item
No.1 in the asset column as shown by the IO in
his final report, for the reason that the accused
has taken a specific defence in respect of the
said property in the context of left out income.
Since the above said item No.1 to 7 and 10 to
20 were admitted by AGO, the Court is of the
opinion that there is no necessity to appreciate
and analyze the oral and documentary
evidence in detail regarding the above said
admitted assets.
38. As mentioned above, the accused in this
36
Spl.C.C. No. 1199/2019
case has disputed item No.8, 9 and 21 assets
as mentioned in the final report. The said
contention of the accused with regard to said
disputed assets has to be considered with
reference to the oral and documents on record.
39. IN RESPECT OF ASSET NO.8
In the final report, the IO has mentioned
asset No.8 as Plot No.29A, situated at
B.Kateehalli, Industrial Area, Hassan,
purchased by wife of accused Smt.D.S.Ambika,
purchased in the name of Hemavathi Gas
Agencies in which she is a partner and the IO
has shown the value of said property as
Rs.94,251/- and the IO has considered
Rs.94,251/- as asset of the AGO.
40. During the course of arguments, on behalf
37
Spl.C.C. No. 1199/2019
of the prosecution, it is submitted that the
value of assets in respect of item No.8 as
mentioned by IO in the final report is proper
and correct and same may be considered.
However, it is argued on behalf of the accused
that said Hemavathi Gas Agencies is a
Partnership Firm consisting Smt.D.S.Ambika
and Smt.Yashoda as partners and the sale
deed is executed on 31-05-2006 in the name of
Hemavathi Gas Agencies represented by
Smt.D.S.Ambika as a partner and therefore, at
the most 50% of the total sale consideration of
Rs.94,251/- i.e. Rs.47,126/- has to be taken
as asset of the wife of the accused and the
remaining amount has to be deducted from the
asset. It is also brought to the notice of the
Court that the IO himself has taken 50% of the
Income Tax paid by Hemavathi Gas Agencies
38
Spl.C.C. No. 1199/2019
as expenditure of the accused under Sl.No.46
of the Expenditure, but while considering this
Sl.No.8 of the asset has failed to consider 50%
of the value of the sale consideration as asset.
41. In respect of this asset No.8, the
prosecution has got examined CW.71
Sri.D.Shivaji Rao as PW.10, who in his
examination-in-chief has deposed that the wife
of the accused Smt.D.S.Ambika who is a
partner of Hemavathi Gas Agencies has
purchased the said Plot No.29A for
Rs.94,251/- under the registered Sale Deed
dtd.31-05-2006. In his cross-examination
made by the Learned Counsel for the accused,
at para No.134, said PW.10 has admitted that
Hemavathi Gas Agencies is a Partnership Firm
and along with Smt.D.S.Ambika, Smt.Yashoda
39
Spl.C.C. No. 1199/2019
is also one of the partner. PW.10 has also
deposed that he has collected the Ex.P.423, the
Partnership Deed pertaining to Hemavathi Gas
Agencies.
42. PW.10 has further admitted in his cross-
examination that when the Lokayukta Police
conducted raid to the house of the accused,
they have seized said Ex.P.423 Partnership
Deed and he has further admitted that he has
not conducted any investigation regarding the
percentage of the investment made by each
partner in the said partnership firm. He has
admitted that since wife of the accused is one
of the partner, he ought to have taken 50% of
the sale consideration as asset of wife of
accused.
40
Spl.C.C. No. 1199/2019
43. On careful perusal of the records, it
reveals that Ex.P.423, the Partnership Deed
clearly reveals that the said Hemavathi Gas
Agencies is a Partnership Firm consisting
Smt.D.S.Ambika and Smt.Yashoda as partners
and the said Ex.P.352 sale deed is executed on
31-05-2006 in the name of Hemavathi Gas
Agencies represented by Smt.D.S.Ambika and
in the said sale deed, Smt.D.S.Ambika signed
as a Managing Partner. Though in the said
Ex.P.352 Sale Deed, reference is made as
Proprietor, considering the recitals of the said
Sale Deed and Ex.P.423 Partnership Deed, it
clearly reveals that said Smt.D.S.Ambika is one
of the partner of said Hemavathi Gas Agencies
and therefore, as rightly pointed out by the
Learned Counsel for the accused, 50% of the
total sale consideration as mentioned in
41
Spl.C.C. No. 1199/2019
Ex.P.352 i.e. 50% of Rs.94,251/- i.e.
Rs.47,126/- only has to be taken as assets of
the wife of the accused with respect to above
said Sl.No.8 of the Asset and Rs.47,126/- has
to be deducted from the total value of the asset
as assessed by the IO.
44. IN RESPECT OF ASSET NO.9.
In the final report at Sl.No.9 of the assets,
the IO has mentioned the construction cost of
sheds at Plot No.29A of K.Katihalli by
Hemavathi Gas Agencies is Rs.10,23,247.25.
The accused has disputed the valuation made
by the IO in respect of this item No.9. It is the
specific contention of the accused that even
though PW.4 Sri.R.Manjunath in his Ex.P.315
report has assessed the total value of the
building as Rs.8,16,757/-, the IO has wrongly
42
Spl.C.C. No. 1199/2019
assessed the value of the said item No.9 as
Rs.10,23,247.25.
45. It is the specific case of the prosecution
that Smt.D.S.Ambika who is the wife of the
accused in the capacity of one of the partner of
Hemavathi Gas Agencies has got constructed
industrial sheds at Plot No.29A of Katihalli and
the prosecution through PW.4 Sri.R.Manjunath
got assessed the value of the said sheds as per
Ex.P.315 and on the basis of the said report,
the IO has assessed the value of this asset
No.9. Said PW.4 Sri.R.Manjunath in his
examination-in-chief has deposed that he has
visited the said property along with one
Asst.Engineer and measured the property and
prepared report as per Ex.P.315. He has also
deposed that he has calculated the value of the
43
Spl.C.C. No. 1199/2019
said building by considering the appropriate
value of raw materials and construction
materials used and he has given depreciation
of Rs.2,06,490/- considering the nature, age
and year of construction of the building. In his
cross-examination made by learned Counsel
for the accused, he has admitted that in
Ex.P.315 report he has mentioned that total
depreciation given is Rs.2,06,490/-.
46. Further, PW.10 Sri.D.Shivaji Rao, in his
examination-in-chief has stated that in respect
of this item No.9 as mentioned in the asset
column, he has assessed the value of the said
sheds as Rs.10,23,247.25. However, in his
cross-examination made by the Learned
Counsel for the accused he has admitted that
in Ex.P.315 the valuation report submitted by
44
Spl.C.C. No. 1199/2019
the concerned Asst.Executive Engineer, it is
clearly stated that the said building appears to
have been constructed about 10 years ago and
the said expert has assessed the value of the
said sheds as Rs.10,23,247.25 and the expert
has given the depreciation of Rs.2,06,490.38
and hence, the value of the said sheds is
arrived at Rs.8,16,757/-. PW.10 has clearly
admitted that while mentioning the value of the
said sheds in the final report he has committed
mistake. Further, PW.10 has also admitted
that since Smt.D.S.Ambika, the wife of the
accused is one of the partners of Hemavathi
Gas Agencies, he ought to have taken 50% of
Rs.8,16,757/- as her asset pertaining to this
item No.9.
47. During the course of arguments, the
45
Spl.C.C. No. 1199/2019
Learned Public Prosecutor has submitted that
the IO in his final report has properly assessed
the valuation of this asset No.9 on the basis of
Ex.P.315, the Valuation Report and hence, the
same may be considered. On careful perusal of
the evidence of PW.4 Sri.R.Manjunath and
PW.10 Sri.D.Shivaji Rao, the IO and Ex.P.315
the report submitted by PW.4, it clearly reveals
that the IO in the Final Report committed a
mistake in taking the value of the sheds
without deducting the depreciation as
mentioned in Ex.P.315 Report and therefore,
the value of the sheds has to be taken as
Rs.8,16,757/- instead of Rs.10,23,247.25.
Even PW.9 Sri.M.S.Srinivas, who has
conducted part of the investigation, in his
cross-examination has clearly admitted about
the recitals of Ex.P.315 and also he has
46
Spl.C.C. No. 1199/2019
admitted that Smt.D.S.Ambika is one of the
partners of Hemavathi Gas Agencies.
48. As mentioned above, on the basis of
Ex.P.423, Partnership Deed, it is an admitted
fact that Smt.D.S.Ambika, the wife of the
accused is one of the partners of the said
Hemavathi Gas Agencies and hence, as rightly
pointed out by the Learned Counsel for the
accused 50% of Rs.8,16,757/- i.e.
Rs.4,08,378/- is only to be considered as value
of the said sheds in respect of item No.9 in the
asset column and Rs.4,08,378/- has to be
deducted from the valuation made by the IO in
respect of the assets of the accused.
49. IN RESPECT OF ASSET NO.21
The I.O. in his final report at Sl.No.21 of
47
Spl.C.C. No. 1199/2019
the assets mentioned value of the house hold
articles found on the date of raid conducted to
the house of the accused is Rs.11,53,855/-. It
is the case of the prosecution that on the day
of conducting raid to the house of the accused,
the accused and his family members were
found in possession of household articles as in
detail mentioned in Ex.P.5 panchanama and its
value is Rs.11,53,855/-. However, the accused
is disputing the said valuation made by the IO
in respect of said household articles. It is the
contention of the accused that IO is always
interested in success of his investigation and in
such effort, he tend to inflate the value of the
household articles and the household articles
were not acquired immediately prior to the
search and same are acquired over a period of
time and as such, the value fixed by the IO is
48
Spl.C.C. No. 1199/2019
always not correct. On the other hand, on
behalf of the prosecution it is argued that when
the accused is contending that the value of
house hold articles is Rs.7,01,098/- as per his
schedule, it is burden upon the accused to
substantiate the same by adducing required
evidence and since the accused has failed to
substantiate it, the assessment made by the IO
in the final report needs to be accepted.
50. In addition to it, the Learned Counsel for
the accused has also argued that Ex.P.5
Mahazar reveals that at Sl.No.182 and 183 of
mahazar, the clothes belonging to one Mr.Ajay
were noticed in the room occupied by him in
the house of the accused and the same is
valued at Rs.22,000/-. The Learned Counsel
for the accused has submitted that PW.7
49
Spl.C.C. No. 1199/2019
Sri.H.V.Puttaswamy in his cross-examination
has clearly admitted that during his
investigation he came to know that the accused
is issue less and on 26-09-2013, when the raid
conducted to the house of the accused, one
Mr.Ajay, who is the son of sister of
Smt.D.S.Ambika was present and in his
investigation he came to know that said
Mr.Ajay has continued his education by staying
in the house of the accused. PW.7 has also
admitted that he has assessed the value of the
said clothes as mentioned in Sl.No.182 and
183 in Ex.P.5 panchanama is at Rs.22,000/-
and hence, the said amount of Rs.22,000/-
has to be deducted from the valuation of
household articles as assessed by the IO.
Further, the Learned Counsel for the accused
has also submitted that PW.10 Sri.D.Shivaji
50
Spl.C.C. No. 1199/2019
Rao in his cross-examination has admitted
that Ex.P.5 panchanama is silent in respect of
the attempts made by the IO to secure the
accurate value of the electrical and electronic
items from the concerned company and Ex.P.5
is silent regarding the date on which said
household articles were purchased by the
accused and his family members and Ex.P.5 is
also silent whether the valuation arrived at on
such articles is pertaining to the date of
purchase of articles or as on the date of raid.
He has also admitted that no expert was
accompanied the IO while assessing the value
of the household articles.
51. PW.10 has also admitted that in respect of
said household articles, the accused has
submitted annexure 14A along with list of
51
Spl.C.C. No. 1199/2019
articles and its value and he has mentioned the
total value of said household articles is
Rs.7,01,098/-. PW.10 has denied that without
conducting proper investigation he has
mechanically mentioned the value of
household articles as mentioned in Ex.P.5
panchanama.
