State of Karnataka Vs Syed Mobin S/O Syed Ismail

THIS CRL.A. IS FILED U/S. 378 (1) & (3) OF THE CR.P.C PRAYING TO GRANT LEAVE TO THE APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 01.04.2017, PASSED BY THE PRINCIPAL SESSIONS JUDGE & SPECIAL JUDGE KALABURAGI, IN Spl. CASE No.05/2015, WHEREIN THE TRIAL COURT HAS ACQUITTED THE RESPONDENT FOR THE OFFENCE UNDER SECTION 13(1)(e) R/W. 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988. B. SET ASIDE THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 01.04.2017, PASSED BY THE PRINCIPAL SESSIONS JUDGE & SPECIAL JUDGE KALABURAGI, IN SPL. CASE No.05/2015, WHEREIN HAS ACQUITTED THE RESPONDENT FOR THE OFFENCE UNDER SECTION 13(1)(e) R/w. 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988. C. CONVICT AND SENTENCE THE RESPONDENT/ACCUSED FOR THE OFFENCE UNDER OFFENCE UNDER SECTION 13(1)(e) R/w. 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE M G UMA)

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The State-represented by Lokayukta Police is impugning the judgment and order of acquittal dated 01.04.2017 passed by the learned Special Judge (Lokayukta) and Principal Sessions Judge, Kalaburagi, (hereinafter referred to as ‘Trial Court’) acquitting the respondent-accused for the offence punishable under

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Sections 13(1) (e) r/w Section 13(2) of the Prevention of

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Corruption Act, 1988, (for short P.C Act’).

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The facts of the case in brief are that, the Deputy Superintendent of Police, Lokayukta Kalaburagi, submitted the source report as per Ex.P106 to the Superintendent of Police, Lokayukta Kalaburagi, suggesting that, the accused who joined the service in Land Army Corporation as Assistant engineer in the year 1980, has amassed wealth disproportionate to known source of income during the check period from 01.01.1992 to 07.07.2009. It is stated that, his total assets during the check period is estimated at Rs.1,25,92,627/- and the expenditure incurred by him is Rs.81,24,192/-. Thus, the total assets and expenditure amounts to Rs.2,07,16,890/-, while the income of the accused from all known source of income is only Rs.93,56,281/-. Thus, he was having disproportionate assets worth Rs.1,13,60,538/- which is 121.42% more than the income from known source. Thereby the accused has committed the offence as

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alleged. After considering the source report, the Superintendent of Police, Karnataka Lokayukta,

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Kalaburagi, authorized the Deputy Superintendent of Police, Lokayukta, to register the FIR and investigate the matter. Accordingly, Crime No.8/2009 came to be registered against the accused for the above said offence. The investigation was undertaken and final report came to be filed. The learned Special Judge took cognizance of the offence and registered the case in Special Case No.5/2015. The accused appeared before the Trial Court pleaded not guilty, and claimed to be tried.

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The prosecution examined PWs.1 to 9, got marked Exs.P1 to P117 and identified MOs.1 and 2, in support of its contention. Accused denied all the incriminating materials available on record in his statement under Section 313 Cr.P.C., but has not led any evidence in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that, the prosecution is not

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successful in proving the guilt of the accused beyond reasonable doubt and accordingly passed the impugned judgment by acquitting the accused. Being agreed by the same the Lokayukta Police, is before this Court in this appeal.

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Heard Sri. Subhash Mallapur, learned Special Public Prosecutor for the appellant-Lokayukta Police and Sri. Avinash A.Uploankar, learned counsel for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by

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learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the judgment of the Trial Court acquitting the accused suffers from infirmities and calls for interference by this Court?"

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My answer to the above point is in the

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'Negative' for the following:

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REASONS

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It is the contention of the prosecution that, the accused is a public servant who joined Land Army Corporation as Assistant Engineer in the year 1980 and worked at various places. During the check period from 01.01.1992 to 07.07.2009, even though his total income from known source is only Rs.93,56,281/-, he is in possession of assets worth Rs.1,25,92,627/- and incurred expenditure of Rs.81,24,192/-. Thus, he has amassed disproportionate assets to the tune of Rs.1,13,60,538/and thereby committed misconduct and hence, is liable for conviction.

