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The Prevention of Corruption Act, 1988
The Code Of Criminal Procedure, 1973
Section 13(2) in The Code Of Criminal Procedure, 1973
Section 27 in The Code Of Criminal Procedure, 1973
Section 13(2) in The Prevention of Corruption Act, 1988

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Madras High Court
K.G.Sundaram vs State Rep. By on 27 June, 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:27.06.2011

C O R A M

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Crl.A.No.862 of 1999

K.G.Sundaram ... Appellant

Vs.

State Rep. by

Inspector of Police

SPE/CBI/ACB/CHENNAI

D.R.C.No.44(A)/90) ... Respondent

Criminal Appeal filed under Sections 374, 382, 386 of Cr.P.C and Section 27 of the Prevention of Corruption Act, 1988 as against the judgment of conviction and sentence dated 05.10.1999 of the learned Principal Special Judge for CBI Cases, Chennai made in New C.C.No.88 of 1997, old C.C.No.111 of 1993 397 r/w.401 of Criminal Procedure Code

For Appellant :Mr.AR.L.Sundaresan, Sr. Advocate

for M/s.Lakshmi Priya Associates

For Respondent :Mr.N.Chandrasekaran

Special Public Prosecutor

for CBI cases

JUDGMENT

The sole accused in C.C.No.88 of 1997 on the file of the learned Principal Special Judge for CBI Cases, Chennai, who stood charged for an offence under Section 13(2) r/w.13(1)(e) of Prevention of Corruption Act, 1988, tried and found guilty as per the charge and sentenced by the trial Court in its judgment dated 05.10.1999 to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- with a default sentence of two months simple imprisonment, has come forward with the present appeal against the conviction as well as sentence.

2.The facts of the prosecution case, in brief, are as follows:

i) The appellant/accused joined the Indian Oil Corporation as an officer on 19.12.1964 and was promoted to the rank of Assistant Manager on 14.06.1969 and to the rank of Deputy Manager on 13.07.1983. From 13.07.1983 to 29.08.1990, he was functioning as Deputy Manager (Lubes), Indian Oil Corporation, Chennai. Haridasan Nair, Inspector of Police, SPE:CBI:ACB Madras received reliable information that the appellant/accused was possessing disproportionate wealth and on preliminary investigation, the appellant's/accused's income during the check period, namely the period from 13.07.1983 to 18.08.1990, was found to be Rs.9,24,000/-. The expenditure and the likely savings of the appellant/accused in the said period were estimated approximately at Rs.2,68,000/- and Rs.6,56,000/- respectively. The assets possessed by the appellant/accused was valued at Rs.13,80,200/- and hence it was found that he was in possession of assets disproportionate to his known sources of income to the tune of Rs.7,24,200/-. Information was also collected to the effect that the appellant/accused would not be in a position to satisfactorily account for the above said excess assets and hence, PW-17-Haridasan Nair prepared Ex.P125-First Information Report in the printed format and registered a case in Crime No.R.C.44(A)/90 on 28.08.1990 on the file of Delhi Special Police Establishment, ACB Madras Branch. After the registration of the case, the Superintendent of Police, SPE:CBI:ACB Madras authorized Haridasan Nair, Inspector of Police, CBI, ACB Madras to investigate the same by issuing proceedings dated 28.08.1990 under Ex.P129. PW-17 Haridasan Nair obtained search warrants from the Chief Metropolitan Magistrate, Chennai and conducted search at the residence of the appellant/accused in Chennai and prepared Ex.P4 search list. In the search made in the residence of the appellant/accused, a cash of Rs.1,71,000/- was also seized. He also caused searches to be made in four other places. Ex.P130 is the search list prepared by PW17-Mr.Ramanaghulu, who conducted the search in the second place. Though searches were made in the remaining three places also, no property and no document was seized from those places. For the searches Ex.P5 search inventory was also prepared by PW17. ii) On 08.01.1991, PW2-G.Manian, who was working as Chief Town Planning Officer in Madurai Corporation, handed over the documents relating to the building belonging to the appellant/accused within the corporation limits of Madurai, in respect of which appellant/accused had paid a sum of Rs.520 towards licence fee and Rs.1,270/- towards road laying fees. During the course of investigation, PW3 furnished information regarding the rent paid by the appellant/accused for the residential portion at Deenadayalu Street, Thyagaraya Nagar, Chennai in which the appellant was residing as a tenant. Ex.P2-Electricity consumption card containing the particulars of electricity consumed for the above said building was produced by PW4-Munusamy, the Junior Engineer, Tamil Nadu Electricity Board, T.Nagar, Chennai along with the covering letter Ex.P3. iii) PW-17, the Investigating Officer examined PW5-Subbiah, then the Joint Sub-Registrar No.IV, Madurai on 07.01.1991 and PW-5 furnished the information that the appellant K.G.Sundaram had purchased a property in S.No.43/1B from one Sambandam at Ponmeni village under a document registered as Document No.5182/83 for a sum of Rs.21,112/-, for which a stamp duty of Rs.2,751.60 and a registration fee of Rs.215/- were paid. The Investigating Officer also prepared Ex.P5-search list, which was attested by PW6 and the above said Rajamanikkam. PW-7-P.V.Viswanathan was the Deputy Manager of Indian Oil Corporation during the period 1991-1992. He furnished the salary particulars of the appellant/accused under Ex.P54 and the particulars relating to the loans obtained and Income Tax paid under Ex.P55 to the Investigating Officer. On the instructions of the Superintending Engineer of CPWD, PW-8-Thiru.Muthusamy, who was the then Assistant Electrical Engineer in CPWD, inspected the house of the appellant/accused at Somasundaram Colony, Madurai on 21.01.1991 along with the Inspector of Police and a Civil Engineer (PW-10-P.Natarajan) and estimated the value of the building, electrical appliances and motor pump-set. On the basis of his inspection, he issued Ex.P84 valuation certificate. iv) During the course of investigation, the Investigating Officer, namely P.W.17-Haridasan Nair obtained search warrant from the Chief Metropolitan Magistrate, Madras and conducted searches in the premises of the appellant/accused in five places. Out of the five places nothing was recovered from three places and the search list prepared by him is Ex.P7. For the seizures made in the residence of the appellant/accused, Ex.P4-search list was prepared and for the seizures made in the premises belonging to Ramanaghulu, Ex.P130-search list was prepared. During search a cash of Rs.1,71,000/- was recovered. An inventory was also taken under Ex.P10. The income of the appellant/accused was ascertained to be Rs.8,27,404/- and the value of the assets created by him during the check period was estimated at Rs.14,04,495.10. The value of the disproportionate wealth was fixed at Rs.7,16,761.91P as per the calculations. After an opportunity was given to the appellant/accused to explain the sources for the said assets, he was not able to give satisfactory explanation and on the other hand, the explanation given was not convincing and hence P.W.17 decided to file a charge-sheet. Before filing the charge-sheet, he applied for sanction for prosecution. P.W.1-Ram Mohan, who was the General Manager (Lubes), Marketing Operation, Indian Oil Corporation Head Office, Mumbai was the competent officer to take disciplinary action against the appellant/accused, as he was a 'C' grade officer. He perused the records placed before him, applied his mind and on being satisfied that there were enough materials to prosecute the appellant/accused, accorded sanction under Ex.P1 for such prosecution. P.W.17 submitted the final report dated 16.03.1999, along with the said sanction order, on the file of the Special Judge for CBI cases alleging commission of an offence punishable under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988.

3. The trial judge took the final report on file as C.C.No.111/1993, framed necessary charges and conducted trial pursuant to the plea made by the appellant/accused that he was not guilty. In order to prove the case of the prosecution, P.Ws.1 to 17 were examined and Exs.P1 to P134 were produced on the side of the prosecution.

4. After the completion of recording of evidence on the side of the prosecution, the appellant/accused was questioned under Section 313(1)(b) regarding the incriminating materials available in the evidence adduced on prosecution side. The appellant/accused denied them to be false and reiterated his stand that he was not guilty. The appellant/accused examined 11 witnesses as D.Ws.1 to 11 and produced 98 documents as Exs.D1 to D98 on his side.