52. On careful perusal of the evidence of PW.7,
Sri.H.P.Puttaswamy and PW.10 Sri.Shivaji Rao
and taking into consideration Ex.P.5
panchanama, it clearly reveals that the raid is
conducted to the house of the accused on 26-
09-2013 and admittedly, the IO in the presence
of panch witnesses has prepared Ex.P.5
panchanama, wherein the IO has mentioned
list of household articles from Sl.No.1 to 190
and he has also mentioned the description and
52
Spl.C.C. No. 1199/2019
details of golden and silver ornaments and
seized documents. As mentioned above, the
evidence on record clearly reveals that the
accused is issue less and on 26-09-2013 when
the raid is conducted to the house of the
accused, one Mr.Ajay who is the son of sister of
wife of the accused was present and the
clothes mentioned at Sl.No.182 and 183 in
Ex.P.5 panchanama is pertaining to said
Mr.Ajay. Hence, under such circumstance, the
value of said clothes pertaining to Mr.Ajay, i.e.
Rs.22,000/- has to be deducted from the
valuation of household articles as assessed by
the IO in his final report.
53. It is an admitted fact that by filing
annexure 14A, the accused has given details of
household articles and the valuation of said
53
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articles and he has stated that the total value
of said household articles is Rs.7,01,098/-. It
is relevant to note that the accused has not
furnished any documents in support of his
said contention and also not adduced any oral
or documentary evidence as to value of
household articles. However, it is the
contention of the accused that the IO has
inflated the value of household articles. When
the accused contends that the value of
household articles is Rs.7,01,098/-, it is the
burden upon him to prove the same and
admittedly, the accused has failed to
substantiate his said contention. It is
pertinent to note that the accused in his
defence evidence not raised any contention
regarding these aspects.
54
Spl.C.C. No. 1199/2019
54. On careful perusal of the evidence on
record, it reveals that PW.3 Sri.B.S.Nagaraju
has deposed before the Court that in his
presence Ex.P.5 panchanama was conducted
and PW.7 Sri.Puttaswamy and other police
officials in their presence has noted the
household articles silver and golden ornaments
and documents found in the house of the
accused. In his cross-examination made by
the Learned Counsel for the accused PW.3 has
admitted that the IO has not taken the
assistance of the Experts to fix the value of the
electrical and electronic items, clothes and
furniture, etc. PW.3 has denied that while
preparing Ex.P.5, the IO has not taken the
statements of the accused and his family
members.
55
Spl.C.C. No. 1199/2019
55. Further, PW.7 Sri.Puttaswamy H.P. in his
examination-in-chief has deposed that from
6.45 a.m. till 4.00 p.m. he has prepared Ex.P.5
panchanama in the presence of panch
witnesses and one appraiser Sri.Sunil Kumar
has also signed the said panchanama and the
accused has also put his signature to Ex.P.5
and endorsed that he has witnessed the
process and received the copy of the said
panchanama. At para No.10 of his
examination-in-chief, he has clearly stated that
he has enquired the AGO and his family
members in respect of acquisition of household
articles and documents and in respect of one
LED TV, the accused has furnished one Bill
and in respect of remaining 24 consumer
durable items, the accused informed him that
he does not possess any documents and the
56
Spl.C.C. No. 1199/2019
accused told him about the price of consumer
durable items and that was discussed by him
and panchas and later they have determined
the approximate price of consumer durables.
In his cross-examination made by the Learned
Counsel for the accused PW.7 has denied that
in the electrical and electronic items found in
the house of the accused on the date of raid, he
came across the date of production and date of
manufacturing of such equipments. He has
admitted that he has not called upon any
expert to the house of the accused to fix the
value of household articles and he has not
made any attempts to secure the price list from
the concerned company in respect of said
electrical and electronic items. He has denied
that on the said date, without consulting the
accused and his family members, himself and
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Spl.C.C. No. 1199/2019
panch witnesses wrongly fixed the value of the
household articles. He has denied that in
Ex.P.5, he has mentioned the inflated value of
household articles only with an intention to
show the higher value of the assets.
56. During the course of arguments, the
Learned Public Prosecutor has submitted that
the IO has fixed the minimum value of
household articles only after consulting the
accused and his family members and the
punch witnesses and the IO has not inflated
the value of any household articles and in the
absence of evidence to the contrary by the
accused, the valuation made by the IO has to
reconsidered. The evidence on record clearly
reveals that the IO while preparing Ex.P.5
panchanama, prepared the same in the
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Spl.C.C. No. 1199/2019
presence of panch witnesses and the accused
and his family members and he has mentioned
the value of the household articles after
consulting the accused and his family
members and panch witnesses. It is true that
the IO has not secured the documents in
support of the valuation arrived at by him in
respect of said household articles. It is not the
case of the prosecution and also the accused
that said household articles are purchased by
the accused immediately prior to the date of
conducting raid. Therefore, quite obviously it
is impossible to fix the accurate and actual
value of each household articles found in the
house of the accused.
57. However, on careful perusal of Ex.P.5
panchanama and the list of household articles
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and the valuation fixed by the IO in respect of
each household articles, it appears that the IO
has fixed the minimum value of each
household articles approximately and the
Court is of the opinion that the accused has
not made out any grounds to disbelieve the
valuation made by the IO in Ex.P.5. As
mentioned above, even though the accused has
contended that the value of said household
articles according to him is only Rs.7,01,098/-
he has failed to substantiate the same by
adducing required oral and documentary
evidence. Hence, under such circumstance,
the Court opines that the value of said
household articles is to be considered as
Rs.11,31,855/-, instead of Rs.11,53,855/-,
after deducting Rs.22,000/- the value of
clothes of Mr.Ajay. Hence, Rs.22,000/- has to
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Spl.C.C. No. 1199/2019
be deducted from the total value of assets as
assessed by the IO in his final report.
58. As mentioned above, the accused in this
case has disputed the valuation of asset No.8,9
and 21, as made by the IO in his final report
and while discussing the said aspect, this
Court came to the conclusion that in respect of
asset No.8, Rs.47,125/- and in respect of asset
No.9 Rs.6,14,869/- and in respect of item
No.21, Rs.22,000/- has to be deducted from
the total value of assets i.e. Rs.1,35,59,959.58.
Hence, on recalculation of the value of the
assets of the accused and his family members,
the Court came to the conclusion that
Rs.6,83,994.25 has to be deducted from
Rs.1,35,59,959.58 and after deduction of the
same, the total assets of the accused and his
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family members is arrived at
Rs.1,28,75,965.33.
EXPENDITURE
59. The IO in his final report has taken in to
consideration total 71 items as expenditure
and he has made the assessment of the
expenditure at Rs.94,68,564.76. The accused
in this case has admitted the assessment made
by the IO in respect of Sl.No.1 to 7, 9 to 15, 17
to 47, 49 to 71 in the different heads of
expenditure and the accused has disputed
Sl.No.8, 16 and 48 as mentioned in the
expenditure column in the final report. The
following are the admitted expenditure of the
accused as mentioned in the final report.
Sl. Description of the expenditure Value of the
No. expenditure as
assessed by the IO
1. Stamp duty and the registration charges spent Rs.89/-
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Spl.C.C. No. 1199/2019
by wife of the accused while purchasing Flat
No.D/04/10, 4th Floor of Platinum City
Apartment, Peenya.
2. Stamp duty and the registration charges spent Rs. 30,930/-
by the accused while purchasing Site No.213
at KIADB Employees Layout at Mysore
3. Stamp duty and the registration charges spent Rs.1,24,075/-
by the accused while purchasing Site No.B4,
Khatha No.1606 of Chikkasandra Village in
the name of his wife.
4. Stamp duty and the registration charges spent Rs. 75,620/-
by the accused while purchasing Site No.144
of Mallara Banawadi in his name.
5. Stamp duty and the registration charges spent Rs. 1,928/-
by the accused while purchasing 2¼ guntas in
Sy.No.101P of Galihalli Village in the name of
his wife.
6. Stamp duty and the registration charges spent Rs. 26,464/-
by the accused while purchasing 7.01 acres of
land in Hosahalli Village in is name.
7. Stamp duty and the registration charges spent Rs. 31,915/-
by the accused while purchasing
Site No.242 in Sy.No.115 of Laggere Village
9. Stamp duty and the registration charges spent Rs. 71,580/-
by the accused while Site No.25 and 27,
Vinobha Nagar, Shimogga in his name
10. Stamp duty and the registration charges spent Rs. 79,210/-
by the accused while purchasing Site No.25,
26 and 27 of Vinobha Nagar, Shimogga in the
name of his wife.
11. Cost incurred by the wife of the accused in Rs. 75,879/-
respect of improvement of Flat No.D/04/10,
4th Floor, Platinum City, Peenya.
12. Land Revenue paid by the accused in respect Rs. 1,158/-
of Site No.213 of KIADB Employees Layout
at Mysuru.
13. Land Revenue paid by the accused in respect Rs. 00/-
of Site No.144 of Mallara Banawadi.
14. Land Revenue paid by the accused in respect Rs. 4,568/-
of Site No.242 in Sy.No.115 of Laggere
Village.
15. Cost incurred by the accused and his family in Rs. 70,000/-
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respect of the construction of Pooja Room at
Flat No.D/04/10 at 4th Floor of Platinum City,
Peenya.
17. Advance amount paid by wife of the accused Rs.12,50,000/-
towards purchase of Plot No.221 of KIADB,
Tumkur.
18. Electricity consumption charges paid by the Rs. 1,00,561/-
accused and his family in respect of Flat
No.D/04/10, 4th Floor, Platinum City
Apartment, Peenya.
