TMI Blog2012 (11) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... searches were conducted on the properties of the appellant and it was found that the appellant was possessing properties disproportionate to known-sources of his income. As such a case was registered against him under Sections 13(1)(e) and 13(2) of the Act as Crime No. 207/2002. 2. For the purpose of computation of income, the period from 01.01.1996 to 20.09.2002 was considered as the check period. According to the appellant, prior to his appointment as SDM, he was posted as teacher from 21.08.1979 to 01.07.1994. 3. Respondent-Lokayuktha computed the income of the appellant in the check period as ₹ 11,10,055/-. The details of the computation is as under:- Income: 4. The expenses incurred by the appellant in the check period were assessed to the tune of ₹ 26,80,660/- The details of the expenditure were as under:- Expenditure: 5. Thus, as per the prosecution property possessed by the appellant to the tune of ₹ 15,70,605/- in the check period was disproportionate to his known-sources of income. Based upon the aforesaid calculation, a challan was filed against the appellant under Section 13(1)(e) and 13(2) of the Act. Charges were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong in not appreciating the explanation furnished by the appellant and the evidence led by him to show that the gift given by the mother-in-law of the appellant to the daughter of appellant amounting to ₹ 50,000/-, gift given by the brother-in-law to the daughter of the appellant amounting to ₹ 20,000/-, gift given by the father-in-law to the wife of the appellant through demand drafts amounting to ₹ 3,80,000/-, loan from Aawas Finance amounting to ₹ 1,00,000/-, loan for purchase of scooter amounting to ₹ 35,000/-, loan from Komal Chand Gehlot amounting to ₹ 1,00,000/-, income of wife amounting to ₹ 1,36,360/-, agriculture income amounting to ₹ 22,350/-, Interest from FDRs amounting to ₹ 6,000/- and various other incomes have not been accounted for by the officers of SPE while calculating the income of the appellant. 10. It is also the case of the appellant that the expenditure incurred by the appellant as assessed by the Officer of the SPE is on higher side. The appellant had only spent 30% of his salary towards house hold during the check period and prior to the check period. It has been submitted that if the calculation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that his income prior to the 1979 when he was working as teacher also should have been taken into consideration which income according to the appellant was to the tune of ₹ 4,10,591/- and after deducting 40% therefrom the remaining amount should have been considered as income available in the hands of the appellant which will come to the tune of ₹ 2,46,121/-. 16. It is also submitted that in addition to the aforesaid discrepancies provision of 10% difference should have also been made, even if the expenses would have been found more than the income. 17. Now coming to the specific items not taken into consideration towards the income of the appellant, it has been submitted that the gift received by his wife from her father to the tune of ₹ 3,80,000/-, was made by way of demand draft enclosed with the document marked as Ex. P-105, a letter written by the Branch Manager of the Central Bank of India to the Investigating Officer of the present case PW-23 Satish Mishra, to prove that the remission was by way of bank draft much prior to check period. The aforesaid witness in his deposition also exhibited a letter dated December 13, 2004 written to the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that the appellant has also intimated to his department vide letter dated 30.07.2001 which is mentioned in Ex. P-102. It is also submitted that during the course of investigation also through letter Ex. P-103, the appellant has intimated to the Investigating Officer and also given the copy of the income tax returns of his wife in which there was a mention of receipt of amount of ₹ 3,80,000/-. 20. It is submitted that the income tax return being the public document does not require formal proof. It is submitted that much prior to the date of incident, the appellant had given intimation to his department without any anticipation that subsequently a raid is to the conducted in the house of the appellant. Infact even the wife of the appellant had given information about the gift given by her father to her department. DW6 in his deposition has also deposed in respect of the same and nothing fruitful has come during his cross examination on behalf of the prosecution. It is submitted that the appellant given all plausible explanation in the evidence before the trial Court in respect of receipt of amount of ₹ 3,80,000/-. It is submitted that the amount of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide letter which has been marked as Ex. D58. It is submitted that from perusal of Ex. D58, D62 and D63, it is clear that during the year 2000-01, the wife of the appellant received an amount of ₹ 65,860/- and during the year 2001-02, the wife of the appellant received an amount of ₹ 70,500/-. It is submitted that the wife of the appellant has also disclosed this income in her income tax returns which have been submitted in respective years before the Income Tax Authority. It is submitted that the copies of the income tax returns have also been supplied to the I.O. during the course of investigation through letter dated 24.12.2004 which has been marked as Ex. P103. It is submitted that the