5.At the conclusion of trial, the learned trial judge heard the arguments advanced on both sides and considered the evidence adduced on both sides. Upon such consideration, the learned Trial Judge came to the conclusion that the charge against the appellant/accused was proved and accordingly convicted him for the offence as per the charge and imposed punishment as indicated supra. However the learned trial Judge quantified a lesser amount as the value of unexplained disproportionate wealth. Challenging the conviction as well as the sentence, the appellant/accused has come forward with the present appeal.

6. The arguments advanced by Mr.AR.L.Sundaresdan, learned senior counsel representing M/s.Lakshmi Priya Associates, learned counsel on record for the appellant and by Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI cases, appearing for the respondent were heard. The materials available on record were also perused.

7. The point that arises for consideration in this appeal is:

"Whether judgment of the trial court convicting the appellant/accused is infirm and defective either in respect of conviction or in respect of punishment or in respect of both warranting interference of this court in this appeal?"

8. The first information report was registered alleging that the appellant/accused was in possession of assets disproportionate to his known sources of income to the tune of Rs.7,24,200/-. After investigation, a final report was filed in which the value of the disproportionate wealth was shown to be Rs.7,16,767.91P. The check period was taken as the period between 13.07.1983 to 29.08.1990. However, the learned trial judge came to the conclusion that the appellant/accused was not able to account for a portion of the said amount and the value of the unaccounted disproportionate wealth was Rs.2,93,034/-.

9. It is the contention of the learned senior counsel for the appellant that the trial Court committed an error in not taking note of the fact that the Investigating Officer valued the assets at the beginning of the check period at a lower rate and in direct contrast to the same, the value of the assets at the end of the check period was made at a higher rate; that the court below failed to appreciate the fact that the Investigating Officer took into account the assets acquired and investments made not during the check period, but subsequent to the check period, whereas the income of the appellant/accused covering the said subsequent period was not taken into consideration to find out whether the wealth possessed by the appellant/accused was disproportionate to the known sources of income; that the Court below also failed to note that the investments proved to be belonging to other persons had also been included in the assets of the appellant/accused and that if the said discrepancies were taken into consideration, then the margin between the source of income and the value of the assets acquired during the check period would be small. It is the further contention of the learned senior counsel for the appellant that the Investigating Officer and also the Court below failed to take into account the correct figure of income received by the appellant/accused as rent for his building and a major portion of the income of the wife of the appellant/accused was also omitted to be taken into consideration and that if the same are also taken into consideration, then the margin will be either nil or within the permissible percentage.

10.Per contra, the learned Special Public Prosecutor for CBI cases has contended that the assets that were available at the beginning of the check period were correctly noted after making an inventory and the value of the assets acquired prior to the check period as per the documents and information furnished by the appellant/accused was adopted in Statement-A filed along with the final report. It is the further contention of the learned Special Public Prosecutor that the value of the assets found at the end of the check period was correctly ascertained with reference to the bills, vouchers and also the valuation made by competent officials to evaluate and hence the figures furnished in Statement-B cannot be challenged as valuation made at a higher rate. The learned Special Public Prosecutor for CBI Cases has contended further that the entire income of the appellant, including the income of the wife of the appellant/accused, during the relevant period was taken into consideration and all the items of such income were included in Statement -C; that the probable expenditure during the check period has been stated correctly or even at a lower rate by the Investigating Officer in Statement-D and that, therefore, it cannot be said that a portion of the income was left out and the expenditure during the check period was boosted to show the assets held by the appellant/accused to be disproportionate to the known of sources of income of the appellant/ accused. The learned Special Public Prosecutor would submit that even the scaling down of the expenditure by the trial Court ought not to have been done and the figure noted in Statement  D as total amount of probable expenditure during the check period ought to have been taken as correct; that even assuming that certain items in Statement-B could be omitted as investments not pertaining to the check period or belonging to third persons, still a considerable difference shall be noticed between the net income derived from all sources and the assets acquired during the check period; that the amount that would have been saved during the check period for investment towards the assets acquired during the check period would be less than the value of the assets acquired during the check period and that the difference shall be several items more than the permissible limit. This Court paid its anxious considerations to the above said submissions made on both sides.

11.Along with the final report, PW17-Investigating Officer has produced four statements with the designations 1) Statement  A, 2) Statement  B, 3) Statement-C and 4) Statement  D. 44 items have been shown in Statement-A as assets possessed by the appellant /accused at the beginning of the check period i.e., as on 13.07.1983. The total value of the assets that were available with the appellant/accused as on 13.07.1983 has been shown as Rs.37,317/-. The details of assets and their value at the end of the check period, namely as on 29.08.1990 are found noted in Statement-B. A total number of 99 items have been shown in Statement-B and the total value of those items has been given as Rs.14,04,495.10P. The total income of the appellant/accused during the check period, namely the period between 13.07.1983 to 29.08.1990, including the income of the wife of the appellant/accused, is shown to be Rs.8,27,404.66P in Statement-C. The probable expenditure of the appellant/accused during the check period is furnished in Statement -D. Totally 12 items of expenditure have been noted therein and the total expenditure of the appellant/accused during the check period is given as Rs.1,76,994.47P in Statement-D. Deducting the total amount found in Statement-D, representing the probable expenditure incurred by the appellant/accused during the check period, from the total amount of income found noted in Statement-C., the figure of Rs.6,50,410.19P was arrived at by the Investigating Officer as the savings of the appellant/accused during the check period that could have been invested for the acquisition of the assets during the check period. The difference between the value of the assets acquired during the check period (namely total amount found in Statement  B minus total amount found in Statement-A) and the amount representing the probable savings (namely total amount found in Statement  C minus total amount found in Statement-D), was found and thus the Investigating Officer arrived at the figure Rs.7,16,767.91P as the value of the unexplained assets, for which the appellant/accused was not able to show the source of investment. According to the prosecution, the appellant/accused was not able to account for the assets to the tune of Rs.7,16,767.91P and hence he had committed the offence of misconduct punishable under Section 13(2) r/w.13(1)(e) of Prevention of Corruption Act, 1988.

12. It is the contention of the learned senior counsel for the appellant/accused that though the appellant/accused was facing charge of possessing assets disproportionate to his known sources of income and hence he was bound to satisfactorily account for the same, the initial burden of showing that the assets held by the appellant/accused was disproportionate to the sources of income of the accused known to the prosecution lies on the prosecution and that only when the prosecution discharges its burden of proving the same, the burden shall be shifted and cast upon the appellant/accused to satisfactorily account for such assets found to be over and above the known sources of income. In other words, the contention of the learned senior counsel for the appellant is that a public servant facing a charge of possessing disproportionate wealth shall have a defence, which is two fold :  firstly, to contend that the prosecution has not proved that the assets held by him is disproportionate to the income derived from lawful sources known to the prosecution and secondly, even if the prosecution is able to show that the accused is in possession of assets in excess of his known sources of lawful income, the appellant/accused shall have the opportunity of showing that such assets were acquired with the help of any income derived from any lawful source. The said contention of the learned senior counsel for the appellant states the proposition of law, the correctness of which cannot be disputed and in fact, is not disputed by the other side namely, the Special Public Prosecutor for CBI Cases. Based on the above submission regarding the preposition of law, the learned senior counsel for the appellant has argued that the prosecution failed to prove that the appellant/accused did possess assets disproportionate to or in excess of his known sources of income. In this regard, the following are the points urged by the learned senior counsel in his submissions to show that the prosecution failed to prove that the appellant/accused did possess assets disproportionate to his known sources of income:- 1)assets at the beginning of the check period were not correctly valued and they were under valued;

2)value of the assets found at the end of the check period was assessed at a higher amount by including assets that were not that of the appellant/accused and also by adopting higher value than the actual value for certain items;

3)income during the check period was assessed at a lower rate and certain income that came from lawful sources were omitted to be taken into account; and

4)expenditure of the appellant/accused during the check period was assessed at a higher rate and obsessed by duplication of items of expenditure.