19. Fuel Expenses in respect of Maruthi SX-4, Rs. 2,06,343/-
Car No.KA04 ME 5766
20. Fuel Expenses in respect of Tata Indigo Rs. 15,000/-
bearing Car Registration No.KA13 Z5
21. Fuel Expenses in respect of Tata Indica Car Rs. 18,000/-
bearing Reg.No.KA13 N 5666
22. Fuel Expenses in respect of Two Wheeler Rs. 4,000/-
bearing Reg.No.CAL -3359
23. Maintenance Expenses in respect of Maruthi Rs.1,04,525.76.
SX 4 Car No.KA04 ME 5766
24. Maintenance Expenses in respect of Tata Rs. 6,000/-
Indigo Car bearing Reg.No.KA 13 Z5
25. Maintenance Expenses in respect of Tata Rs.6,000/-
Indica Car bearing Reg.No.KA13 N 5666
26. Maintenance Expenses in respect of Two Rs.1,000/-
Wheeler bearing Reg.No.CAL -3359
27. Insurance and Tax paid in respect of Maruthi Rs.1,61,200/-
SX4 Car No.KA04 ME 5766
28. Insurance and Tax paid in respect of Tata Rs.97,556/-
Indigo Car bearing Reg.No.KA 13 Z5
29. Insurance and Tax paid in respect of Tata Rs.48,963/-
Indica Car bearing Reg.No.KA13 N 5666
30. Purchase value of Tata Indigo Car bearing Rs. 4,97,231/-
Reg.No.KA13 Z5
31. Purchase value of TATA Ace bearing Rs.2,32,516/-
Reg.No.KA 13 9979
32. Purchase value of Maruthi SX Car bearing Rs.7,26,103/-
Reg.No.KA04 ME 5766
33. Telephone Bill paid in respect of Phone Rs.36,276/-
No.08172-265255 stands in the name of wife
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of the accused
34. Repayment of the loan made to Corporation Rs.3,92,690/-
Bank, Nrupathunga Road, Bengaluru by the
accused
35. Repayment of loan made to Bank of India, Rs.2,72,058/-
Hassan Branch by the wife of the accused
36. Service Charge paid to Corporation Bank, Rs.1,744/-
Nrupathunga Road, Bengaluru by the accused
in respect of his SB A/c No.SB/01/8441
37. Service Charge paid to the Bank by the wife Rs.6,409/-
of the accused in respect of SB account
No.SB/01/000697 at Corporation Bank,
K.R.Puram Branch, Hassan
38. Premium paid by the accused in respect of the Rs.5,00,000/-
Insurance Policy bearing No.624518967
39. Premium paid by the accused in respect of the Rs.361/-
Insurance Policy bearing No.631246325
40. Premium paid by the accused in respect of the Rs.75,000/-
Reliance Life Insurance Policy bearing
No.10937763
41. Premium paid by the accused in respect of Rs.4,50,000/-
Bajaj Life Insurance Policy bearing
No.146107310
42. Premium paid by the accused in respect of Rs.2,54,435/-
Bajaj Life Insurance Policy bearing
No.293226576
43. Premium paid by the accused in respect of Rs.4,000/-
Long Term Janatha Personal Accident Policy
bearing No.4767150000532
44. Income Tax paid by the accused Rs.91,514/-
45. Income Tax paid by wife of the accused Rs.11,830/-
46. Income Tax paid by Hemavathi Gas Agencies Rs.46,000/-
47. Per capita monthly expenditure during the Rs.7,78,065/-
check period
49. Expenses made by the accused in respect of Rs.19,950/-
cooking gas connection No.632841 (Deposit)
50. Membership Fee paid by the accused to Rs.1,16,486/-
Mahalakshmi Layout Residence Forum
51. Membership Fee paid by the accused to Rs.1,27,000/-
Country Club
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52. Membership Fee paid by the accused to Rs.29,680/-
Citizen Cultural Association (Registered)
53. Membership Fee paid by the accused to Lion’s Rs.14,000/-
Club of Bengaluru
54. Membership Fee paid by the accused to Rs.20,000/-
Royal’s Sports and Cultural Association
(Reg.)
55. Payment made by the accused towards Rs.2,500/-
Passport bearing No.G-0584762
56. Payment made by wife of the accused towards Rs.1,000/-
Passport bearing No.G-4741256
57. Rent paid by the accused at various places Rs.1,79,675/-
during the Check period
58. Membership Fee paid by the accused to Rs.2,100/-
Tharalabalu Welfare Association
59. Membership Fee paid by the accused to Rs.130/-
Kempegowda House Co-operative Society
Ltd.
60. Membership Amount paid by the wife of the Rs.4,49,725/-
accused including advance amount to
purchase site to the Rajajinagar Housing Co-
operative Society Ltd.
61. Donation made to Blind Welfare Development Rs.20,000/-
Board
62. Donation given to ISKCON Temple Rs.93,556/-
63. Donation given to Basaveshwara Educational Rs.1,00,001/-
Trust Regd.
64. Payment made towards repair of water filter Rs.8,610/-
65. Investment made at Sri.Byraveshwara Gold Rs.10,000/-
Scheme
66. Donation given to Danamma Devi Trust Rs.5,001/-
67. Expenses incurred for Birthday Party and Rs.10,000/-
marriage anniversaries
68. Payment made by the accused towards MSIL Rs.1,89,726/-
chit fund No.CL-23/27
69. Payment made by the wife of the accused Rs.1,89,719/-
towards MSIL Chit Fund No.CL-23/28
70. Payment made by the accused towards Rs.4,26,744/-
Margadharshi Chit Fund, Hassan, Chit
No.LT001THS-15
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71. Payment made by wife of the accused towards Rs.4,20,965/-
Margadharshi Chit Fund, Hassan, Chit
No.LT003THS-30
60. In respect of above said admitted
expenditures the prosecution has produced
and got exhibited Ex.P.345 to 348, 350, 351,
374, 375, 383, 364, 385, 396, 353, 391, 416,
409, 387, 365, 373, 354, 389, 403, 370, 379,
368, 355, 356, 366, 372, 417, 358, 359, 412,
360, 382, 349, 351, 361 to 363, 235, 306, 313,
307, 314, 388 and 390. Since the above said
item No.1 to 7, 9 to 15 and 17 to 47 and 49 to
71 were admitted by the accused, the Court is
of the opinion that there is no necessity to
appreciate and analyze oral and documentary
evidence in detail regarding the above said
admitted expenditures.
61. As mentioned above, the accused in this
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case has disputed item No.8, 16 and 48
expenditures as mentioned in the final report.
The total value of item No.1 to 71 as mentioned
in the final report is Rs.94,68, 564.76. The
accused has disputed the above mentioned
item No.8, 16 and 48 by taking different
contentions. Hence, the Court intends to
discuss said disputed items one by one by
taking into consideration contentions of both
side.
62. IN RESPECT OF DISPUTED ITEM NO.8 OF
THE EXPENDITURE.
In the final report the IO has shown item
No.8 expenditure as stamp duty and
registration charges paid by Smt.D.S.Ambika,
the wife of the accused, who is a partner of
Hemavathi Gas Agencies, Hassan in respect of
purchasing of Plot No.29A of B.Katihalli by the
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Spl.C.C. No. 1199/2019
said Hemavathi Gas Agencies and as per the
IO the expenditure made by the wife of the
accused is Rs.9,230/- and he has shown the
same as one of the expenditure of accused.
63. In respect of this expenditure No.8, the
prosecution has adduced evidence of IO
Sri.D.Shivaji Rao, who is examined as PW.10,
who deposed in his examination-in-chief that
the wife of the accused is a partner in
Hemavathi Gas Agencies and while purchasing
Plot No.29A at B.Katihalli Industrial Area from
KIADB and while registering the sale deed on
31-05-2006, she has paid stamp duty of
Rs.8,035/- and registration fee of Rs. 1,195/-,
in total she paid Rs.,9,230/- and hence he has
shown it as expenditure of the accused. He
has also deposed before the Court that in this
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Spl.C.C. No. 1199/2019
regard sale deed is produced as per Ex.P.352.
64. However, it is the contention of the
accused that since said Hemavathi Gas
Agencies is a partnership firm consisting wife
of the accused Smt.D.S.Ambika and one
Smt.Yashodha as partners, the expenditure
incurred by the said partnership firm while
purchasing the said plot is paid through the
fund of the partnership firm and therefore,
only 50% of the total costs, i.e. Rs.4,615/- to
be taken as the expenditure of wife of the
accused and remaining amount of Rs.4,615/-
needs to be deducted from the expenditure as
assessed by the IO.
65. In the cross-examination of PW.10 made
by the Learned Counsel for the accused, it is
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elicited that wife of the accused is one of the
partner in Hemavathi Gas Agencies and as
shown in Ex.P.423 Partnership Deed, profit
and loss has to be borne out by both the
partners equally and PW.10 has further
admitted that Ex.P.423 Partnership Deed
consists recitals to that effect. However,
PW.10 has denied that he ought to have taken
50% of the stamp duty and registration fees as
expenditure of wife of the accused. PW.10 has
however admitted that he has not enquired the
other partner of Hamavathi Gas Agencies in
this regard.
66. On careful perusal of the records, it
reveals that Ex.P.352 Sale Deed dtd.31-05-
2006 was executed by the KIADB in favour of
M/s.Hemavathi Gas Agencies represented by
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Smt.D.S.Ambika and Smt.D.S.Ambika has
signed the Sale Deed as a Managing Partner.
Further, the recitals of Ex.P.423 Partnership
Deed and Ex.P.352 registered Sale Deed,
clearly reveals that the wife of the accused
Smt.D.S.Ambika is one of the partner of said
Hamavathi Gas Agencies and therefore, as
rightly contended by the Learned Counsel for
the accused, 50% of the Stamp Duty and
Registration charges paid towards purchase of
Plot No.29A of B.Katihalli has to be considered
by the IO as expenditure of the accused.
Hence, 50% of Rs.9,230/- i.e. Rs.4,615/- needs
to be deducted from the total value of the
expenditure as assessed by the IO.
67. IN RESPECT OF ITEM NO.16 OF THE
EXPENDITURE.
In the final report, the IO has shown item
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No.16 in the expenditure column as expenses
incurred by the wife of the accused towards the
renewal of license to Hemavathi Gas Agencies
as Rs.24,000/-. It is the contention of the
accused that since wife of the accused is one of
the partner of Hemavathi Gas Agencies, the IO
ought to have taken 50% of Rs.24,000/- i.e.
Rs.12,000/- as expenditure of wife of the
accused.
68. The prosecution has examined the IO
Sri.D.Shivaji Rao as PW.10, who in his
examination-in-chief has deposed that wife of
the accused has spent Rs.6,400/- during the
year 2007 to 2010, Rs.7,600/- during the year
2010 to 2013 and Rs.10,000/- during the year
2013 to 2018 for the purpose of renewal of
license of Hemavathi Gas Agencies and hence,
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he has taken Rs.24,000/- as expenditure of
wife of the accused and added it as
expenditure of the accused. In this regard, the
prosecution has produced documents which is
found in file No.3 in page No.31 to 35, which is
marked as Ex.P.396. However, in his cross-
examination made by the Learned Counsel for
the accused, PW.10 has admitted that wife of
the accused is one of the partners of
Hemavathi Gas Agencies as per Ex.P.423
Partnership Deed and he has admitted that he
has not enquired the other partner
Smt.Yashodha in this regard.
69. The careful perusal of the recitals of
Ex.P.423, the Partnership Deed clearly reveals
that the wife of the accused Smt.D.S.Ambika is
one of the partners of the said partnership firm
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and hence, as discussed above, the IO ought to
have considered 50% of expenses incurred by
the said Partnership Firm for renewal of license
i.e. 50% of Rs.24,000/- i.e. Rs.12,000/- only
as expenses of wife of the accused and the
remaining amount of Rs.12,000/- has to be
deducted from the total value of the
expenditure as assessed by the IO.
70. IN RESPECT OF EXPENDITURE NO.48
PW.10 Sri. D.Shivaji Rao, the IO, in the
final report has mentioned Rs.10,000/- is the
salary paid by the accused to one
Kum.Lakshmi, who was working as a maid
servant at the residence of the accused, as
expenditure of the accused. It is the case of
the prosecution that at the time of search of
the house of the accused, said Kum.Lakshmi
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was found at the house of the accused and on
enquiry she informed the IO that from last 5
years she is working as a servant at the house
of the accused and in total till that date, the
accused paid Rs.10,000/- to her and on the
basis of her statement, the IO has shown
Rs.10,000/- as expenditure of the accused.
71. However, PW.10 Sri.D.Shivaji Rao in his
cross-examination made by the Learned
Counsel for the accused has admitted that he
has not secured any documents which reveals
that the accused has paid Rs.10,000/- to said
Kum.Lakshmi as salary. Further, PW.10 has
admitted that he has assessed the invisible
expenses of the accused and his family
members during the check period on the basis
of Ex.P.366, the report filed by PW.8. Further,
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he has admitted that in Ex.P.366 at column
No.19, the expenses regarding the salary paid
to Cook, Assistants including the maid
servants, etc. is shown. He has also admitted
in the said report the expert has considered the
expenses including the salary paid to servants
from 01-01-2009. However, PW.10 has denied
that hence, item No.48 Expenditure is
considered wrongly and he denied that there is
duplication.
72. In respect of this aspect, the Learned
Public Prosecutor has submitted that the IO
has properly considered the expenditure of the
accused and the same may be taken into
consideration. However, the Learned Counsel
for the accused has submitted that the
evidence on record and Ex.P.366 if taken into
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Spl.C.C. No. 1199/2019
consideration together, it clearly reveals that
the said assessment made by the IO regarding
expenditure at Sl.No.48 is incorrect and hence,
the said amount of Rs.10,000/- needs to be
deducted.