assessment year 2001-02, the wife of the appellant has submitted her income tax return on 31.07.2001 in Ward No. 1 (4) Income Tax Officer, Indore and for the assessment year 2002-03, the wife of the appellant has submitted that her income tax return on 30.07.2002 in Ward No. 1(4), Income Tax office, Indore. A copy of the income tax return for the assessment year 2002-03 has been filed alongwith Annexure A/2. A perusal of this shows that income during the period in the assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned trial Court by overlooking the evidence and the material placed on record, has not taken the income of ₹ 1,36,360/- and the reasoning given by the learned Court below is based on presumptions and surmises which is bad in law. The appellant submits that he has given all the satisfactory and plausible explanation in respect of income of his wife and therefore, the amount of ₹ 1,36,360/- is required to be added in income part of the appellant. 23. It is submitted that the learned trial Court has even not discussed the defence of the appellant in respect of his income through agriculture which is to the tune of ₹ 22,350/-. It is submitted that PW-13 in para 1 of his deposition has proved the document pertaining to the service details, the salary of the appellant, immovable property return and the income tax return of the appellant for the assessment year 2002-03. It is submitted that the aforesaid document has been exhibited as Ex. P-46, P-47 and P-48. It is submitted that from the perusal of Ex. P-46, it is clear that the income tax return of the appellant for the assessment year 2002-03 was also given to the IO and the same has been exhibited as Ex. P-48. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /97 in which the trial court was directed that the documents made available by the accused during investigation be produced and they be taken into consideration by the court while framing charges. The said order became final, it having not been challenged further. In this situation the parties and the trial court were bound and governed by the said direction. Since the trial court did not follow the said direction, the High Court having considered all the material including the documents produced by the prosecution itself, which were collected during the course of investigation, and on being prima facie satisfied taking the documents on their face value held that no offence was made out and as such no charge could be framed against the respondent. In this view, the High Court set aside the order of the trial court and passed the order discharging the respondent. The High Court in the order under appeal has elaborately considered the documents collected during the course of investigation and produced by the prosecution itself which were available at the time of framing charges. It may be added that most of the documents relate to the income-tax returns or income-tax assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family of the appellant should also be considered as the income of the appellant or not in the check period. 27. Having examined the record, we feel that the wife of the appellant having already informed his employer at the relevant time which was her statutory requirement having filed Income Tax Return cannot be disbelieved that those amounts were available in the hand of the appellant for expenditure. So far as sum of ₹ 3,80,000/- and ₹ 1,36,360 are concerned, we hold that sum of ₹ 5,16,360/- was very much available with the appellant during the check period and are required to be added to his income. 28. The judgment delivered in the case of DSP Chennai Vs. K. Inbasagaran (2006) 1 SCC 420 also require mention. Relevant paragraphs of the judgment are 15, 16 and 17, which are reproduced hereunder:- 15. We have heard both the learned counsel at length. The basic question that emerges in the present case is whether the accused could be saddled with all the unaccounted money at his hand or not. It is the admitted position that both the husband and wife were living together. The wife was running three concerns though those concerns were running in loss. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution. In C.S.D. Swamy v. State 1 this Court has taken the view that in Section 5(3) of the Prevention of Corruption Act, 1947 a complete departure has been made from criminal jurisprudence, still the initial burden lies on the prosecution and in that context it has been observed as follows: (SCR p. 466) ... Section 5(3) of the Act, does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances -- a rule which is a complete departure from the established principles of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him. 16. Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time, it has been held in State of M.P. v. Awadh Kishore Gupta that the accused has to account satisfactorily for the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Department has assessed it in her hand, then, in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband as the case may be, it cannot be fastened on the husband or the head of the family. It is true that the prosecution in the present case has tried its best to lead evidence to show that all these monies belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the income tax returns and she has accepted the whole responsibility, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of the wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth ₹ 55,732.25. 