13.The learned senior counsel for the appellant pointed out the fact that the contention of the appellant was partly accepted by the trial Court and it arrived at a conclusion that the value of the disproportionate wealth possessed by the appellant/accused at the end of the check period was Rs.2,93,434/- as against Rs.7,16,797.91P stated by the prosecution in the final report. The learned senior counsel for the appellant would contend that the trial Court committed an error in disallowing the claim of the appellant/accused for increase in the estimate of the assets at the beginning of the check period and also for the reduction of the value of the assets found at the end of the check period and that the Court below also committed an error in negativing the claim of the appellant/accused for the increase in estimation of the income of the appellant and reduction of the probable household expenditure during the check period. Let us now consider the sustainability of the above said contentions made by the learned senior counsel for the appellant to find out whether the Court below is right in holding the appellant/accused guilty of the offence as per the charge.

14. Statement  A contains 44 items of assets which were claimed to be with the appellant/accused at the beginning of the check period. All those items were included in Statement-A based on the documents produced showing the date of acquisition and the statements made by the accused and his family members regarding the time of acquisition and value of those items. An ancestral house, value of which has not been noted, is shown to be the first item in Statement-A. That is the reason why the said ancestral house is not shown to be one of the assets included in Statement-B representing the assets found at the end of the check period. If its value is noted in Statement-A, the very same value should be reflected in statement-B also. To find out the assets acquired during the check period, the value of the assets found in Statement-A should be deducted from the value of the assets found in Statement-B. Therefore, the omission to state the value of the ancestral house or the value of the share of the appellant in it, does not have any consequence as the inclusion of the same in both the statements, namely Statement-A and Statement-B, will neutralize and will not effect any change in the value of the assets acquired during the check period. It is also pertinent to note that no argument was advanced on behalf of the appellant/accused finding fault with the Court below for not showing the value of the ancestral house or the share of the appellant in it in Statement-A.

15. So far as Item No.2 found in Statement -A is concerned, admittedly the same was purchased as a vacant site by the appellant/accused before the check period. The Sub-Registrar, on whose file the sale deed under which the appellant/accused purchased it as a vacant site in the year 1983, has been examined as PW5. According to his testimony, the said property was purchased as a vacant site under a sale deed registered as Document No.5182 of 1983 on the file of the Joint Sub-Registrar No.4, Madurai and the sale consideration was Rs.21,112/-. The very same plot was also available at the end of the check period, but with the construction that was made by the appellant in the said plot during the said period. Therefore, the prosecution has rightly chosen to state the same amount as value of the plot in Statement-A and Statement-B and separately assess the value of the building.

16. Item No.17 to 44 in Statement  A are share certificates and their values at the beginning of the check period noted in Statement-A are not disputed. They are also repeated in Statement-B representing the assets at the end of the check period. Items 3 to 14 found in Statement  A are the household articles. As rightly held by the trial Court, those items are found included in Item No.1 of Statement-B. Two items in Statement-A (items 15 and 16) are gold ornaments. Item 15 is a minor chain and its value at the time of acquisition is noted as Rs.700/- in accordance with the statement made by the appellant/accused and the members of his family at the time of inventory. The same value is reflected in Statement-B also. Item No.16 in Statement -A is shown to be 55.7 sovereigns of gold ornaments. Its value is not found noted in Statement-A. It was the contention of the appellant/accused before the trial Court that the value of those jewels ought to have been included in the assets that were available at the beginning of the check period and the same should have been deducted from the total value of the assets found in Statement-B to arrive at the value of the assets acquired during the check period. Statement-A refers to the assets which were claimed to be with the appellant/accused at the beginning of the check period. The check period is between 13.07.1983 and 29.08.1990. But the inventory of such assets was taken under Ex.P5 only on 29.08.1990. A total number of 48 items are found noted in Ex.P5 inventory. Out of the said 48 items, 14 items have been shown to be purchased prior to the check period and their values have also been furnished. The total value of those 14 items as found in Ex.P5 shall be only Rs.18,645/-. Jewellery noted as Items 37 to 45 and 47 were claimed to be gifts. The value of the said jewels was not taken into account to find out the total value of assets at the beginning of the check period. The value of the jewels shown as Item No.16 in Statement-A has also not been mentioned in it. The learned senior counsel for the appellant, pointing out the said fact, has contended that the value of the said jewels should have been taken into account and the same ought to have been allowed to be deducted from the value of the total assets found at the end of the check period. It seems an argument was advanced on behalf of the prosecution before the trial Court that the value of the jewels have been included in Item No.1 of Statement-B representing the household articles found at the end of the check period. The trial Court also accepted the said contention and made an observation that the value of the said jewels have been included in the household articles. But, a cursory glance at Statement-A, Statement-B and Ex.P5 would show that the said observation is not correct. The total value of the assets found at the beginning of the check period is given as Rs.37,317/- in Statement-A, whereas in Statement-B value of the household articles shown as Item No.1 is given as Rs.43,285/-. The difference is only Rs.5,968/-. The same cannot be the value of 55.7 sovereigns of gold jewels. In fact neither in Ex.P5, nor in Statement-A, the value of the gold ornaments weighing 55.7 sovereigns has been noted. Therefore, the observation made by the trial Court that Item No.1 of Statement-B includes the value of the said gold ornaments is incorrect. The value of the said jewels weighing 55.7 sovereigns was not taken into consideration, perhaps because of the claim made by the wife of the appellant/accused that they were the gifts made to her either at the time of her marriage or on other occasions, denoting her Sridhana property. This Court finds no substance in the contention raised on behalf of the appellant that the non-mentioning of the value of 55.7 sovereigns of gold ornaments and failure to deduct it from the total value noted in Statement  B has caused an artificial increase in the value of the assets acquired during the check period.

17. It is also the contention raised on behalf of the appellant/accused that admittedly the appellant/accused was in possession of a Premier Padmini car even prior to the check period; that the previous car owned by the appellant/accused was sold for a sum of Rs.55,000/- and then the new car bearing Registration No. TD-X- 6494 shown as Item No.2 in Statement-B (shown as Item No.48 in Ex.P5) was purchased and that hence the amount of Rs.55,000/- should have been added to the assets available with the accused at the beginning of the check period and the same should have been allowed to be deducted from the value of the total assets found at the end of the check period. This Court is not in a position to accept the said contention of the learned senior counsel for the appellant for the simple reason that though there is an admission that he was having a car even before the check period, there is no evidence adduced on his side to show the value for which the car was purchased by him, the date on which the same was purchased, date on which the same was sold by him and the price for which the same was sold. On the other hand, Ex. P55 shows that a sum of Rs.42,248/- was sanctioned as loan for the purchase of the car bearing Registration No. TD-X-6494. Ex.P57 is the receipt showing that the appellant/accused purchased the said car for Rs.55,000/-. In the light of the said fact, if at all the appellant/accused could have invested any amount out of the sale of the old car, it could be (Rs.55,000  Rs.42,248) Rs.12,752/- alone and not more than that. In the defence statement also the appellant has given the figure Rs.42,248/- as the car loan availed by him. It is pertinent to note that the car loan was availed on 26.08.1986 as evidenced by Ex.P55. It is not the case of the appellant that any amount was due on the said loan as on the date of inventory. By the time the loan would have been repaid and such repayment could have been made from his salary and other income. Therefore, the loan amount cannot be added as a separate item to the income. The assets found at the beginning of the check period, excluding the value of 55.7 sovereigns of gold ornaments shown as Item No.16 of Statement -A, has been given as Rs.37,317/-. But the total value of all the household articles excluding the above said gold ornaments weighing 55.7 sovereigns and also excluding the car is found noted as Rs.43,285/- in Ex.P5 inventory. The very same amount is found noted as the value of the household articles in Item No.1 of Statement-B. It is obvious that only the articles found in Ex.P5, excluding 55.7 sovereigns of gold ornaments, have been designated as household articles in Statement-B. Item 1 of Statement-B titled as household articles does not include the car. Hence, there is no substance in the above said contention raised on behalf of the appellant/accused.