73. On careful perusal of the records, it
reveals that the prosecution has examined
Sri.S.V.Surya Prakash, the Deputy Director of
Department of Statistics as PW.8, who deposed
in his examination-in-chief that as per
Ex.P.366, he submitted a report about the
expenditure incurred by the accused and his
family members during the check period, in
respect of visible and invisible expenses.
However, in his cross-examination made by the
Learned Counsel for the accused, he has
admitted that in Ex.P.366, per-capita monthly
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expenditure report, he has included the salary
of servants and Cooks.
74. On careful analysis of evidence of PW.8
Sri.S.V.Surya Prakash and PW.10 Sri.D.Shivaji
Rao and Ex.P.366 PCME report, it clearly
reveals that PW.8 has taken into consideration
the salary paid to the servants, Cooks, etc. are
included in his report. Page No.451 of
Ex.P.366 clearly reveals this aspect. Page
No.454 of Ex.P.366 reveals that the Expert has
taken into consideration the salary paid to the
servants from 01-01-2009. Since the PW.8 in
PCME Report has already considered the
salary paid to the Maid Servant, the question of
again considering the salary paid to the maid
servant separately as expenditure, as shown by
the IO at Sl.No.48 is not correct and since the
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said aspect is duly covered under Ex.P.366
PCME report, the Court is of the opinion that
the said amount of Rs.10,000/- which is
shown as the expenditure No.48 of the accused
has to be deducted from the total assessment
of the expenditure as assessed by the IO in his
final report.
75. As discussed above this Court came to the
conclusion that in respect of item No.8 of
expenditure, the IO has wrongly added
Rs.4,615/- as expenditure of the accused and
so far as item No.16 of expenditure is
concerned, the IO has wrongly added
Rs.12,000/- as expenditure of the accused and
the Court has also come to the conclusion that
the IO has wrongly included Rs.10,000/-
separately as salary paid to the servant as item
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Spl.C.C. No. 1199/2019
No.48 of the expenditure and the same has to
be deducted from the total assessment of the
expenditure made by the IO. Hence, on
recalculation of the value of the expenditures of
the accused and his family members, this
Court holds the view that Rs.26,615/- has to
be deducted from Rs.94,68,564.76 and after
deduction of the same, the total expenditures
of the accused and his family members during
the check period is arrived at Rs.94,41,949.76.
INCOME
76. The IO, PW.10, Sri.D.Shivaji Rao, in his
final report has shown 31 items in Income
column and stated that the total income of the
accused during the check period is
Rs.1,85,45,713.56. As mentioned above, as
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Spl.C.C. No. 1199/2019
per the directions of the Hon’ble High Court of
Karnataka in Crl.Pt.No.6253/2020, PW.11
Sri.Rajesh Kotyan conducted further
investigation and submitted additional charge
sheet and included Sl.No.32 as income and
hence, the income of the accused is shown as
Rs.2,05,85,713.56. Quite obviously, the
accused has not disputed any of the aforesaid
heads of the income considered by the IO in
the final report and as stated in the additional
charge sheet.
77. However, in addition to the aforesaid
heads of income, the accused has contended
that the IO has deliberately left out several
other lawful sources of his income and also
that of his family members. The following are
the details of the income of the accused shown
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Spl.C.C. No. 1199/2019
as acquired during the check period:
SL.NO. DESCRIPTION OF THE VALUE OF THE
INCOME INCOME
ACCORDING TO THE
IO
1. Salary Income Rs.38,54,607.13
2. Salary of the wife of the Rs. 9,44,755.00
accused Smt.D.S.Ambika
availed from
M/s.Hemavathi Gas
Agencies & Interest on
Capital
3. Rent received by Rs.11,66,500.00
Smt.D.S.Ambika from
Plot No.29A of B.Katihalli
4. Agricultural Income Rs.66,94,862.05
received by accused
5. Loan availed from Rs. 3,00,000.00
Corporation Bank,
Nrupathunga Road,
Bengaluru
6. Loan availed by Rs. 1,97,000.00
Smt.D.S.Ambika from
Bank of India, Hassan
Branch
7. Interest received from Rs. 63,009.00
A/c.No.SB/01/8441
8. Interest received from Rs. 1,245.00
A/c
No.CLSB/01/110017
9. Interest received from SB Rs. 1,08,284.00
A/c No.01/000697
10. Balance amount in SB Rs. 1,324.00
A/c No.01/110008 of
Corporation Bank,
83
Spl.C.C. No. 1199/2019K.R.Puram Branch,
Hassan
11. Loan availed by accused Rs. 8,000.00
from KIADB
12. Maturity amount Rs.1,56,153.00
received by wife of the
accused from FD
No.060027 and 090080
of Corporation Bank,
Hassan
13. Income from Rs. 77,886.38
surrendering the
Reliance Life Insurance
Policy No.10937763
14. Income from Rs.2,51,098.00
surrendering the Bajaj
Life Insurance Policy
No.146107310
15. Income from Rs.2,67,744.00
surrendering the Bajaj
Life Insurance Policy
No.140248351 in the
name of Smt.D.S.Ambika
16. Maturity amount Rs. 70,215.00
received by the accused
from LIC Policy
No.61445182
17. Maturity amount Rs.1,13,195.00
received by the accused
from LIC Policy bearing
No.631099174
18. Income received from Rs.1,64,261.00
Survival Benefit and
Maturity amount from
LIC Policy No.722341297
19. Income received from Rs. 62,295.00
84
Spl.C.C. No. 1199/2019Survival Benefit and
Maturity amount from
LIC Policy No.631267910
20. Income from Rs.8,88,258.00
surrendering the
Insurance Policy No.
625950559 in the name
of wife of the accused
Smt.D.S.Ambika
21. Income received from Rs.8,97,659.00
surrendering LIC Policy
No.625950561
22. Income received by Rs. 80,000.00
Smt.D.S.Ambika as
Suvival Benefit amount
from LIC Policy
No.721292290
23. Income received by Rs. 00.00
Smt.D.S.Ambika as
Survival Benefit amount
from LIC Policy
No.629560068
24. Sale Proceeds received by Rs.3,50,000.00
accused after selling Tata
Indigo Car bearing KA 13
Z5
25. Sale Proceeds received by Rs.1,18,500.00
wife of accused after
selling Tata Ace bearing
No.KA13 9979
26. Sale Proceeds received by Rs. 6,000.00
accused after selling Yzd
bearing No.CAL 3359
27. Sale Proceeds received by Rs.5,00,000.00
accused after selling
Maruthi SX4 Car bearing
KA04 ME 5766
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Spl.C.C. No. 1199/2019
28. Amount received from Rs.1,43,764.00
MSIL Chit Fund No.CL-
23/27
29. \Amount received from Rs.1,83,764.00
MSIL Chit Fund No.CL-
23/28
30. Amount received from Rs.4,39,700.00
Margadharshi Chit Fund
No. LT 001THS-15
31. Amount received from Rs.4,35,635.00
Margadharshi Chit Fund
No. LT 003THS-30
32. Loan Income from Rs.20,40,000.00
Sri.D.C.Ashok
78. As mentioned above, out of the above said
32 heads of income, the accused has not
specifically disputed above mentioned 32
heads of income during the cross-examination
of PW.10. In respect of income shown at
Sl.No.3, some cross-examination is made to
PW.10 by suggesting that the rent received
from the shops related to M/s.Hemavathi Gas
Agencies is not considered by him. Further, in
respect of income shown at Sl.No.4, it is
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Spl.C.C. No. 1199/2019
suggested to PW.10 by the Learned Counsel for
the accused that he has secured the
documents from the Department of Agriculture
and Horticulture before assessing the actual
income of the accused from agriculture. PW.10
has denied that he has not considered those
documents and deliberately left out lawful
sources of the accused and his family
members.
79. In the written arguments filed by the
Learned Counsel for the accused, at para
No.27, it is stated that though the accused has
disputed the value in respect of the income
mentioned in Sl.No.3 and 4 during the course
of cross-examination, the accused does not
wish to make any reference under the written
arguments and reserves his right of oral
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Spl.C.C. No. 1199/2019
argument on those disputed income.
80. During the course of arguments, the
learned Counsel for the accused has submitted
that the method adopted by the IO considering
the gross income and realistic income are not
proper and Hon’ble Apex Court and Hon’ble
High Court of Karnataka, Bengaluru in several
cases held that the method adopted by the
officials considering income from agriculture
on the basis of realistic income and gross
income is wholly improper. However, Learned
Public Prosecutor has submitted that, in
respect of these aspects there is no cross-
examination is made to the Investigating
Officers and even the accused has not adduced
defence evidence specifically in this regard.
On careful perusal of the records, it reveals
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Spl.C.C. No. 1199/2019
that as rightly pointed out by the Learned
Public Prosecutor, the accused has not
specifically cross-examined PW.10 in this
regard and the accused who is examined as
DW.1, also has not stated anything in his
evidence and not produced any documents to
substantiate his said contention and therefore,
this Court hereby negativates the contention of
the accused that the value in respect of the
income mentioned in Sl.No.3 and 4 is not
correct.
81. As afore mentioned, the accused has taken
a specific defence that the prosecution has
deliberately left out his lawful sources of
income and hence, the same needs to be
considered on the basis of available oral and
documentary evidence. During the course of
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Spl.C.C. No. 1199/2019
arguments, in this regard, the Learned Counsel
for the accused has placed reliance upon the
oral and documentary evidence. The left out
income, as contended by the accused is
discussed as follows:
82. (a). RENT & RENTAL DEPOSIT RECEIVED
BY SMT. D.S.AMBIKA FROM SRI.T.R.
RANGASWAMY IN RESPECT OF PORTION
OF SITE NO.29A OF B.KATIHALLI.
(i) It is the contention of the accused that as
per Ex.P.332 a rental agreement dtd.14-03-
2012 entered between M/s.Hemavathi Gas
Agencies and Mr.T.R.Rangaswamy and the said
rental agreement was seized by the IO while
conducting mahazar as per Ex.P.326 and the
recitals of the agreement reveals that the
tenancy was for a period of 2 years and 50% of
rental income i.e. Rs.76,000/- and 50% of
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Spl.C.C. No. 1199/2019
refundable deposit i.e. Rs.25,000/- is left out
by the IO and hence, both the amounts
required to be considered as left out income of
the accused. It is also argued by the learned
Counsel for the accused that PW.7 in his cross-
examination at para No.49 has admitted about
seizure of Ex.P.332 Rent Agreement under
Ex.P.326 Mahazar and PW.10 has admitted in
his cross-examination at Para No.145 that
during the search and seizure Ex.P.332 was
seized by the IO.
(ii) On careful perusal of the documents and
evidence on record, it clearly reveals that it is
an undisputed fact that on 26-09-2013 search
was conducted at the house of the accused and
on the same day as per Ex.P.326 panchanama
was conducted at office of M/s Hemavathi Gas
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Spl.C.C. No. 1199/2019
Agencies, K.R.Pura Extension, Hassan and the
IO has seized Ex.P.332 the Rent Agreement
dtd.14-03-2012. The recitals of Ex.P.332
reveals that the same was entered between
M/s.Hemavathi Gas Agencies and
Mr.T.R.Rangaswamy and the duration of the
tenancy was for 2 years which commences
from 01-04-2012 on a monthly rent of
Rs.9,500/- and refundable deposit of
Rs.50,000/-. Further, it is an admitted fact
that PW.7 Sri. Puttaswamy.H. and PW.10
Sri.D.Shivaji Rao in their cross-examination
have clearly admitted about seizure of Ex.P.332
while conducting Ex.P.326 panchanama.
Admittedly, the tenanted property shed in Plot
No.29/3 of B.Katihalli is belonged to
M/s.Hemavathi Gas Agencies, in which
Smt.D.S.Ambika is one of the partner and as
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Spl.C.C. No. 1199/2019
such, she is entitled for 50% of total rent of 16
months from 01-04-2012 till 26-09-2013,
which is 50% of Rs.1,52,000/- i.e.