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 ten per cent of the total income of ₹ 1,27,715.43/- 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 Sub-section (3) of Section 5. We are of the view that, on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption. 31. Giving details about the proposed income of ₹ 2,08,464/- to be added towards salary and allowance received by the appellant posted as teacher from August, 1979 to June 1994, it has been submitted that the prosecution examined PW4 who exhibited the documents Ex. P-10 to P-15 in which the details of the salary of the appellant for the period 1979 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December, 1995, as per the trial Court, the appellant got only ₹ 53,523/-. It is submitted that the amount of salary mentioned in the document marked as Ex. P58 is the salary of the appellant for earlier month because the salary of a month is payable in next month. It is submitted that from the perusal of the document exhibited as Ex. P22, it is clear that the salary only upto the month of November, 1994 has been taken into account and the salary for the month of December, 1994 which was paid in January, 1995 is mentioned in Ex. P58. The learned trial court has taken only 11 months salary. It is submitted that the salary for the month of December, 1995 was paid to the appellant in the month of January, 1996 but the same has neither been taken into account as salary prior to the check period nor salary during the check period. In view of the aforesaid, the amount of ₹ 4,832/- is required to be added in the salary of the appellant of July, 1994 to December, 1995 because the salary pertaining to prior to check period has been received by the appellant during the check period. In view of the aforesaid, the actual salary comes to the tune of ₹ 82,773/-. It is submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the Court below came to conclusion that the total expenditure of the appellant during the check period was to the tune of ₹ 24,20,300/-. It is submitted that the learned trial Court has completely overlooked the evidence came on record so far as it relates to house hold expenditure, value of inventory and some investments made prior to the check period is concerned. It is submitted that the learned trial Court in para-42 of the impugned judgment has held that the appellant was spending 60% of his salary towards house hold. Learned trial Court has discarded the evidence of DW6, who in his deposition has stated that all the granaries were being supplied by him to the appellant's family. It is submitted that there is no basis for taking 60% of the salary towards house hold and the said fact was also accepted by PW23 in his deposition. It is submitted that the prosecution has completely failed to prove in the present case that the living standard of the appellant and his family members was lavishing. On the contrary, the appellant has proved through evidence of DW6 that he was getting all the grains from his in-laws. It is important to mention here at this juncture that DW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse hold should have been taken 30% of the total salary. The appellant respectfully submits that he has spend only 30% of his salary towards house hold and therefore, the actual amount towards house hold expenditure comes to the tune of ₹ 1,96,490/-. 36. On the basis of the chart placed on record alongwith the written submissions, it is submitted that the actual value of the inventories only comes to ₹ 1,66,458/- only. In this regard reliance has also been made to the statement of DW1, DW4, DW5, DW-7 and DW-9. Some other particulars have also been mentioned while calculating expenditure. Details thereof are given in para 23 of the written submissions. The appellant submitted that with respect to the expenditure taken into consideration by the trial Judge, the expenditure should have been calculated in the following manner:- 37. A revised chart was also submitted by the appellant to reflect as to what income ought to have been taken for the purpose of calculating his total income in the relevant period. It is submitted that in this manner the income of the appellant as available to him during the check period for the purpose of expenditure would come to ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing that it was acquired from the known sources of income of the assessee. Reference has been made to a judgment delivered by the learned Single Judge in the case of Permanand Kedar Nath Jha Vs. State of Madhya Pradesh 2000(1) MPLJ 360. 44. However, this judgment is of no consequence in the light of the judgment of Hon'ble Supreme Court as discussed above. Another judgment cited is in the case of N. Ramakrishnaiah (Dead) through L.Rs. Vs. State of Andhra Pradesh 2009 CRLJ 1767. Even this judgment is not applicable because the gift received by the wife from her father that is also prior to the relevant period. 45. Having gone through the judgment of the trial Court we certainly find that each and every item has been taken into consideration by the trial Judge and even discussed in detail but the plea taken by the appellant that the available amount for expenditure out of the income should have been taken as 60% instead of 40% has not been considered. In the light of the judgment which we have referred to above, where a stand has been taken by the Lokayukta itself that 50% is the correct amount of expenditure which should have been considered for the purpose of calculatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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