18. We have already seen that the value of those items found in Ex.P5 shown to be acquired prior to the check period is Rs.18,645. Items 17 to 44 in Statement -A are the other items that were acquired prior to the check period. Their total value comes to Rs.8,510/-. If the same is added the total value of the items shown to be acquired prior to the cheque period it will come to Rs.27,155/-. However, a higher amount of Rs.37,317/- has been deducted from the total value of the household articles found in statement-B to find out the value of the assets acquired during the check period. The appellant/accused cannot have any grievance over the same. Therefore, the contention made by the learned senior counsel for the appellant that the value of the assets acquired prior to the check period have not been properly assessed by the Investigating Officer in statement -A and the Court below has also committed error in accepting the said statement, cannot be sustained.

19. However, there is substance in the contention of the learned senior counsel for the appellant/accused that the prosecution itself, having chosen to give allowance of Rs.2,00,000/- in the First Information Report as presumed savings made taking into account the length of past service of the appellant/accused prior to the check period, ought not to have ventured to make an actual assessment of the value of the assets acquired prior to the check period; that the Investigating Officer ought to have taken the said amount to be the minimum value of the assets possessed by the appellant/accused at the beginning of the check period and that it was open to the appellant/accused to show that he was able to save even more and the value of the assets possessed by him at the beginning of the check period was more than the said amount fixed notionally by the prosecuting agency in the First Information Report. The contention of the learned senior counsel in this regard, is that the Investigating Officer ought not to have reduced the value of the assets at the beginning of the check period below the amount of probable saving notionally fixed, for the simple reason that the appellant/accused cannot be expected to show all the assets that were acquired prior to the check period and the sources of investment for such acquisition after the lapse of a period spreading over nearly decades. In this regard, PW17-Investigating Officer was confronted with a question as to the basis on which he took the value of the assets of the appellant/accused at the beginning of the check period at Rs.37, 317/- and as to why he had not adopted the notional value of Rs.2,00,000/- reflected in the First Information Report as the value of the assets at the beginning of the check period. For the said question, he gave evasive answer by stating that the appellant/accused was not able to produce documents to show such savings. If that is so, there cannot be any scope for notionally fixing the savings that would have been made prior to the check period. If the contention of the Investigating Officer (PW17) is accepted, the notional fixing of the savings prior to the check period will serve no purpose and will be meaningless. In all cases wherein notional amount is fixed as the probable savings during the period anterior to the check period, the prosecution has only a limited option of verifying whether the assets acquired during the period anterior to the check period is claimed to be more than the notional amount and if so, whether such a claim is supported by materials and to what extent. Otherwise the prosecution has no other alternative, except to take the notional value as the savings of yester years, namely period anterior to the check period. Since the value of the items found in Statement-A is below the notional value fixed in the FIR, Statement  A becomes useless and the same has got to be disregarded. Therefore, this Court comes to the conclusion that the Court below ought to have taken the value of the assets available with the appellant/accused at the beginning of the check period to be at a minimum of Rs.2,00,000/- when the appellant was not able to show that he was in possession of assets to a higher value. When such a notional value is taken, which is more than the value reflected in Statement-A, then the appellant/accused cannot try to get double benefit by showing under valuation of specific items in statement-A. Therefore, this Court comes to the conclusion that the statement A should be disregarded and instead of the total amount reflected in statement-A, a sum of Rs.2,00,000/- should be taken as the value of the assets possessed by the appellant/accused at the beginning of the check period, which is in consonance with the case of the prosecution itself, as reflected in the First Information Report.

20. The next aspect to be considered is "whether the contention of the appellant/accused that the items shown in Statement-B are valued at higher rate, besides the inclusion of certain items which do not belong to the appellant/accused and inclusion of certain investments made subsequent to the check period, whereas the income pertaining to the corresponding period subsequent to the check period was not taken into account, has been substantiated and whether the total value of assets possessed by the appellant/accused at the end of the check period should be assessed at a lower rate than the amount found noted in Statement-B?" Totally 99 items have been included in Statement-B. Out of those 99 items, item No.6 representing a sum of Rs.2.00 Lakhs in the form of fixed deposit with Punjab National Bank, Nungambakkam Branch dated 25.10.1990, item No.7 represents a sum of Rs.1,35,000/- kept as fixed deposit with the Punjab National Bank in the names of Sundaram and Jayalakshmi Sundaram, item No.97, a sum of Rs.9,000/- representing the deposit in the form of loan with PW13-Sudha Narasimhan, item No.98 a sum of Rs.10,000/- deposited in the form of loan with Shri Sundara Gopalan, Cashier, Bank of India, Kotambakkam Branch and item No.99-N.S.C Certificate for the value of Rs.25,000/- are the items which are claimed to be either investments made subsequent to the check period or the investment not belonging to the appellant/accused, but belonging to other persons item No.4 representing the value of the building constructed over the plot bearing R.S.No.43/13 in Ponmani Village, Madurai-16, is claimed to be valued at a higher rate. Let us now take up those items individually for consideration.

21. Item No.4 is the value of construction made in the plot bearing R.S.No.43/13, Ponmeni village, Madurai-16 and the plot alone is shown as a separate item in item No.5. There is no dispute over the valuation of the site as Item No.5. However, it is the contention of the appellant/accused that the value of the building has been assessed at a higher rate, despite admissions made by the witnesses examined on the side of the prosecution and clear and categorical testimony adduced through P.W.15-L.G.Subramanian, the brother of the appellant/accused. P.W.2, the then Chief Town Planning Officer, Madurai Corporation has given evidence to the effect that for the construction of the building, the appellant/accused paid a sum of Rs.520/- towards license fee and a further sum of Rs.1,270/- as fee for laying road. P.W.5-Sub-Registrar simply speaks about the purchase of the vacant site, its purchase value, stamp duty and the registration fees. P.W.8-Thiru.Muthusamy, the then Assistant Electrical Engineer, CPWD was the person who inspected the said house shown as item No.4. He has valued the electrical appliances alone. However, there is a clear admission made by P.W.8 that he took the value of the electrical appliances that was prevailing in 1991, whereas admittedly the building was constructed between 1984 and 1986. It is also his clear admission that there was a vast difference between the cost of electrical appliances prevailing in the years 1986 and 1991. It is also his clear admission that if the electrical appliances found in the house of the appellant/accused had been purchased in the period between 1984 and 1986, it would have cost only a sum of Rs.15,000/-. P.W.10-Thiru.P.Natarajan, the then Assistant Engineer (Civil), CPWD was the person who valued the building as on 07.01.1991. He has pointed out Ex.P87 to be the valuation certificate issued by him. But, it is curious to note that Ex.P87 is only a document showing deviation found in the actual construction from the sanctioned plan. Even P.W.10 has admitted in his evidence that he valued the building in accordance with the CPWD manual. At the same time he has admitted that in case materials are purchased directly, 10% from the total value of the materials should be deducted. But he has admitted that he did not allow such deduction of 10% from the value of materials. The reason given by him is that the appellant/accused had neither directly purchased the materials nor supervised personally the construction work. In this regard, the evidence of P.W.10 is self-contradictory. At one place he says that a deduction of 10% from the total value should be allowed if the materials have been purchased directly and the construction work has been done under the supervision of the owner. At another place he would say that for such contingencies, namely direct purchase of materials and direct supervision of the construction work, a deduction of 7.5% from the total value may be allowed. P.W.10 is a qualified engineer and it is surprising to hear him state that that he is not aware of the fact that the ground floor and the first floor portions are to be separately and differently valued. In the light of the above said admissions made by P.W.10 regarding the value of the construction and P.W.8 regarding the valuation of the electrical appliances, it shall not be safe to accept the valuation of the building given by them.

