TMI Blog2006 (8) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... is a public servant held office as a State Minister between 13.5.1996 and 2001. A.2 is his wife. A.3 is his mother-in-law. A.4 and A.5 are his friends. A.3 to A.5 are trustees of one Siga Educational Trust. A final report was filed by Deputy Superintendent of Police, V AC, Cuddalore against the accused for offences under Sections 13(2) r/w 13(1)(e) of the Prevention of Corruption Act r/w. 109 IPC in Special Case No. 7 of 2003 on the file of the Chief Judicial Magistrate, Special Judge, Villupuram. The prosecution recorded statements of 228 witnesses and 318 documents are relied on and produced before the Court. The cheque period was fixed as 13.5.1996 to 31.3.2002. The allegation against two sons of A.1 and A.2 who were earlier implicated in the FIR have been dropped in the final report. However, final report was filed as against A.1 to A.5 treating the incomes of his wife, A.2, mother-in-law, A.3, and the Trustees of Siga Educational Trust A.3 to A.5 as that of the income of A.1. In the final report the incomes and earnings of A.2, A.3 and the Siga Educational Trust were included as that of the income of A.1. The following is the calculation made by the prosecution in the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n machinery, and secondly the scrutiny of the explanation that the public servant might offer in disclosing other source of legal income or in any other manner. Therefore, for an offence under Section 5(1)(e) of the Act the Investigating Officer has necessarily to satisfy himself that the concerned public servant has not satisfactorily accounted for the possession of pecuniary resources or property, found by the Investigating Officer disproportionate to his own source of income. It is thus obvious that the Investigating Officer should give an opportunity to the person investigated against to explain the disproportion found by him. 8. In Ananda Bezbaruah v. Union of India 1994 Cri.L.J. 12 the Gauhati High Court has held as follows: It is not mere acquisition of property that constitutes an offence, under the provisions of the Act but its failure to satisfactorily account for makes the possession offending. Thus where accused was charged with the offence of having resources and property disproportionate to his income and trial court failed to consider and evaluate the Income Tax return which clearly established that the property included in the assets of accused and shown to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that it is the failure to satisfactorily account for such possession of pecuniary resources or property which is disproportionate to the known sources of income that is objectionable. It is not merely acquisition that constitutes the offence. Under these circumstances, if one were to presume that the sanctioning authority had done the elementary evolution of the necessary ingredients of the charge under which he was sanctioning a prosecution, he ought to have recorded a finding that the appellant could not satisfactorily account for the assets in question. If the accused had never been asked to account, the conclusion was impossible. This, to my mind, was the fundamental error that has been committed in this case and it is principally on this ground that the sanction order in question will have to be struck down. While deciding criminal writ petn. No. 854 of 1991, this Court had occasion to deal with another aspect of the law with regard to the procedure that is required to be adopted in relation to an offence under Section 5(1)(e) of the Prevention of Corruption Act. Since the essence of the offence is that the accused could not account for the disproportionate assets o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to come forward and to object to the grant of sanction but one does not know the situation in which the accused is placed and the question as to whether such applications or representations made by him would at all receive proper consideration. I am basically concerned with an entirely different aspect of the matter, namely, the obligation or duty that is cast on the prosecuting authority. To my mind, as held in Criminal Writ Petn. No. 854 of 1991, the accused must be asked to account for at a stage prior to the registration of the offence. I have held that once the offence is registered, virtually a point of no return is reached. In that Criminal Writ Petition, where the Investigating Officer asked the accused to account for certain property long after the offence had been registered, a plea was taken up that the petitioner was already in the legal position of a person accused of a serious offence that, therefore, the protection under Article 20 of the Constitution would be available to him and, in any event, he could not and would not make any statement at that point of time as the same may be used against him. I have had occasion there to deal with the parallel proceedings re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be innocent unless proved guilty, and (iii) that the onus of the prosecution never shits. 11. In State of Andhra Pradesh v. J. Satyanarayana JT 2000 (10) SC 430, the Supreme Court has held as follows: Sections 5(1)(e), 5(2) - Conviction under - Disproportionate assets - Only 7% difference between the amount received and assets found - House property claimed to be of wife - Loan transactions and filing of tax return much before even registration of case - Also duly supported by loaners. Held that house property could not be included in the assets of accused and once, it is taken out, High Court was justified in recording acquittal. 12. In Dilawar Balu Kurane v. State of Maharashtra reported in 2002 SCC (Cri) 310, the Hon'ble Supreme Court held as follows: In exercising powers under Section 227 Cr.P.C., the settled position of law is that the Judge while considering the question of framing the charges under the said Section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerating a decent income and possessed of properties prior to the cut of period and doing independently business and her holdings cannot be tacked on to my holdings. The properties owned by her are her separate properties and I have nothing to do with the same. Hence the allegation that the properties of Tmt. Visalakshi is acquired by me is equally incorrect, false and motivated. You have stated that you have computed the statements on the basis of statements on the basis of statements of witnesses and scrutiny of documents and there is no reference with regard to the link expected to connect me with any crime. If the statements are made available I shall be able to explain. The methodology adopted by you to ascertain the income, expenses, the value of the holdings and the ultimate determination of the savings are all incorrect and arbitrary. It is a sheer guesswork. Indeed you have inflated the expenses and reduced the income to suite your own convenience. The clubbing of the income and expenses of my wife with my income and expenses is a wrong approach because she is an independent income tax assessee doing independent business. Furthermore you have arbitrarily witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o why A.2 to A.5 should be treated as benamies of A.1 or to hold that A.2 to A.5 have no independent source of income. 18. The assets which admittedly, do not belong to Accused 1 and owned by individuals having independent source of income which are assessed under the Income Tax Act, were added as the assets of Accused-1. Such a procedure adopted by the prosecution is not only unsustainable but also illegal. An independent and unbiased scrutiny of the entire documents furnished along with the final report would not make out any ground for framing of charge as against any of the accused persons. The methodology adopted by the prosecution to establish the disproportionate assets with reference to the known source of income is absolutely erroneous. The clubbing of the properties of other accused is absolutely erroneous. The accused cannot be asked to explain the source of income of others with reference to the properties standing in their names and which belong to them over which the accused has no claim or control. The accused 3,4 and 5 are not the owners of the properties owned by Siga Educational Trust. The trust is the absolute owner of the properties and the trustees can never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the documents meticulously and rightly came to the conclusion that the prosecution has failed to assess the total income of the individual accused in a fair manner. All the properties acquired b A.2 and A.3 in their individual capacity acquired out of their own income have been shown in the Income Tax Returns, which fact the prosecution also knows and also available in the records of the prosecution. The prosecution has no justification or reason to disregard those income tax returns to disallow such income while filing the final report. The documents now available on record also would clearly disprove the claim of benami transaction. 22. On a reading of the discussion in the discharge orders, passed by the learned Chief Judicial Magistrate, Villupuram, it is clear that the prosecution instead of establishing the link between the assets acquired by the accused an the individual income earned by A.1, have clubbed the income of A.2, A.3 and Siga Educational Trust which income are assessed to income tax even prior to the filing of the final report and there is no acceptable evidence to club all these incomes to be considered as income of A.1. 23. Learned Special Public Prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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