Rs.76,000/-. Further, the wife of the accused
is also entitled for 50% of refundable deposit of
Rs.50,000/- i.e. Rs.25,000/-. Hence, based on
the above said facts and evidence on record,
this Court holds that the aforesaid amount of
Rs.76,000/- + Rs.25,000/- = Rs.1,01,000/-
has to be added as income of the accused.
(b) RENT & RENTAL DEPOSIT RECEIVED BY
SMT.D.S.AMBIKA FROM SRI.B.S.
UMASHANKAR IN RESPECT OF PORTION OF
SITE NO.29A OF B.KATIHALLI.
(i) It is the specific contention of the accused
that on 07-05-2013 between M/s.Hemavathi
Gas Agencies and Sri.B.S.Umashakar, a rental
agreement came into existence and on 26-09-
2013, the IO while conducting panchanama at
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Office of M/s. Hemavathi Gas Agencies,
Hassan seized the said rental agreement and
as per the agreement, the wife of the accused is
entitled for rental income of Rs.36,000/- and
refundable deposit of Rs.50,000/- and these
facts were clearly admitted by PW.7 Sri.
H.P.Puttaswamy and PW.10 Sri.D.Shivaji Rao
in their cross-examination. Hence, the Learned
Counsel for the accused has submitted that
both the amounts need to be considered as
income of the accused.
(ii) On the other hand, the Learned Public
Prosecutor has submitted that the said rental
agreement dtd.07-05-2013 relied upon by the
accused is not exhibited and the IO has seized
only Xerox copy of said rent agreement and
hence, the said contention of the accused is
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not tenable.
(iii) On careful perusal of the records, it reveals
that it is an undisputed fact that while
conducting Ex.P.326 panchanama, the IO has
seized some documents which includes copy of
Rent Agreement dtd.07-05-2013 and Ex.P.326
shows that at Page No.4, Sl.No.8 the Xerox
copy of the above mentioned Rent Agreement
dtd.07-05-2013 is seized. As rightly pointed
out by the Learned Public Prosecutor, since the
said Rent Agreement dtd.07-05-2013 is not
exhibited, the same cannot be considered by
the Court. Apart from this, the accused has not
taken any steps to prove this aspect and even
in his defence evidence he has not taken any
contention in this regard. Since the said rent
agreement dtd.07-05-2013 is a Xerox copy, on
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the basis of said un-exhibited document, the
Court cannot give any finding and the Court
opines that the accused cannot take any
benefit from the said document and thereby,
the Court negativates the contention of the
accused that the IO has deliberately left out
the rent and rental deposits received by
Smt.D.S.Ambika from Mr.Uma Shankar in
respect of portion of Site No.29A of B.Katihalli.
(c) INCOME FROM MARGADHARSHI CHIT
FUND:
(i) It is the specific defence of the accused that
under schedule-15-B, the accused has
declared that he has taken 3 different chits
from Margadharshi Chits Pvt.Ltd. and the IO
has taken the income from 2 chits out of the 3
chits mentioned by him in the schedule and
96
Spl.C.C. No. 1199/2019income received by the accused from the 3 rd
chit i.e. Rs.9,29,400/- has not been considered
by the IO for the reasons best known to him.
The Learned Counsel for the accused has also
submitted that the income received by the
accused from the above said Margadharshi
Chit Fund is duly credited to the account of the
accused and Ex.P.354, the Bank Statement
supports the contentions of the accused and
Ex.P.343, APR of the accused also reveals that
the accused has declared the receipt of said
amount in his assets and liability statement
and all these aspects were admitted by PW.10
in his cross-examination. It is also submitted
on behalf of the accused that the accused who
is examined as DW.1, in his oral evidence has
stated these facts and also produced Ex.D.1
Letter issued by Margadharshi Chit Fund Pvt.
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Ltd. and Ex.D.2 Statement and hence, the
prize amount of Rs.9,29,400/- is required to be
considered as income of the accused.
(ii) The materials on record reveals that the
accused under Schedule-15-B Statement,
which is marked as Ex.P.410 has clearly
stated that he had taken 3 different chits from
Margadharshi Chit Fund Pvt. Ltd. It is an
admitted fact that the IO has taken the income
from 2 chits i.e. Rs.4,39,700/- and
Rs.4,35,635/- and not considered the face
value of another chit of Rs.9,29,400/-.
Further, Ex.P.354, Bank Statement particularly
page No.283 reveals that on 08-03-2012 by
way of Cheque No.65459 Rs.9,29,400/- is
credited to the account of the accused. It is
also an admitted fact that in Ex.P.343 APR, the
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accused has declared about receipt of above
said Rs.9,29,400/- from the Chit and all these
aspects were clearly admitted by PW.10
Sri.D.Shivaji Rao, in his cross-examination at
para No.148 and 149.
(iii) Apart from this, the accused who is
examined as DW.1 in his evidence has clearly
stated that he has received Rs.9,29,400/- from
the Chit and he has declared the same in his
APR and he has produced Ex.D.1 Letter and
Ex.D.2 Statement issued by Margadharshi Chit
Fund Pvt. Ltd. Admittedly, Ex.D.2 was marked
subject to objection, since the same is not
accompanied with Certificate under Sec.65B of
The Indian Evidence Act. In respect of marking
of Ex.D.2, this Court has passed a detailed
order on 13-12-2024 and it appears that the
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accused has not challenged it. Since Ex.D.2 is
not accompanied with a Certificate under
Sec.65B of The Indian Evidence Act (Sec.63 of
BSA 2023), the same cannot be taken into
consideration, in view of the decisions of the
Hon’ble Apex Court in the case of Arjun Pandit
Rao Khotkar vs. Kailash Kushan Rao Gorantyal
and in the case of State of Karnataka Vs.
M.R.Hiremath. Hence, the accused cannot
take any aid from Ex.D.2 to support his
contentions. However, on the basis of aforesaid
Ex.P.354 Bank Statement, Ex.P.343 APR,
Ex.P.401 15-B Statement, the Court is of the
opinion that without assigning any reason the
IO has left out Rs.9,29,400/- income of the
accused and the same ought to have been
considered by the IO.
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(iv) During the course of arguments, the
Learned Counsel for the accused has fairly
conceded that in the written argument, the
accused has made a claim seeking to add
Rs.9,29,400/- as his income, but the amount
paid by the accused is required to be deducted
from the said amount and in the written
argument, he has not stated the said thing.
(v) Admittedly, the accused has received
Rs.9,29,400/- from Margadharshi Chit Fund
and he has deposited an amount of
Rs.8,44,853/- and hence, the income to be
added is only Rs.84,637/-. Hence, the Court is
of the opinion that Rs.84,637/- ought to have
been considered as income of the accused and
the IO without any reason has left out it and
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the same is need to be added as income of the
accused.
(d) AMOUNT RECEIVED BY SMT.D.S.Ambika
FROM HER FATHER.
(i) It is the specific contention of the accused
that the IO has not taken into consideration
the declaration made by the accused in
schedule 13A, wherein the accused has
specifically declared that his wife intended to
purchase a residential property from one
Mr.Sathish and for the said purpose, her father
transferred her Rs.6,00,000/- on 25-07-2005
and further Rs.6,00,000/- on 03-08-2005. It
is also the case of the accused that since the
said deal was cancelled, both the demand
drafts which were purchased by the wife of the
accused from her account in the name of
Mr.Sathish, out of the money sent by her father
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were cancelled.
(ii) The accused has also contended that his
wife further intended to purchase a different
property which was for more price than the
earlier one and therefore her father had
transferred further sum of Rs.5,00,000/- on
02-02-2006 and Rs.5,00,000/- on 02-02-2006.
It is also submitted on behalf of the accused
that all these facts are evident from schedule
13A and bank account extract, which is
marked as Ex.P.414 and further these facts
were clearly admitted by PW.10 Sri.D.Shivaji
Rao in his cross-examination. It is the further
contention of the accused that out of the total
amount of Rs.22,00,000/- received from her
father, his wife has utilized a sum of
Rs.16,00,000/- to purchase the property as
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mentioned at Sl.No.1 of the asset and the IO
has given benefit to the wife of the accused to
an extent of Rs.13,03,250/- only and therefore,
the balance amount of Rs.8,96,750/- should
have been taken as income of the wife of the
accused.
(iii) The materials on record reveals that as per
schedule 13A, the accused has made
declaration and at page No.605 of Ex.P.406
reveals that at Sl.No.7, the accused has made a
declaration that his wife has purchased Flat
No.10 in Platinum City Apartment and the
amount is transferred to his wife’s account by
her father and through the said amount, she
has purchased the same. Further, Ex.P.414
Statement 22 reveals that at page No.857 in
the passbook entry pertaining to the account of
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Smt.D.S.Ambika on 01-08-2005 Rs.6,00,000/-
and on 18-08-2005 Rs.6,00,000/- credited to
the account of wife of the accused. Further, at
page No.858 and 859 of Ex.P.414, there is an
entry that on 02-02-2006 Rs.5,00,000/- and
again on the same day Rs.5,00,000/- credited
to the account of the wife of the accused.
(iv) Further, PW.10, Sri.Shivaji Rao, who is the
IO in his cross-examination at para No.146
and 147 has admitted that during his
investigation he came to know that the accused
has clearly stated in schedule 13A, the manner
in which Rs.22,00,000/- was credited to his
wife’s account by his father-in-law. PW.10 has
also admitted that the copy of the bank
statements secured by him also substantiate
these facts. He has further admitted that while
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considering asset No.1 of the accused, he has
given benefit to the wife of the accused to an
extent of Rs.13,03,250/- and he has further
admitted that in respect of balance amount of
Rs.8,96,750/- he has not stated anything in
his final report, why the same is not considered
as the income of the accused.
(v) The above said oral and documentary
evidence on record clearly reveals that the
accused in schedule 13A, which is marked as
Ex.P.406 has declared about the credit of
Rs.22,00,000/- to the account of
Smt.D.S.Ambika by her father and as
mentioned above, Ex.P.414 clearly reveals that
on different dates said amount of
Rs.22,00,000/- was credited to the account of
Smt.D.S.Ambika. Further, it is also an
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admitted fact that while considering asset
No.1, the IO has deducted Rs.13,03,250/- out
of Rs.22,00,000/- and the balance amount of
Rs.8,96,750/- is not at all considered by the IO
as income of the accused and even no reason is
assigned by the IO in the final report to
exclude the said amount as income of the
accused.
(vi) As mentioned above, the balance amount of
Rs.8,96,750/- ought to have been considered
by the IO as income of the wife of the accused
and hence, for the aforesaid reasons, the Court
is of the opinion that Rs.8,96,750/- should be
considered as income of the accused.
(e) INTEREST FROM THE ACCOUNT
NO.84601010008226 OF BANK OF INDIA.
(i) It is the specific case of the accused that
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during the investigation, the IO has collected
the bank account extract of the aforesaid
account which stands in the name of the
accused and the IO has properly considered
the account balance as on the date of raid as
asset of the accused. However, it is the
contention of the accused that the IO has not
considered the interest accrued and credited to
the said account. In this regard, the learned
Counsel for the accused relied upon the bank
statement pertaining to the said account,
which is marked as Ex.P.354 and further
submitted that PW.10, the IO in his cross-
examination has admitted this aspect and
hence, the total interest credited to the said
account is Rs.3,74,523/- and the same may be
considered as income of the accused.