22. The building shown as item No.4 in Statement-B has been valued at Rs.4,42,598/-. For the reasons cited above, this court has to come to the conclusion that the building has not been proved to be properly valued by PWs.8 and 10 since the value of the electrical appliances was not assessed according to the rate prevailing during the period of construction, but 5 to 6 years subsequent to the period of construction and the deductions for direct purchase of materials and direct supervision of construction have not been allowed, even though evidence has been adduced through P.W.15, the brother of the appellant/accused, to the effect that direct purchase of materials were made and he supervised the construction work for his brother, namely the appellant/accused. It is also pertinent to note that the valuation of the building and the electrical appliances made by the engineers, namely P.W.8 and P.W.10 has not been proved to be in accordance with rules. On the other hand, P.W.15, the brother of the appellant/accused was examined by the prosecution in order to prove the cost of construction. In the chief examination itself he has started in clear terms that his brother, namely the appellant/accused, started the construction in 1984-85 and completed the construction in March/April 1986 and that since the appellant/accused was employed at that time in Chennai, it was he who directly supervised the construction work and the total cost of construction was Rs.3,40,000/- alone. Comparatively he has given a lower figure than the valuation arrived at by the engineers, as the cost of construction. Still he was not treated as hostile witness and cross-examined with the permission of the court. The same shows that the prosecution accepts the testimony of P.W.15 that only a sum of Rs.3,40,000/- was the cost incurred for the construction of the building shown as item No.4 in Statement-B. The trial court also seems to have accepted the above said contention regarding the value of the building shown as item No.4 of Statement-B. But there is no clear finding as to what is the amount taken as the value of the building by the trial court. As pointed out supra, the value of the building including the electrical appliances shown as item No.4 in Statement-B should be taken as Rs.3,40,000/- in tune with the evidence of P.W.15 as against Rs.4,42,598/-, the figure arrived at by the Engineers (PW8 and PW10).

23. Ex.P125-Fixed deposit bearing FD Receipt No.QDB1 750538 dated 25.10.1990 issued by the Punjab National Bank, Nungambakkam Branch in the name of the appellant and his wife for a sum of Rs.2,00,000/- is shown as item No.6. Regarding the said deposit the Financial Advisor and Auditor of the appellant/accused, namely Mr.G.Surulivel has been examined as P.W.9. It is his clear and categorical testimony that the appellant/accused had given him a sum of Rs.2,00,000/- in the month of May 1988 for investment and he had invested the said amount after getting the same from the appellant/accused; that the appellant/accused was receiving interest for the same every month upto August 1990 and that he repaid the said amount of Rs.2,00,000/- to the appellant/accused by way of a pay order. However, during cross-examination, P.W.9 would say that, during the course of the investigation of the case, the Investigating Officer, namely Mr.Haridoss Nair, the Inspector of Police, CBI got information regarding the said investment, took him to the bank and asked him to deposit the amount in the presence of the appellant/accused and that for the said purpose, the Investigating Officer had asked the appellant/accused to come to the bank. Of course it is true that during cross-examination an answer was elicited from P.W.9 that he was informed by the appellant/accused at the time of entrustment that the said amount was the savings made by the father and wife of the appellant/accused. The same shall not be enough to hold that the said amount belonged to either the father of the appellant/accused or the wife of the appellant/accused. No clear evidence, in this regard, has been adduced on the side of the appellant/ accused. Even though the fixed deposit shown as item No.6 of Statement-B was made on 25.10.1990 i.e., subsequent to the check period, clear and sufficient evidence has been adduced through P.W.9 to the effect that the said amount had been invested with P.W.9 in 1988 itself and interest for the said amount had been received by the appellant/accused till the same was repaid in the form of pay order and the said amount which came to the appellant/accused during the course of investigation was directed to be deposited with the bank in the name of the appellant and his wife. Therefore, this court finds no defect or infirmity in the inclusion of the said amount as an asset that was available on the date of inventory or as an asset available with the appellant/accused before the closure of the check period. The objection raised on behalf of the appellant/accused for the inclusion of the said amount in the assets cannot be sustained.

24. Regarding item No.7, namely fixed deposit No.QDB/1 750537 dated 25.10.1990 issued by the Punjab National Bank in the name of the appellant/accused and his wife for a sum of Rs.1,35,000/-, it is the contention of the learned senior counsel for the appellant/accused that the said amount was not proved to be that of either the appellant or the wife of the appellant and on the other hand, even as per the evidence adduced by the prosecution through PW-12, only a sum of Rs.35,000/- was that of the appellant/accused and the balance sum of Rs.1,00,000/- was that of DW-11-Ravi and that therefore, the entire amount or at least Rs.1,00,000/- out of Rs.1,35,000/- should be deducted from the total value of the assets found in Statement-B.

25. It is the contention of the learned Special Public Prosecutor for CBI cases that since the amount was paid to the appellant and received by the appellant under acknowledgment, it shall be presumed that the entire amount belonged to him; that therefore, the burden of proving that the same does not belong to him lies on the appellant; that the appellant's attempt to prove that PW-12 was made to deposit the said amount after the inventory and during the course of the investigation, was not successful and that therefore, the inclusion of the said amount in the assets of the appellant in Statement-B cannot be found fault with and the objection raised for the same, on behalf of the appellant, should be rejected as untenable.

26. In this regard, it is pertinent to note that the prosecution mainly relies on the testimony of PW-12  Ramanagulu. His version in the chief examination was to the effect that he purchased the lorry bearing Regn.No.TSA 1008 from Ravi (DW-11) in the month of July or August 1998 for an agreed consideration of Rs.2,15,000/-. It was his further testimony in the chief examination that there was a vehicle loan obtained for the said lorry and the amount due to be repaid was Rs.1,15,000/- and that he undertook to settle the amount due to the bank on the vehicle loan and availed a credit for the balance amount of Rs.1,00,000/- from Ravi (DW-11). It was the further testimony of PW-12 in the chief examination that, in addition to the same he got a loan of Rs.35,000/- from the appellant for the maintenance of the said lorry and for the amounts due to DW-11 - Ravi and the appellant, he was paying a monthly interest of Rs.2,500/- to DW-11  Ravi if he would be available and in his absence, to the appellant. It was also his testimony in the chief examination that he repaid the said amount by way of banker's cheque (pay order) dated 22.10.1990 taken in the name of the appellant/accused on the instructions of DW-11  Ravi. The challan for payment of the amount for taking the banker's cheque and the banker's cheque have been marked as Exs.P88 and P89 respectively. The appellant/accused is said to have received the said banker's cheque (pay order) on the same day and issued a receipt under Ex.P90. It is pertinent to note that, PW-12, stated that he wanted to have evidence of payment of the said amount and that was the reason why he took banker's cheque and repaid the amount. However, there is no explanation as to why in addition to the same, a receipt was obtained in a plain paper under Ex.P90 without even affixing necessary stamp.

27. It is also obvious that the inventory was taken on 29.08.1990. The first information report was dated 29.08.1990. After the inventory, admittedly the bank accounts of the appellant were freezed. It was during 1993 the same was relaxed by allowing him to operate the accounts to some extent. It is quite improbable for the appellant/accused, who was facing a case under investigation for possessing wealth disproportionate to the known sources of income and after his bank accounts having been freezed, to ask his debtor to make repayment of the amount lent by him by way of a banker's cheque. Ex.P94 has been produced to show that the said banker's cheque was deposited by the appellant himself on the same day, namely 22.10.1990 to be credited to his savings bank account No.3800 maintained with Punjab National Bank. In Ex.P4-Search list, the Punjab National Bank pass book of the appellant pertaining to his savings bank account No.3800 with the balance of Rs.170.30P was shown as one of the items seized under the search list and assigned sl.No.8. From Ex.P4 it is obvious that the said pass book was seized on 29.08.1990 itself. The said pass book seized by the Investigating Officer has been produced as Ex.P121. It is surprising to note that entries have been made in Ex.P121 even after the date of seizure. How and under what circumstances such entries were made after the seizure of the same by the Investigating Officer  has not been explained by the prosecution. Under such circumstances, the evidence of PW-12 in the cross examination gains significance.

