TMI Blog2023 (3) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 1992 (7) TMI 333 - SUPREME COURT] it was held that on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240 from the disproportionate assets of Rs.2,37,842. In the present case, the documents which have been relied upon by the respondents cannot form the basis of quashing the FIR. The value and weight to be ascribed to the documents of two Judge Benches of this Court in order to support their submissions. There is no clash between the decisions in KEDARI LAL VERSUS STATE OF M.P. AND ORS [ 2015 (3) TMI 1426 - SUPREME COURT] and STATE OF KARNATAKA VERSUS SELVI J. JAYALALITHA AND ORS. AND K. ANBAZHAGAN VERSUS SELVI J. JAYALALITHA AND ORS. ETC. AND INDO DOHA CHEMICALS PHARMACEUTICALS AND ORS. ETC [ 2017 (2) TMI 926 - SUPREME COURT] for two reasons: (I) the judgment in J. Jayalalitha notes that a document like the Income Tax Return, by itself, would not be definitive evidence in providing if the source of one s income was lawful since the Income Tax Department is not responsible for investigating that, while the facts in the judgment in Kedari Lal were such that the source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during inquiry that the petitioner by misusing his official position and by adopting illegal and corrupt means amassed assets like several pieces of land and flats at Patna as well as investment in so many financial institutions including banks, disproportionate to the known sources of his income in his name and in the name of his wife. Further during the check period the expected income of the petitioner from salary, bank loan and other sources has been calculated to the tune of Rs.90,32,264/-, out of which his expenditure as per the set principle comes to Rs.26,66,000/- and in this way savings during the check period comes to Rs.63,66,264/-, but he has been found in possession of movable and immovable properties worth Rs. 1,10,87,939/- As such the accused has been found in possession of properties worth Rs.47,21,675/- disproportionate to his known sources of income. Learned counsel for the petitioner submits that the petitioner is quite innocent and has falsely been implicated in this instant case and has clean antecedent. Learned Counsel for petitioner submits that neither proper inquiry was conducted by informant nor by proper authority to trace out the actual income and exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner took total loan of Rs.17,53,000/- from different banks for the purpose of construction of house, purchase of flat and vehicle and still Rs.10,32,264/- loan amount is outstanding against him. Lastly he submitted that the total saving of the petitioner and his wife during the check period is Rs.1,96,61,823/- which is much more than total cost of movable and immovable property that is Rs.1,08,75,750/-. The department has also requested the Vigilance to give the detail as to how he calculated the total income of the petitioner as Rs.80 lacs on the basis of salary and other as well as other income but till date they have not submitted any such detail. So it has been prayed to admit the petitioner on anticipatory bail. Learned APP for the State as well as Learned Spl. PP for the Vigilance vehemently oppose the prayer for anticipatory bail by submitting that petitioner has misused his official position and by adopting illegal and corrupt means acquired property disproportionate to the known sources of his income. Learned Spl. P.P. for the Vigilance submits that Inspector of Police, Vigilance Investigation Bureau has been legally authorized for conducting enquiry/investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehension of tampering with evidence and affecting the on-going investigation as further investigation is still going on. Learned counsel for the Vigilance relied upon the judgment of the Apex Court reported in 2021 (4) PLJR 197 Central Bureau of Investigation vs. Thommandru Hannah Vijayalakshmi (SC) 197. In para-44 of the said judgment, it is observed that the respondents have filed before us their Income Tax Returns, statements under the CCS Rules, affidavits under the RP Act and all other document filed before the Telangana High Court as well. Based on these documents, the respondents have urged that the calculation of their income, expenditure and value of assets during the check period in the FIR is incorrect. In support of the proposition that these documents can be relied upon, they have pointed out the following observations in the judgment in Kedari Lal (supra): In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of quashing of an FIR. Learned counsel for the Vigilance further relied upon another judgment reported in 2022 (4) PLJR 4 State through Deputy Superintendent of Police vs. R. Soundirarasu etc. Para- 41 of the said judgment states that while the expression known sources of income refers to the sources known to the prosecution, the expression for which the public servant cannot satisfactorily account refers to the onus or burden on the accused to satisfactorily explain and account for the assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evident Act applies. The explanation to Section 13(1)(e) is a procedural Section which seeks to define the expression known sources of income as sources known to the prosecution and not to accused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and roving investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary, he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr. A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disporportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet. Para-46 of the said judgment states that the second con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated alongwith other materials on record. Noticeably, none of the respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after the charge-sheet had been submitted. Significantly, there is a charge of conspiracy and abetment against the accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the accused persons or are of any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act. In Vishwanath Chaturvedi (3) v. Union of India [Vishwanath Chaturvedi (3) v. Union of India, (2007) 4 SCC 380 : (2007)2 SCC (Cri) 302], a writ petition was filed under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the respondents cannot form the basis of quashing the FIR. The value and weight to be ascribed to the documents of two Judge Benches of this Court in order to support their submissions. There is no clash between the decisions in Kedari Lal (supra) and J. Jayalalitha (supra) for two reasons: (I) the judgment in J. Jayalalitha (supra) notes that a document like the Income Tax Return, by itself, would not be definitive evidence in providing if the source of one s income was lawful since the Income Tax Department is not responsible for investigating that, while the facts in the judgment in Kedari Lal (supra) were such that the source of income was not in question at all and hence, the Income Tax Returns were relied upon conclusively; and (ii) in any case, the decision in Kedari Lal (supra) was delivered while considering a criminal appeal challenging a conviction under the PC Act, while the present matter is at the stage of quashing of an FIR. 61. In the present case, the appellant is challenging the very-source of the respondents income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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