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(ii) On careful perusal of the materials on
record, it reveals that the IO in this case has
considered the account balance in the
aforementioned account of the accused held at
Bank of India, as on the date of the raid, as
asset of the accused, which can be found in
Sl.No.16 of the asset column. Further, it is an
admitted fact that during the investigation, as
per Ex.P.354, the IO has collected the account
extract of the aforesaid account and page
No.208 to 305 of Ex.P.354 reveals that total
periodical interest credited to the account
during the said period is Rs.3,74,523/- and
admittedly, PW.10 the IO in his cross-
examination has clearly admitted that he has
not considered the interest accrued on the said
amount as income and when it is suggested to
him, that total interest of Rs.3,74,523/- is
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credited to the account of the accused, he has
stated that he cannot say anything in this
regard. Admittedly, interest accrued and
credited to the account of the accused ought to
have been considered as income of the accused
and hence, the Court is of the opinion that
Rs.3,74,523/- the periodical interest from the
aforesaid account shall be considered as
income of the accused.
(f) SALE PROCEEDS FROM SALE OF HALF
PORTION OF KHATHA NO.270 OF HADIKERE
VILLAGE
(i) It is the specific contention of the accused
that under schedule No.11B, he has declared
that originally the above mentioned property
was allotted to his father under the family
partition dtd.17-03-1989 and on the basis of
the Will executed by his father, the said
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property was bequeathed in favour of him and
his brother Jnanesh. It is also the contention
of the accused that on the basis of the
authorization given by him, his brother
Jnanesh sold the entire extent under the
Registered Sale Deed dtd.02-11-2012 for sale
consideration of Rs.3,02,000/- and out of the
total sale consideration, Mr.Janesh paid 50% of
the sale proceed i.e. Rs.1,23,583/- to him and
the IO without any basis has omitted the same
as his income. It is also argued by the Learned
Counsel for accused that PW.10 in his cross-
examination has clearly admitted these aspects
and hence, the above said amount of
Rs.1,23,583/- may be considered as income of
the AGO. The materials on record reveals that
under Schedule 11B which is marked as
Ex.P.404, the accused has declared at Sl.No.5
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that above mentioned property is acquired by
him and his brother under the Will and the
same has been sold and he has received
Rs.1,23,583/- his share. At page No.562 by
mentioning a note, the accused has described
the manner of acquisition of above mentioned
property by his father under the Registered
Partition Deed and subsequent acquisition of
the said property by him and his brother by
virtue of the Will executed by his father.
(ii) Further, Ex.P.325 Mahazar reveals that on
the date of raid the IO has seized Will dtd.10-
04-1991 executed by Patel Veerabhadrappa in
favour of his children and at Sl.No.7, the IO
has seized Partition Deed dtd.17-03-1989,
which is related to the above mentioned
property and the copy of the Sale Deed
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executed by Mr.Jnanesh is produced by the
prosecution along with Ex.P.404 which reveals
that the total sale consideration received was
Rs.3,02,000/- and admittedly, the accused
since having half right over the said sale
proceeds, he is entitled for Rs.1,23,583/-,
which is half of the sale value of the property.
The IO ought to have considered the same as
income of the accused and PW.10, the IO in his
cross-examination has admitted that he has
not considered the same as income of the
accused, though he admitted that the accused
has declared it under Schedule 11B. The
copy of the sale deed dtd.02-11-2012 is
annexed to Ex.P.404 reveals that brother of the
accused by name Sri.H.V.Jnanesh sold the
above said property to one Mr.H.L.Shashidhar
for above mentioned sale consideration. Even
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though, nothing is stated in the said sale deed
regarding the authorization given by the
accused in favour of Sri.H.V.Jnanesh, in view
of the acquisition of said property by the
accused under the Will, he is entitled for half
share in the said property and since the said
property is sold, he is entitled for half of the
sale value of the property and hence, the Court
holds the view that Rs.1,23,583/- shall be
considered as income of the accused.
(g) INCOME FROM SALE OF INDICA CAR
BEARING REG.NO.KA13/N 5666 FOR
RS.2,75,000/-
(i) It is the contention of the accused that in
schedule 14D, he had made a declaration that
the above said car was sold by him on 26-05-
2003 for a sum of Rs.2,75,000/- in favour of
one Shanthaveeranna and PW.10 the IO has
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taken the purchase value of the car as asset at
Sl.No.17 and also considered the expenditure
incurred towards the said car till 26-05-2003
and these facts shows that subsequent to 26-
05-2003, the accused was not holding the said
car. It is argued by the Learned Counsel for
the accused that strangely the IO has not
considered the sale price as income of the
accused and the subsequent purchaser of the
car is also not enquired in this regard and all
these facts were admitted by PW.10 in his
evidence and hence, Rs.2,75,000/- may be
considered as income of the accused.
(ii) On the other hand, the Learned Public
Prosecutor has submitted that the said
contention of the accused is not substantiated
by adducing required oral and documentary
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evidence and hence, said contention is not
acceptable. Ex.P.409 Schedule 14D reveals
that the accused has declared that he has sold
the above said vehicle to one
D.C.Shanthaveeranna on 26-05-2003 and the
sale consideration is shown as Rs.2,75,00
(instead of Rs.2,75,000/-). When IO is cross-
examined in this regard, PW.10 in his cross-
examination at para No.151 has denied that
due to clerical mistake instead of
Rs.2,75,000/-, the accused has declared
Rs.2,75,00.
(iii) It is also one of the contention of the
Learned Counsel for the accused that IO has
considered the expenditure incurred for the
above said Car till 26-05-2003 only and this
fact shows that post 26-05-2003 the accused
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was not holding the said car and hence, the
amount as declared by the accused is required
to be considered as his income. The final
report reveals that PW.10 has considered the
purchase value of the car as asset No.17 and
he has also considered the expenditure
incurred for maintenance and service of the
said car under expenditure No.21. However,
admittedly, the accused has not produced any
document which shows that ownership of the
said car was transferred from him to Sri.D.C.
Shanthaveeranna. The accused ought to have
furnished copy of RC and other relevant
documents in support of his contention and
the accused has not made any efforts to
substantiate his said contentions.
(iv) Apart from this, it is relevant to note that
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the alleged purchaser of the car is one
D.C.Shanthaveeranna, who is none other than
the father-in-law of the accused. The accused
has also not chosen to examine said alleged
purchaser. Hence, in view of the absence of
required oral and documentary evidence,
evidencing the alleged sale transaction as
contended by the accused in respect of above
said car, the Court is of the opinion that the
accused has failed to substantiate his said
contentions and the said amount of
Rs.2,75,000/- cannot be considered as income
of the accused.
(h) AMOUNT RECEIVED BY SMT.D.S.AMBIKA
FROM MR.UMASHANKER AND MR.D.S.
GIRISH
(i) It is the contention of the accused that the
bank statement of account No.SB/1/000697,
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which related to Smt.D.S.Ambika maintained
at Corporation Bank reveals that on 28-01-
2013, she has received Rs.75,000/- from
Mr.Umashanker and on 06-06-2013, she has
received an amount of Rs.10,00,000/- from
D.S.Girish and hence, both amounts may be
considered as income of wife of the accused.
During the course of arguments, the Learned
Counsel for the accused relied upon Ex.P.353
in this regard.
(ii) The perusal of materials on record reveals
that during the course of investigation the IO
has secured Accounts statement pertaining to
above mentioned account of wife of the
accused. Page No.267 of File No.2 reveals that
on 06-06-2013 Rs.10,00,000/- is credited to
account of the wife of the accused by
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Sri.D.S.Girish and Page No.265 reveals that on
28-01-2013 one Uma Shankar has deposited
Rs.75,000/- to the account of wife of the
accused. In the cross-examination of PW.10,
it is suggested to him that on the aforesaid
dates Rs.10,00,000/- and Rs.75,000/-
respectively credited to the account of the wife
of the accused and then PW.10 has admitted
the said suggestion only after going through
the records. The copy of Income Tax returns
filed by the wife of the accused also reveals
that she has declared about receipt of said
amount of Rs.10,00,000/- and Rs.75,000/- in
the relevant period.
(iii) The above said facts and evidence on
record clearly reveals that on the aforesaid
dates as contended by the accused,
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Rs.10,00,000/- on 06-06-2013 and
Rs.75,000/- on 28-01-2013 credited to the
account of the wife of the accused by
Sri.D.S.Girish and Sri.Umashankar
respectively. Therefore, the IO ought to have
considered Rs.10,75,000/- as income of wife of
the accused, but without any reason, he has
omitted it. Hence, on the basis of the available
bank statement and evidence on record, the
Court comes to the conclusion that said
amount of Rs.10,75,000/- is to be considered
as income of wife of the accused.
83. In view of the aforesaid discussion
regarding the contention of the accused that
the IO has left out his lawful income, the Court
holds that to the admitted income of
Rs.2,05,85,713/-, as assessed by the IO, the
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above said amounts of Rs.1,01,000/-,
Rs.84,637/-, Rs.8,96,750/-, Rs.3,74,523/-
Rs.1,23,583/-, Rs.10,75,000/- in total
Rs.26,55,493/- is required to be added and on
recalculation, the Court comes to the
conclusion that the income of the accused and
his family members during the check period is
Rs.2,32,41,206/-.
84. Hence, in view of the above said
discussions on the basis of evidence and
materials on record, the Court recalculates the
assets, expenditure and income of the accused
during the check period as mentioned below in
comparison with the calculation made by the
IO and the accused also.
As per the IO As per the AGO As per the
Calculation of the
Court
1. Assets Rs.1,35,59,959.58 Rs.1,27,62,780 Rs.1,28,75,965.33
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2.Expendi- Rs. 94,68,564.76 Rs. 94,41,949 Rs. 94,41,949.76
ture
3. Assets+ Rs.2,30,28,524.30 Rs.2,22,04,729 Rs.2,23,17,195.09
Expendi-
ture
4. Income Rs.2,05,85,713.56 Rs.2,44,46,969 Rs.2,32,41,206.00
5. DA Rs.24,42,810.74 NIL NIL
6.Percen- 11.86% NIL NIL
tage
85. As mentioned above, as per the
calculation arrived by the Court on the basis of
evidence on record, the income of the accused
during the check period is Rs.2,32,41,206/-
and the asset and expenditure is
Rs.2,23,17,915/-, which means the income of
the accused during the check period is more
than the asset and expenditure and hence, the
Court holds that the prosecution has failed to
substantiate its contention that during the
check period the accused is found in
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possession of the property disproportionate to
his known source of income for which he failed
to satisfactorily explained and hence, the Court
is of the view that the prosecution has failed to
prove that the accused has committed an
offence defined under Sec.13(1)(e) punishable
under Sec.13(2) of P.C.Act, 1988.
86. During the course of arguments Sri.P.N.H.,
the Learned Counsel for the accused has
submitted that the burden of proof in a case of
this nature is always upon the prosecution and
the Hon’ble Apex Court in several decisions
held that burden of proving everything
essential to establish the charge against the
accused lies upon the prosecution and that
burden never shifts. The Learned Counsel for
the accused has also submitted that in the
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present case the prosecution has failed to
prove the existence of mandatory ingredients of
Sec.13(1)(e) of P.C.Act and hence, he requested
for acquittal of the accused. It is also
submitted on behalf of the accused that in the
present case PW.10, the IO in his evidence no
where stated the reason for his ultimate
opinion and the prosecution has not placed
absolutely any evidence which makes the
Court to arrive at a particular conclusion
regarding the allegation made against the
accused.
87. On the other hand, the Learned Public
Prosecutor has submitted that the prosecution
has placed relevant and required materials to
substantiate the allegations leveled against the
accused and sought for appropriate orders in
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accordance with law.
88. During the course of arguments, The
Learned Counsel for the accused has relied
upon the following citations:
1. (1977)1 SCC 816 in the case of
Krishnanand Agnihotri Vs. The State of
Madhya PradeshIn this decision the Hon’ble Apex Court
held that an excess of less than 10% of
disproportionate asset would not justify
application of the presumption. Considering
the facts of the said case on hand, at para
No.33 of the judgment, the Hon’ble Apex Court
held that the assets possessed by the appellant
were thus in excess of the surplus income
available to him, but since the excess is
comparatively small-it is less than 10% of the
total income and we do not think it would be
right to hold that the assets found in the
possession of the appellant were
disproportionate to his known sources of
income so as to justify the raising of the
presumption under Sec.5(3).