28. It is his evidence in cross-examination that he did not have any account with the Punjab National Bank. He has stated that he was maintaining an account with Bank of India, K.K.Nagar; that he got a loan of Rs.1,35,000/- from a pawn broker (marwadi) by hypothecating the lorry; that the said amount was paid by the marwadi by way of a DD; that he deposited the DD in his bank account and that he withdrew the amount immediately, went to Punjab National Bank and got the banker's cheque (pay order) in favour of the appellant/accused. However, he also denied the suggestion that he took Banker's cheque (pay order) in favour of K.G.Sundaram only at the instance of the CBI officials. However the said part of the evidence in the first lap of his cross-examination sounds incredible. If at all he wants to take a Demand Draft in favour of the appellant on his own accord, he could have taken it from the bank in which he was operating his account. His version that he got a loan of Rs.1,35,000/- from a marwadi and the said amount was paid to him by a DD; that the same was paid into his account in Bank of India, K.K.Nagar Branch; that immediately the said amount was withdrawn by him and that thereafter, he went to the Punjab National Bank and took the DD (pay order) in favour of the appellant and gave him after getting a receipt from him, seems to be a make believe story. No record showing such drawal of amount from his account in Bank of India, K.K.Nagar Branch has been produced. Even though PW-12 has named the marwadi with whom he hypothecated the lorry and got the amount to be one Suresh, address of the said person is not known and he has not been examined as a witness on the side of the prosecution. The DD alleged to have been given by the said Suresh to PW-12 has not been recovered and produced by the prosecution. Not even the hypothecation deed proving the said version has been recovered and produced. At least the Registration Certificate of the lorry could have been produced to show that such an endorsement of hypothecation in favour of Suresh was made in it but that has not been done. Therefore, the above said testimony made by PW-12 in the first lap of his cross-examination that he was not insisted upon by the CBI Officials to take a DD (pay order) in favour of the appellant/accused does not seem to be a trustworthy one.

29. On the other hand, during his further cross-examination on a subsequent day, he has stated that lorry transport business was done in the name of Srividhya Transport initially by DW-11  Ravi and one Prema Narasimhan as a partnership business; that Prema Narasimhan retired from the partnership in July 1988 and DW-11  Ravi took him (PW-12) as his partner; that both DW-11  Ravi and he (PW-12) borrowed a sum of Rs.35,000/- from the appellant for purchasing the lorry to do the transport business and that it was on the insistence of PW-17-Haridasan Nair, the Investigating Officer, he took steps to get the pay order in favour of the appellant. Since PW-12, in the second lap of his cross-examination, admitted the suggestion made on behalf of the appellant/accused, he was treated hostile and with the permission of the court, he was cross-examined on the side of the prosecution. During the course of such cross-examination made on behalf of the prosecution, he has stated that only because of the threat made by the CBI Officials that he would be hung upside down and thrown into the railway track, he suppressed the fact that he took the pay order at the instance of the Investigating Officer and that since his conscience pricked him for having told a lie in the court in his testimony on the previous date of hearing, he decided to divulge what happened. The same is in consonance with the evidence of PW-14 - Prema Narasimhan, who has stated that the lorry business in the name of Srividhya Tranport was run by herself and PW-11  Ravi as a partnership business and the lorry owned by them was with a Registration No.TSA 1008 and that they had maintained an account in the name of Srividhya Transport in K.K.Nagar Branch of Bank of India. DW-11  Ravi has also stated in clear terms that the lorry bearing Registration No.TSA 1008 was owned by the partnership business run by Ravi and Prema Narasimhan in the name of Srividhya Tranport; that they had availed bank loan for the said lorry; that on 01.07.1998  Prema Narasimhan retired from the partnership and that he took PW-12 - Ramanagulu as his partner and continued the business. Ex.D91 is the partnership deed dated 21.07.1986 between DW-11 and PW-14  Prema Narasimhan. Ex.D98 is the deed of dissolution of partnership dated 01.07.1988 on the retirement of PW-14  Prema Narasimhan from the partnership. Ex.D90 is the even dated partnership deed between DW-11  Ravi and PW-12  Ramanagulu. It is obvious from the same that the transport business was run as a partnership business in the name of Srividhya Transport, initially by DW-11 and PW-14 as partners and from 01.07.1988, on the retirement of PW-14, the partnership was reconstituted with DW-11 and PW-12 as partners. A comparative consideration of the evidence of PW-12, PW-14 and DW-11 and the documents referred to above would show that the payment of Rs.1,35,000/- by way of DD (pay order) dated 22.10.1990 could have been made only on the insistence of the Investigating Officer, as spoken to by PW-12. DW-11 has also stated that he was forced by the Investigating Officer to sign the "T.O." form relating to the lorry. The prosecution has not chosen to seize either the RC book or a certificate of the entries regarding the Registration Certificate from the concerned Regional Transport Office. In addition, DW-11 has made a clear statement that they were having a bank account in the name of Srividhya Transport with Bank of India, K.K.Nagar Branch, Madras and that a sum of Rs.1,54,000/- had been obtained as loan. Two of the unused cheque leaves pertaining to the said account have also been produced as Exs.D92 and 93. A copy of the loan account referred to by DW-11 has been produced as Ex.D94. The same will evidence that loan has been obtained as spoken to by DW-11. Copies of documents like permit, temporary permit and application for renewal of permit have also been produced on the side of the appellant/accused. DW-11 also has stated in his evidence that the said amount belong to him and when he asked PW-12 about the said amount he told him that he had paid it to the appellant/accused and that when he asked the appellant/accused about the said amount he informed him that the amount could not be withdrawn and paid to him, as the case was pending and that he would draw the amount and pay it to him after the case would be over. All the said evidence will go to show that the entire amount of Rs.1,35,000/- shown as item No.7 in Statement-B could not be the asset belonging to the appellant/accused and on the other hand, the said amount was made to be paid into the account of the appellant/accused during the course of the investigation due to the insistence of the Investigating Officer.

30. The fact that the amount was paid due to the insistence of the Investigating Officer alone will not be enough to show that no part of the amount did belong to the appellant/accused. Though PW-12 has been treated hostile and cross-examined on behalf of the prosecution also his evidence cannot be totally discarded. The admissible part of his testimony can be relied on. Throughout his evidence, he has maintained a consistency in asserting that a sum of Rs.35,000/- was advanced by the appellant/accused for the partnership business run in the name of Srividhya Transport. Apart from the testimony of PW-12 there is no other evidence to show that the other part of the said amount, namely the balance Rs.1,00,000/-, belonged to the appellant. Therefore, we have to necessarily come to the conclusion that part of the amount, namely a sum of Rs.35,000/- out of Rs.1,35,000/- shown as item No.7 in statement-B alone belonged to the appellant/accused and the prosecution has failed to prove the balance amount of Rs.1,00,000/- to be that of the appellant. Hence the excess amount of Rs.1,00,000/- noted in item No.7 is liable to be deducted from the total amount shown as the value of assets in Statement-B.

31. Item No.97 in Statement-B is said to be a deposit of Rs.9,000/- in the form of loan with P.W.13-Sudha Narasimhan. P.W.13-Sudha Narasimhan, in her evidence, has stated that she borrowed to a total sum of Rs.9,000/- little by little from the appellant/accused in 1982 and she repaid the same in the same manner. But there is want of evidence in this regard to show that the said amount of Rs.9,000/- was available as an asset of the appellant/ accused on the date of closure of the check period. P.W.13 in her evidnece has stated that she did not remember either the date, month or the year of repayment of the loan. There is also no evidence to show that the said amount was repaid subsequent to the check period and hence the prosecution included the said amount in the assets as an amount due to the appellant/accused on the date of closure of the check period. Therefore, this court accepts the contention of the learned counsel for the appellant that the said amount of Rs.9,000/- shown as item No.97 in Statement-B should be omitted from the assets of the appellant/accused as on the date of closure of the check period.

32. Item No.96 is shown to be deposit of Rs.12,000/- in the form of loan with one Manonmani. There is no document to prove the same. The said Manonmani also has not been examined. Hence the said amount is to be deducted from Statement-B.

33. Similarly, a sum of Rs.10,000/- shown in item No.98 as deposit in the form of loan with one Sundaragopalan has not been proved to be an asset of the appellant/accused. No document pertaining to the said item has been produced; nor was the said Sundaragopalan examined as a witness for prosecution. Therefore, item No.98 has to be deleted from the assets of the appellant/accused. Similar is the case of item No.99. It simply states that a sum of Rs.25,000/- was held as NSC certificate. But such a certificate has not been produced. No witness to prove the said entry has also been examined. Item No.99 in Statement B is not supported by any document. PW17, the Investigation Officer was also evasive in his answer to a question relating to the same by stating that he did not remember whether he produced the supporting document to substantiate it or not. Hence the said amount of Rs.25,000/- should also be deducted from the value of assets found as on 29.08.1990.