The above said decision is relevant while
considering a case of this nature, because the
Hon’ble Apex Court has laid down the
principles that when the assets possessed by
the AGO is in excess of the surplus income
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available to him, but if the excess is
comparatively small, less than 10% of the total
income, then under such circumstance, the
presumption under Sec.5(3) of P.C.Act, 1988
cannot be raised.
2) (1997)6 SCC 171 in the case of Vijender Vs.
State of Delhi.
In this decision the Hon’ble Apex Court
considered the scope of Sec.60, 157, 6 and 27
of The Indian Evidence Act and Sec.162 of
Criminal Procedure Code and held that a
finding of guilt cannot be recorded against an
accused without a trial, relying solely upon the
Police Report submitted under Sec.173 of
Cr.P.C., which is the outcome of an
investigation. The Hon’ble Apex Court at para
No.25 of the Judgment further observed that
the result of investigation under Chapter 12 of
Cr.P.C. is a conclusion that an Investigating
Officer draws on the basis of materials
collected during investigation and such
conclusion can only found the basis of a
competent Court to take cognizance there upon
under Sec.190(1)(b) Cr.P.C. and to proceed with
the case for trial, where the materials collected
during investigation are to be translated into
legal evidence. It is also observed by the
Hon’ble Apex Court that the Trial Court is then
required to base its conclusion solely on the
evidence adduced during the trial, and it
cannot rely on the investigation or the result
thereon.
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This decision is relied upon by the Learned
Counsel for the accused to support his
contention that during the trial the final report
cannot be marked in a case of this nature and
only on the basis of final report, the Court
cannot adjudicate the case. The careful
perusal of the principles laid down and the
observations made by the Hon’ble Apex Court
in the aforesaid decision clearly reveals that
the Court shall not base its findings on the
result of investigation and the Courts require
to base its conclusion solely on the evidence
adduced during the trial and it shall not rely
on the investigation or its result.
(3) 1987(Supp.) SCC 379 in the case of State of
Maharashtra Vs. Pollonji Darabshaw
Daruwalla
In this decision the Hon’ble Apex Court
while considering the scope of Sec.5(1)(e) and
5(2) of P.C.Act, 1947 at para No.23 held that
But on the question whether the extent of the
disproportion is such as to justify a conviction
for criminal misconduct under Section 5(1)(e)
read with Section 5(2), we think, we should
not, in the circumstances of the case, interfere
with the verdict of the High Court as, in our
view, the difference would be considerably
reduced in the light of the factors pointed out
by the High Court. A somewhat liberal view
requires to be taken of what proportion of
assets in excess of the known sources of
income constitutes “disproportion” for purpose
of Section 5(1)(e) of the Act.
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The principles laid down and the
observations made by the Hon’ble Apex Court
in the above said decision is relevant while
considering a case of this nature wherein
allegation is made against the public servant
for having committed an offence punishable
under Sec.13(1)(e) r/w Sec.13(2) of P.C.Act,
1988.
(4) (1992) Vol.4 SCC 45 in the case of
M.Krishna Reddy Vs. State Deputy
Superintendent of Police, Hyderabad
In this decision the Hon’ble Apex Court
while considering the scope of Sec.5(1)(e) r/w
5(2) of P.C.Act, 1947 held and observed what
are the mandatory ingredients to be proved to
establish charge under Sec.13(1)(e) of P.C.Act,
1988. The Hon’ble Apex Court held that initial
burden of proof is on the prosecution and after
that burden is discharged by the prosecution,
onus shifts on accused.
At Para No.6 of the judgment, the Hon’ble
Apex Court held that “an analysis of Section
5(1)(e) of the Act, 1947 which corresponds to
Section 13(1)(e) of the new Act of 1988 shows
that is not the mere acquisition of property
that constitutes an offence under the
provisions of the Act but it is the failure to
satisfactorily account for such possession that
makes the possession objectionable as
offending the law.
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Spl.C.C. No. 1199/2019
At para No.7 of the judgment, the Hon’ble
Apex Court held that “to substantiate a charge
under Section 3(1)(c) of the Act, the
prosecution must prove the following
ingredients, namely, (1) the prosecution must
establish that the accused is a public servant,
(2) the nature and extent of the pecuniary
resources or property which were found in his
possession (3) it must be proved as to what
were his known sources of income, i.e. known
to the prosecution and (4) it must prove, quite
objectively, that such resources or property
found in possession of the accused were
disproportionate to his known sources of
income. Once the above ingredients are
satisfactorily established, the offence of
criminal misconduct under Section 5(1)(e) is
complete, unless the accused is able to
account for such resources or property. In
other words, only after the prosecution has
proved the required ingredients, the burden of
satisfactorily accounting for the possession of
such resources or property shifts to the
accused.
The above said decisions relevant
regarding burden of proof and ingredients to be
proved in a case of this nature.
(5) (2017) 14 SCC 442 in the case of Vasant
Rao Guhe Vs. State of Madya Pradesh.
In this decision, Hon’ble Apex Court held
that a person cannot be subjected to a criminal
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prosecution either for a charge which is
amorphous and transitory and on evidence
that is conjectural or hypothetical.
At Para No.20 of the judgment, the
Hon’ble Apex Court held that “As ordained by the above
statutory text, a public servant charged of criminal misconduct thereunder
has to be proved by the prosecution to be in possession of pecuniary
resources or property disproportionate to his known sources of income, at
any time during the period of his office. Such possession of pecuniary
resources or property disproportionate to his known sources of income may
be of his or anyone on his behalf as the case may be. Further, he would be
held to be guilty of such offence of criminal misconduct, if he cannot
satisfactorily account such disproportionate pecuniary resources or property.
The explanation to Section 13(1)(e) elucidates the words “known sources of
income” to mean income received from any lawful source and that such
receipt has been intimated in accordance with the provisions of law, rules,
orders for the time being applicable to a public servant”.
At Para No.21 of the judgment, the Hon’ble
Apex Court held that “From the design and purport of clause
(e) of sub-clause (1) to Section 13, it is apparent that the primary burden to
bring home the charge of criminal misconduct thereunder would be
indubitably on the prosecution to establish beyond reasonable doubt that the
public servant either himself or through anyone else had at any time during
the period of his office been in possession of pecuniary resources or property
disproportionate to his known sources of income and it is only on the
discharge of such burden by the prosecution, if he fails to satisfactorily
account for the same, he would be in law held guilty of such offence. In other
words, in case the prosecution fails to prove that the public servant either by
himself or through anyone else had at any time during the period of his office
been in possession of pecuniary resources or property disproportionate to his
known sources of income, he would not be required in law to offer any
explanation to satisfactorily account therefor. A public servant facing such
charge, cannot be comprehended to furnish any explanation in absence of the
proof of the allegation of being in possession by himself or through someone
else, pecuniary resources or property disproportionate to his known sources
of income. As has been held by this Court amongst others in State of
Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede1, even in a case
when the burden is on the accused, the prosecution must first prove the
foundational facts. Incidentally, this decision was rendered in a case
involving a charge under Sections 7, 13 and 20 of the Act”.
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89. All the above said decisions relied upon by
the Learned Counsel for the accused are
though not relevant for the present case on
hand, the principles laid down and the
observations made by the Hon’ble Apex Court
and the guidelines issued are very much
relevant to adjudicate a case of this nature.
90. It is settled law that one of the ingredients
of offence under Sec.13(1)(e) is known source
of income. For the purpose of proving the
offence on the one hand, known sources of
income must be ascertained vis-a-vis the
possession of property or resources which were
disproportionate to the known sources of
income of public servant and the inability of
the public servant to account for it, on the
other. Possession of assets disproportionate to
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income has to be proved by prosecution and
such possession of pecuniary resources or
property disproportionate to his known sources
of income may be of his or anyone on his
behalf as the case may be. Further, such
public servant would be held to be guilty of
such offence of criminal misconduct, if he
cannot satisfactorily account for such
disproportionate pecuniary resources or
property.
91. From the design and purport of Clause(e)
of Sub-Clause (1) to Sec.13, it is apparent that
primary burden to bring home charge of
criminal misconduct there under would be
indubitably on prosecution to establish beyond
reasonable doubt that public servant either
himself or through anyone else had at any time
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during period of his office be in possession of
pecuniary resources or property
disproportionate to his known sources of
income and it is only on discharge of such
burden by prosecution, if he fails to
satisfactorily account for same, he would be in
law held guilty of such offence. In other words,
if the prosecution fails to prove these facts the
accused would not be required in law to offer
any explanation to satisfactorily account
thereof. The Hon’ble Apex Court in the
decision reported in (2010)9 SCC 189 (Babu
Vs. State of Kerala) held that every accused is
presumed to be innocent unless the guilt is
proved. The presumption of innocence is a
human right. The burden of proof is always lies
on the prosecution.
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92. Further, the Hon’ble Apex Court in the
decision reported in (1999) SCC Criminal 1133
(P.Nammallal Vs. State) held that “the two
postulates must combine together for
crystallization into the offence viz. Possession of
the property or resources disproportionate to
known sources of income of the public servant
and the inability of the public servant to account
for it/them. Burden of proof regarding firstly, is
on the prosecution. Whereas the onus is on the
public servant to prove the secondly.”
93. Hence, by taking into consideration the
aforesaid settled principles of law and the
available oral and documentary evidence on
record, this Court comes to the conclusion that
the prosecution in this case has miserably
failed to prove the allegations levelled against
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the accused beyond reasonable doubt. As
mentioned above, on appreciation of evidence
and on recalculation of assets, expenditure and
income, this Court came to the conclusion that
the income of the accused is more than the
assets and expenditure during the check
period and hence, no case of disproportionate
asset is made out as alleged by the
prosecution. Hence, taking into consideration
all these aspects, the Court holds that the
prosecution has failed to prove the allegations
levelled against the accused that he possessed
the assets disproportionate to his known
sources of income, and accordingly, the Court
proceed to answer Point No.2 in the negative.
94. POINT NO.3:- In view of the aforesaid
findings on point Nos.1 and 2, the Court
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proceed to pass the following:
ORDER
Acting under Sec.235 (1) of the
Cr.P.C., the accused is hereby
acquitted of the offence punishable
under Secs.13(1)(e) r/w Sec.13(2) of
the Prevention of Corruption
Act,1988.
The bail bond and surety bond
of the accused shall stand
cancelled.
(Dictated to the judgment-writer, transcript thereof
and then corrected, signed and pronounced by me
in the open Court on this the 25th DAY OF
JANUARY 2025).
(PRAKASH NAYAK),
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & LOKAYUKTHA SPECIAL JUDGE,
BENGALURU CITY.
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ANNEXURE
LIST OF WITNESSES EXAMINED FOR
PROSECUTION:
PW.1 N.G.Shivashankar PW.2 Dr.N.Shivashankar PW.3 B.V.Nagaraj PW.4 R.Manjunath PW.5 T.R.Vedamurthy PW.6 T.N.Chitrasena PW.7 H.P.Puttaswamy PW.8 S.V.Suryaprakash PW.9 M.S.Srinivas PW.10 D.Shivaji Rao PW.11 Rajesh Kotian LIST OF DOCUMENTS MARKED FOR PROSECUTION: Ex.P.1 Source Report-PW.1-18.01.2023
Ex.P.1(a) &(b) Sign of PW.1 -18.01.2023
Sign of PW.7- PW.7-23.06.2023Ex.P.2 Sanction Order-PW.2-02.02.2023
Ex.P.2(a) Sign of PW.2 -PW.2-02.02.2023Ex.P.3 True copy of KIADB proceedings
extract – PW.2, 02.02.2023Ex.P.4 Search Warrant for House
[Platinum city House]
-PW.3-02.02.2023
Ex.P.4(a) Sign of PW.3-PW.3-02.02.2023
138
Spl.C.C. No. 1199/2019Ex.P.5 House Search [Platinum city]
Mahazar -PW.3-02.02.2023
Ex.P.5(a) Sign of PW.3
Ex.P.5(b) Sign of PW.7 PW.7-23.06.2023
Ex.P.5(c) Sign of Konjalagari PW.7-23.06.2023
Ex.P.5(d) Sign of Appraiser Suresh Kumar
Ex.P.5(e) Sign of AGO PW.7-23.06.2023
Ex.P.5(f) Sign of WPC PushpaEx.P.6 Chartered account office search
Mahazar
Ex.P.6(a) Sign of PW.3Ex.P.7 to Original documents seized at AGO
Ex.P.120 House entire file 5 [all in file5]Ex.P.121 to Seized documents[originals] at AGO
Ex.P.314 House in file No.6 [all in file 6]Ex.P.315 P.No.29/A, Kattihalli Property
Valuation report
Ex.P.315(a) sign of PW.4Ex.P.316 Horticulture income report dated
06.12.2014.