34. The appellant/accused made an attempt to show that out of the assets found as on 29.08.1990, a sum of Rs.8300/- was the amount sent by DW10 to meet the expenses of his son Ramesh who was studying in Adarsh Vidyalaya, Chennai staying in the house of the appellant/accused. It is true that he has given evidence to the effect that a sum of Rs.8300/- was sent by him by way of demand draft, drawn on Punjab National Bank in favour of the appellant/accused. But it must be noticed that such an amount was not available in the Savings Bank account of the appellant/accused maintained with Punjab National Bank, Nungambakkam, which is shown as Item No.66 in Statement -B. Only a sum of Rs.372.65P was found to the credit of the said account. Even in the other savings bank account of the appellant/accused shown as Item No.68 and 69 and 73 of Statement B, only meager sums of Rs.461.40P, Rs.184.24P and Rs.161.42P were found. Similarly in expenditure column in Statement  D, the expenditure incurred on the schooling of Ramesh, Son of DW10, V.R.Sundaram has not been included. Even if it is true that PW10 would have sent a sum of Rs.8300/- by way of Demand Draft to meet the expenses of his son, the said amount could have been spent on Ramesh. Since the expenditure incurred on Ramesh has not been included in Statement  D, there is no need to deduct it from the assets found available with the appellant /accused as on 29.08.1990. Therefore, the contention raised on behalf of the appellant for the deduction of the said amount from Statement  B has to be discountenanced.

35. In addition, as rightly pointed out by the learned senior counsel for the appellant/accused, deposits made subsequent to the check period have also been included in Statement-B. Out of those deposits, we have seen that a sum of Rs.2,00,000/- shown in item No.6 was proved to be an asset available with the appellant/accused as it was due from PW9 and hence the said amount, though invested subsequent to the check period, was rightly included in the assets of the appellant/accused as on the date of the closure of the check period. It has also been held supra that only Rs.35,000/- out of Rs.1,35,000/- fixed deposit shown as Item 7 belonged to he appellant and the balance Rs.1,00,000/- was not proved to be that of the appellant/accused. But, there are other items of investments made subsequent to the check period regarding which the prosecution has failed to show the basis on which they were, included as assets that were available with the appellant/accused at the end of the check period. They are item Nos.9 to 20, 25 to 27, 29 and 30 in statement-B. Majority of those investments were made nearly an year after the end of the check periuod and other investments were made after a number of months from the date of closure of the check period. The prosecution has not proved by evidence that the said investments were made from the funds already available with the appellant/accused on the date of closure of the check period. Even if it is to be presumed that the source of the said investments could be best brought to the notice of the court by the appellant/accused, the appellant/accused cannot be expected to account for the same, because prosecution has not chosen to enlarge the check period to include the last of the dates of those investments so that the income up to that date could also have been taken into account. In this case it is obvious and it is also admitted that the income of the appellant/accused and his wife upto the date of closure of the check period alone was taken into account and included in Statement-C. Therefore, as rightly pointed out by the learned senior counsel for the appellant/accused, the very procedure adopted by the prosecution to work out the value of disproportionate assets possessed by the appellant/accused was defective and erroneous so far as investments made even after the check period were taken into account whereas the income during the said period was not taken into account. Therefore, the said items have to be deleted. The sum of the amounts noted against those items 9 to 20, 25 to 27, 29 and 30 in Statement  B comes to Rs.1,64,500/- and the same shall be deducted from the total amount in Statement-B. If the above said deductions are made, the assets of the appellant/accused as on 29.08.1990, namely at the end of the check period, should be reduced substantially. For the sake of brevity the following calculation is provided:- a) Excess amount noted against item No.94,

namely value of the building

(Rs.4,42,598 - 3,40,000) - Rs.1,02,598.00

b)The excess amount to be deducted in

respect of item No.7 in Statement 'B',

namely Rs.1,00,000/- - Rs.1,00,000.00

c) Sum of the investments made subsequent

to the check period that were proved to be

investments madefrom the assets available

as on the closure ofthe check period

viz., Items 9 to 20, 25 to 27, 29 and 30 - Rs.1,64,500.00

c) Sum of Items 97,98 and 99 that are to be

disallowed - Rs. 56,000.00

-------------------

Total amount to be deducted from the assets of Rs.4,23,098.00

of the appellant/accused at the closure of the --------------------

check period

If the said amount is deducted from the total amount shown in Statement B, the assets of the appellant/accused as on the closure of the check period will be Rs.9,81,397.10P.

36. The income of the appellant/accused and that of his wife during the check period is given as Rs.8,27,404.66 in Statement-C. A contention has been raised on behalf of the appellant/accused that the income of the wife of the appellant/accused during the relevant period was not taken into account. Such a contention seems to have been made without even properly verifying the items included in Statement-C. Item No.27 in Statement-C is the salary received by Mrs.Jayalakshmi Sundaram, the wife of the appellant/accused during the relevant period. The same has been noted as Rs.96,000/- and hence the blanket contention that the income of the wife of the appellant/accused was not taken into account cannot be accepted and sustained. When the said aspect was pointed out, the learned senior counsel for the appellant/accused took the court through the documents produced by the appellant/accused and contended that the income of the wife of the appellant/accused during the relevant period proved by producing Income Tax returns has not been fully taken into account and that, had the same been taken into consideration the total income of the appellant/accused and his wife would be increased considerably. In this regard it is an admitted fact that Jayalakshmi, wife of the appellant/accused, was a beautician and she was employed in a beauty parlour for some time. The Investigating Officer took her salary from the beauty parlour at the average of Rs.2,000/- per month and that is the reason why the Investigating Officer chose to state her total salary to be Rs.96,000/-. In this regard, this Court wants to point out that the Court below failed to properly appreciate the oral and documentary evidence adduced on both sides and the same has resulted in accepting the case of the prosecution that the income of the wife of the appellant during the check period was only Rs.96,000/-.

37. PW14- Prema Narasimhan is the person under whom Jayalakshmi Sundaram, the wife of the appellant, was employed. PW14's testimony is to the effect that she was running a beauty parlour in T.Nagar and also in Parsn Plaza and Jayalakshmi Sundaram, the wife of the appellant, was employed under her from 1984 to 1988 and was getting a monthly salary of Rs.2000/- per month. The said evidence prompted the Investigating Officer to calculate the income of Jayalakshmi Sundaram, wife of the appellant/accused, for four years alone at the rate of Rs.2000/- per month. The starting point of check period was 13.07.1983 and 29.08.1990 was the closing point of the check period. Therefore 5 = months prior to the check period and 2 years and 8 months prior to the date of inventory were omitted to be taken into consideration by the Investigating Officer. The income derived by the wife of the appellant/accused during the said period was totally ignored. Even during the period 1984  1988, that is from January 1984 till the end of December 1987, salary paid to her by PW14 alone has been taken into account. Besides being employed under PW14, there are documents to show that she was taking make up tuition classes and was also doing bridal make-up for marriages and for other on other functions on invitation of the customers at their places for such functions. Exs. D32 to D52 are the Income Tax returns, acknowledgments and assessment orders of Jayalakshmi Sundaram, wife of the appellant/accused, pertaining to the check period. The particulars of income returned from the assessment year 1983-84 to 1990-91 are as follows: SL.No.

Assessment Year

Late date of accounting year

Net Taxable income Rs.

Exhibits

Remarks

1

1983-1984

NOT TAKEN INTO ACCOUNT

31.03.1983

16000

D31, D32 & D33

Since it pertains to a period prior to the check period, the same can be ignored

2

1984-85

31.03.1984

20000

D34,D35 & D36

3

1985-86

31.03.1985

43060

D37 & D38

4

1986-87

31.03.1986

30000

D39, D40 & D41

5

1987-1988

31.03.1987

33100

D42, D43 & D44

6

1988-1989

31.03.1988

28410

D45 & D46

7

1989-1990

31.03.1989

18320

D47 & D48

8

1990-1991

31.03.1990

18440

D49 & D50

Total

Items 2 to 8

1,91,330

Therefore, as against Item No.27 in Statement  C Rs.1,91,330/- is to be substituted for Rs.96,000/-. So, the difference amount should be added to the list of income.

38. A suggestion made by the public prosecutor to the effect that those Income Tax returns were prepared for the purpose of the case has been stoutly denied. In addition, it must be noticed that all the said Income Tax returns were filed from the year 1986 more than four years prior to the registration of the case and initiation of the criminal proceedings. Unless it is established by cogent evidence that those documents were prepared in expectation of being made to face a charge of possessing disproportionate wealth, the said documents cannot be discarded as unreliable. In this regard, besides the production of those documents, which contain the seal of the Income Tax Department on the relevant dates of filing of those returns with the said department, the auditor PW9's evidence also supports the defence plea of the appellant and not the prosecution case. So the difference amount (Rs.1,91,330  Rs.96,000) = Rs.95,330/- should be added to the income.

39. In Statement  C, Item No.5 is shown to be the rental income from the house of the appellant/accused in S.S.Colony, Madurai and the income by way of rent has been calculated at Rs.64,440/- for the entire check period i.e., from 13.07.1983 to 29.08.1990. The details of valuation of the rental income have not been furnished by the prosecution. On the other hand, a consideration of the evidence of PW15-K.G.Subramanian, which also stands corroborated by the evidence of PW16-Rajamanickam, will show that the total rental income for the check period for all the four portions in the house in S.S.Colony, Madurai will be more than the amount noted in item 5 of Statement-C. According to the testimony of PW15, the construction was over in the month of March or April 1986 and tenants came to occupy the portions only after 3 or 4 months. Therefore, we can ignore the entire year 1986 and the rental income from January 1987 can be taken into account. According to PW15 following persons paid rent for the portions occupied by them as follows: SL.No.

Name

Portion Occupied

Rental amount

in Rupees

1

Ramasamy

Door No.8A

25053

2

Rajamanickam

Door No.8B

25053

3

Kasipandian

Door No.8C

32100

4

Janarthanan

Door No.8D

24640

Total

106846

Rental income given in Statement  C = Rs. 64,440.00

Actual Rental income = Rs.1,06,846.00

------------------------

Difference Rs. 42,406.00

So the total income as found in Statement-C should be increased by Rs.95,330/- and Rs.42,406/- as indicated supra.

Total amount of income noted in Statement-C = Rs.8,27,404.66

The amount to be added as

indicated supraRs.95,330.00 + Rs.42,406.00 = Rs.1,37,736.00

------------------------

So the actual total in Statement  C will be = Rs.9,65,140.66

------------------------

40. The learned senior counsel for the appellant also pointed out the fact that in Item 2 of Statement  D excess amount than the amount cited by the concerned prosecution witness has been shown to be the expenditure incurred on house rent for the house at No.10,Deenadayalu Nagar, T.Nagar, Chennai of which the appellant/accused was the tenant during the check period. PW3-Manoharan, who was managing the above said house let out to the appellant/accused during the relevant period on behalf of its owner, has deposed to the effect that the appellant was paying a rent of Rs.550/- per month from the beginning till the end of 1985; that thereafter he paid the rent at the rate of Rs.750/- per month till the end of 1986 and that from 1987 he was paying a rent of Rs.900/- per month. As per his evidence the rent paid by appellant is calculated as follows:

i) July 1983 to December 1985 = Rs.16,500.00

ii) Jan 1986 to December 1986 = Rs. 9,000.00

iii) Jan 1987 to August 1990 = Rs.39,600.00

---------------------

Total = Rs.65,100.00

---------------------

41. Similarly in Item No.10 of Statement  D, expenses for the marriage of the sister of the accused is shown to be Rs.5000/- as if the said expenditure was incurred during the check period. But unfortunately PW17, the Investigating Officer himself has admitted that the marriage of the sister of the appellant / accused took place in the year 1972 itself and the expenditure was shown as if the same was incurred during the check period. Therefore, the said amount of Rs.5000/- found in Item No.10 of Statement D should be deleted. Similarly apart from the expenditure of the family, the Investigating Officer has also shown a sum of Rs.13,200/- separately as the expenditure of wife of the accused and son of the accused as item No.11. Under the head of expenditure on rent, the difference amount of Rs.12,200/- has to be reduced. So the total amount to be deducted from Statement is (Rs.5,000+Rs.13,200+Rs.12,200) = Rs.30,400/-.

42. The learned Special Public Prosecutor for CBI cases has submitted that in case net taxable income as per the Income Tax returns of Jayalakshmi Sundaram, namely the wife of the appellant/accused, is taken as income during the check period, the expenditure during the check period should be increased by the corresponding income tax paid as per the returns. The said submission made by the learned Special Public Prosecutor for CBI cases is quite reasonable and sustainable. The tax liability for the relevant assessment years is given below:- 1984-85 (Accounting year 1983-84) : Rs. 1,406

1985-86 (Accounting year 1984-85) : Rs. 7,002

1986-87 (Accounting year 1985-86) : Rs. 3,250

1987-88 (Accounting year 1986-87) : Rs. 4,180

1988-89 (Accounting year 1987-88) : Rs. 2,773

1989-90 (Accounting year 1988-89) : Rs. 80

1990-91 (Accounting year 1989-90) : Rs. 88

--------------

Total : Rs.18,779

--------------

The said amount represents the expenditure on payment of income tax on the income of the wife of the appellant. Therefore, the said amount should be added to the total expenditure after allowing the deductions on certain items as indicated supra. Therefore, the total amount of expenditure as found in Statement-D shall be corrected as follows: Total amount found in Statement-D

(expenditure) : Rs.1,76,994.47

The deductions to be made in respect

of items 2, 10 and 11 (-) : Rs. 30,400.00

--------------------

: Rs.1,46,594.47

Amount to be added towards income

tax paid by the wife of the appellant (+) : Rs. 18,779.00

-------------------

: Rs.1,65,373.47

-------------------

Therefore, the total expenditure of the appellant/accused and his wife during the check period will be Rs.1,65,373.47P.

43. Now the value of the wealth in proportion to the income can be calculated in the following calculation:-

Assets at the end of the check period - "A" = Rs.9,81,397.10

Deemed savings prior to the check period - "B" = Rs.2,00,000.00

--------------------

Assets acquired during the check period "A-B"="X" = Rs.7,81,397.10

Income during the check period - "C" = Rs.9,65,160.66

Expenditure during the check period - "D" = Rs.1,65,373.47

Savings that was available for investment

during the check period for acquisition of

the assets found at the end of the check

period  "E" = Rs.7,99,767.19

Disproportionate wealth acquired during the

check period "X  Y" =(-) Rs.18,390.09

Savings exceed investment. Hence, there is no disproportionate wealth.

44. In view of the above calculation, this Court comes to the conclusion that the prosecution has failed to prove that there was wealth disproportionate to the known sources of income of the appellant/accused, which he was not able to satisfactorily account for and that on the other hand, the appellant/accused has satisfactorily accounted for the alleged disproportionate wealth projected by the prosecution. The learned trial Judge has not properly appreciated the evidence in this regard and the finding of the Court below that the appellant was in possession of wealth disproportionate to the known sources of income for which he was not able to satisfactorily account, is defective, infirm and the same cannot be sustained and on the other hand, the judgment of conviction is liable to reversed and set aside.

45. For all the reasons stated, the criminal appeal is allowed and the order of the learned Principal Special Judge for CBI Cases, Chennai dated 05.10.1999 made in New C.C.No.88 of 1997 is set aside, both in respect of conviction and punishment. The appellant/accused is acquitted of the offences with which he stood charged and he is set at liberty. Fine amount collected, if any, shall be refunded. The bail bond executed shall stand cancelled.

To

1.Principal Special Judge for CBI Cases, Chennai

2.The Inspector of Police

SPE/CBI/ACB/CHENNAI

D.R.C.No.44(A)/90)

gpa asr