Ex.P.316(a) Sign of PW.5
Ex.P.317 Horticulture income report dated
13.01.2015
Ex.P.317(a) Sign. of PW.5
Ex.P.318 Agricultural income report with
enclosures
Ex.P.319 Agricultural income report with
enclosures
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Ex.P.320 S.P.Authorization letter to PW.7
Ex.P.321 FIR
Ex.P.321(a) Sign of PW.7
Ex.P.322 Requisitions for deputation of
officials to search
Ex.P.322(a) to Signs of PW.7
Ex.P.322(c)
Ex.P.323 Search Warrant in the name of
Puvayya
Ex.P.324 Search Warrant in the name of
Narasimha Murthy
Ex.P.325 Panchaname of Mallenahalli Village
– file 7
Ex.P.326 Original Panchanama of Hemavati
Gas Agency- file 7
Ex.P.327 Hemavati Gas Agency Brouchure –
file 7
Ex.P.328 Form No.C related to Hemavati Gas
Agency- file 7
Ex.P.329 Hemavati Gas Agency Warehouse
Blue Print – file 7
Ex.P.330 Original Distributor Deed dated
30.01.2002- file 7
Ex.P.331 Original Agreement dated 02.04.2000
of Hemavathi Gas Agency – file 7
Ex.P.332 Original Rent Agreement dated
14.03.2012- file 7
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Ex.P.333 Original Trade License- file 7
Ex.P.334 Original receipt of BSNL Hassan
Telecom District- file 7
Ex.P.335 Two telephone bills given by BSNL-
file 7
Ex.P.336 Two telephone bills given by BSNL-
file 7
Ex.P.337 Updated Original Agreement dated
17.01.2012- file 7
Ex.P.338 Original letter written to Hemavati
Agency, KIADB dated 30.11.2009-
file 7
Ex.P.339 BSNL Original receipt and bill- file 7
Ex.P.340 BSNL Original receipt and bill- file 7
Ex.P.341 BSNL Original receipt and bill- file 7
Ex.P.342 Original receipt issued by Vodaphone
Ex.P.343 List of assets belonging to the
accused received from KIADB
Ex.P.344 Details relating to Platinum City
Apartment constructed by MD Sharif
Construction
Ex.P.345 Plots allotment details of Employees
Housing Area given by Secretary
KIADB
Ex.P.346 Face card information and
documents received from Mysuru
North Sub-Registrar’s office
Ex.P.347 Face card information and
documents received from Sub-
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Registrar’s office, Peenya, Bengaluru
Ex.P.348 Face card information and
documents received from Sub-
Registrar’s office, Nelamangala,
Bengaluru
Ex.P.349 Information given by the Secretary,
Tharalabalu Welfare Association.
Ex.P.350 Documents & Information received
from Sub-Registrar’s Office, Tarikere.
Ex.P.351 Details of Sites and Shares received
from the Secretary, Kempegowda
House Building Co-operative Society,
Bengaluru.
Ex.P.352 Information & documents received
from Sub-Registrar’s office, Hassan
Ex.P.353 Information received from KIADB
relating to China Tour of AGO
Ex.P.354 Letter of information from
Corporation Bank regarding SB
Account
Ex.P.355 Information received from Income
Tax Department, Bengaluru
Ex.P.356 Information received from Income
Tax Department, Hassan
Ex.P.357 Information received from LIC,
Hassan
Ex.P.358 Information received from Country
Club, Marathalli, Bengaluru
regarding membership and payment
made by AGO
Ex.P.359 Information received from Citizen
Cultural Association, Rajajinagar
regarding membership and payment
made by AGO
Ex.P.360 Information received from Royal
142
Spl.C.C. No. 1199/2019
Sports & Cultural Association,
Basaveshwaranagar, Bengaluru
regarding membership and payment
made by AGO
Ex.P.361 Information received from
Rajajinagar Housing Co-operative
Society, Rajajinagar, Bengaluru
regarding membership and payment
made by AGO
Ex.P.362 Information received from Karnataka
Blind Welfare Association regarding
donation made by AGO
Ex.P.363 Information received from Iskcon
regarding donation made by AGO
Ex.P.364 Information received from
Panchayath Development Officer,
Koorgalli Grama Panchayath
regarding site
Ex.P.365 Information received from Divisional
Engineer, BSNL regarding Telephone
bill
Ex.P.366 AGO’s Family Expenditure report
Ex.P.366(a) Sign.of PW.8
Ex.P.367 Authorization letter of SP to PW.9
Ex.P.367(a) Sign.of PW.9
Ex.P.368 Letter from New Indian Assurance
Ex.P.368(a) Sign.of PW.9
Ex.P.369 Statement of Vehicle Loan issued by
Corporation Bank
Ex.P.369(a) Sign.of PW.9
Ex.P.370 Details of two policies issued from
Reliance Life Insurance, M.G.Road,
Bengaluru
Ex.P.370(a) Sign.of PW.9
Ex.P.371 Details regarding fixed deposit given
143
Spl.C.C. No. 1199/2019
by Corporation Bank, Hassan
Ex.P.372 Information regard Gas supply
No.632941 given by
Sri.Venkateshwara Enterprises,
Bahubali Nagar, Bengaluru
Ex.P.373 Information received from Bank of
India, Hassan regarding availment of
loan by Hemavathi Gas Agency
Ex.P.374 Documents relating to Site Nos.25 to
27 of Vinobhanagar, Shimoga
Ex.P.375 Letter received from Sub-Registrar,
Shimoga
Ex.P.376 Documents relating to lands stands
in the name of AGO and his family,
received from Tahsildar Office,
Tarikere, Chickmagalur Dist.
Ex.P.377 Letter in respect of policy
No.629560068 received from LIC,
Shimoga
Ex.P.378 Letter received from LIC, Bengaluru
regarding 8 LIC policies
Ex.P.379 Letter with documents regarding 5
policies stands in respect of AGO and
his wife issued by Bajaj Alliance Co.,
Bengaluru
Ex.P.380 Letter with documents in respect of
vehicle No.KA 19 R 2722 regarding
expenditure, purchase value, etc.
Ex.P.381 Letter with documents in respect of
vehicles No.KA 13 A 7419 & KA 13 A
9979 regarding availment of loan,
purchase date,value, etc. from Arvind
Motor Pvt.Ltd.
Ex.P.382 Letter received from Passport office.
Ex.P.383 Letter issued by Asst.Revenue
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Spl.C.C. No. 1199/2019
Officer, Lakshmi Devi Nagar, BBMP,
in respect of payment of tax for
Apartment No.4, Platinum City
Ex.P.384 Letter issued by Asst.Revenue
Officer, Shettihalli, BBMP with
regard to expenditure incurred for
Site No.130, Chickasandra village
Ex.P.385 Letter issued by Asst.Revenue
Officer, Hegganahalli, BBMP with
regard to expenditure incurred for
Site No.242, Laggere village
Ex.P.386 Letter with documents issued by
KIADB in respect of service
particulars of AGO
Ex.P.387 Letter with documents issued by
RTO, Hassan in respect of Tata
Indigo Car No.KA13 Z 5 regarding
date of purchase, availment of loan,
etc.
Ex.P.388 Letter issued by Chief General
Manager, MSIL regarding chit fund
accounts of AGO and his wife
Ex.P.389 Letter issued by LIC Udupi Branch in
respect of 4 LIC Policies stands in the
name of AGO and his wife
Ex.P.390 Letter with documents issued by
Margadharshi Chit Fund regarding
chit fund accounts of AGO and his
wife
Ex.P.391 Expenditure statement like
maintenance, electricity, water
connection, etc. in respect of Flat
No.D10 stands in the name of wife of
AGO, issued by Platinum City
Apartment
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Ex.P.392 Statements and documents given by
Smt.Ambika D.S.
Ex.P.393 Salary particulars and documents
relating to AGO, issued by Secretary,
KIADB
Ex.P.394 Statement and documents given by
Smt.Yashoda
Ex.P.395 Letter issued by Sub-Registrar,
Peenya in respect of Flat No.10,
Platinum City Apartment regarding
stamp duty and registration fees paid
Ex.P.396 Letter with documents issued by
Chief Controller of Explosives,
Mangalore in respect of Hemavathi
Gas Agencies
Ex.P.397 Letter with annexures given by AGO
to Investigating Officer
Ex.P.398 Annexure statement No.1
Ex.P.399 Statement No.2
Ex.P.400 Statement No.3
Ex.P.401 Statement No.4
Ex.P.402 Statement No.5
Ex.P.403 Statement No. 6,7a,7b & 8a
Ex.P.404 Statement No.8b, 8c, 9a, 9b, 9c, 10,
11a & 11b
Ex.P.405 Statement No.12a
Ex.P.406 Statement No.12b & 13a
Ex.P.407 Statement No.13b & 14a
Ex.P.408 Statement No.14b & 14c
Ex.P.409 Statement No.14d
Ex.P.410 Statement No.15a & 15b
Ex.P.411 Statement No.16a
Ex.P.412 Statement No.16b, 17 to 20
Ex.P.413 Statement No.21
Ex.P.414 Statement No.22 & 23
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Ex.P.415 Authorization letter given by SP-II,
Lokayuktha
Ex.P.415(a) Signature of PW.10
Ex.P.416 Documents relating to Fuel &
maintenance expenses incurred in
respect of Maruthi SX4 No.KA 04 ME
5766
Ex.P.417 Details regarding Membership Fee of
Mahalakshmi Layout Residents Form
Ex.P.418 Letter Dtd.03-09-2021 written to
Bank of India
Ex.P.418(a) Signature of PW.11
Ex.P.419 Letter Dtd.03-09-2021 written to
Bank of India, Hassan
Ex.P.419(a) Signature of PW.11
Ex.P.420 Details of bank account in respect of
PC Ashok given by Union Bank of
India
Ex.P.420(a) Signature of PW. 11
Ex.P.421 Details of bank account in respect of
Omkaramurthy given by Union Bank
of India
Ex.P.421(a) Signature of PW. 11
Ex.P.422 Jnapana Pathra given by ADGP to
PW.11
Ex.P.422(a) Signature of PW. 11
Ex.P.423 Partnership Deed of Hemavathi Gas
Agencies
Ex.P.424 Jnapana Pathra dtd.16-07-2019
given by ADGP
LIST OF MATERIAL OBJECTS MARKED FOR
PROSECUTION:
NIL
147
Spl.C.C. No. 1199/2019LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 H.V.Omkarmurthy
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 Letter dtd.12-08-2022 of
Margadharshi Chit Fund
Ex.D.2 Ledger given by Margadharshi Chit
Fund
Ex.D.2(a) Portion marked in Ex.D.2
dtd.29.02.2012(PRAKASH NAYAK),
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & LOKAYUKTHA SPECIAL JUDGE,
BENGALURU CITY.