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In order to prove its contention, the prosecution examined PW.1-mahazar witness to mahazar Ex.P1, who deposed before the Court that, he was summoned by Lokayukta Police and a mahazar was drawn in the house

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of the accused. The household articles, gold ornaments and silver articles were found in the house and accordingly the mahazar as per Ex.P1 was drawn. The gold ornaments and silver articles found in the house of accused are identified as MOs.1 & 2.

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PW.2 is the goldsmith, who deposed before the Court that, he was summoned by Lokayukta Police and he was present when the raid was held in the house of the accused. He weighed the gold ornaments which were found in the house of accused weighing 78.500 grams and valued it at Rs.91,500/-. Similarly, the silver articles weighing 670 grams were found and the same is valued at Rs.5,500/-.

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PW.3-is the mahazar witness to the mahazar Ex.P3 drawn at Ali Plastic Industry situated at Kapanur. The witness stated that, on 07.07.2009, he was summoned by Lokayukta Police and along with them he and CW.8 visited Ali Plastic Industry. A search was held in

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the presence of the Manager and the mahazar as per Ex.P3 was drawn. Later, they visited Suleman Steel Industries and a mahazar as Ex.P4 was drawn. The witness stated that, the raw materials which were found at the factory was valued at Rs.3,00,000/- and the factory was valued at Rs.25,00,000/-. The witness also stated that, he along with co-pancha and Lokayukta Police went to the Dolphin School, where the Head Master was present. After inspection of the school, the mahazar as per Ex.P5 was drawn. The furniture and fixtures found in the school were valued at Rs.13,43,862/-.

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PW.4-is the Assistant Executive Engineer, who valued the house belonging to the accused situated at Vakkalgera in Kalaburagi at Rs.10,54,302/- and submitted his report as per Ex.P5. The witness stated that, he also visited the house at Barray Hills bearing No.127 situated on Plot No.23/2. The house was measuring 761 square feet in the ground floor. He valued the house at Rs.5,60,440/- and submitted his report as per Ex.P96. The

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witness stated that, he also visited the Dolphin School situated at Jilanabad. The building was consisting of main floor and first floor. He valued the building at Rs.19,64,403/- and submitted the report as per Ex.P7.

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The witness stated that, he also visited the Ahmed Premier Education School, which was also consisting of ground and first floors. The ground floor was measuring 1911 Square feet, while the first floor was measuring 761 Square feet. He valued the building at Rs.5,80,658/- and submitted the report as per Ex.P98. The witness stated that, he also visited and valued the building which is attached to Ahmed Premier Education School consisting of classrooms measuring 1540 Square feet with a compound wall. He valued the same at Rs.6,06,839/and submitted the report as per Ex.P98.

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PW.5 deposed before the Court that, he has furnished information regarding insurance particulars for

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the two wheeler of the accused to Lokayukta police as per

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Ex.P99.

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PW.6 deposed that, as per the request made by the Lokayukta Police, he valued the vehicle maintenance expenses of four vehicles belonging to the accused as evidenced by Exs.P100 to P103. The witness stated that, the Regional Transport Officer, has issued the report as per Ex.P104 in respect of the vehicle bearing No.CNP/2747. During cross-examination, the witness stated that, he had not verified the meter reading of the vehicle and its condition before valuing the maintenance expenses.

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PW.7-is the Deputy Superintendent of Police, Lokayukta. He deposed before the Court that, he received credible information that, the accused being the public servant amassed wealth disproportionate to his known source of income and accordingly prepared the source report as per Ex.P106 and submitted the same to the

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Superintendent of Police, Lokayukta. He also states regarding registration of the FIR and conducting investigation.

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PW.8-is the Investigating Officer, who

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conducted further investigation, collected various documents referred to by him in the evidence, recorded statements of various witnesses. He found that, the accused had amassed wealth disproportionate to his known source of income, which was 121.42% more than the income from known source. Therefore, he sought for sanction to prosecute the accused. He received the sanction from the authorized officer as per Ex.P117 and filed the final report.

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Pw.9-is the Superintendent of Police, Lokayukta Kalaburagi, who has also carried out investigation in part, and deposed that, the accused has produced schedule No.1 to 16(B), and that, he collected other materials and handed over the further investigation to CW.133.

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With these materials on record, the prosecution contended that, the accused being the public servant had amassed wealth disproportionate to his known source of income, which was valued at 121.42% to his known source of income and thereby committed the offence as stated above.

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The prosecution has valued the various assets of the accused and his family members at Rs.1,11,12,685/-and one of the property referred to by the investigation is Sy.No.37/3/4 of Vakkalagera Village in Kalaburagi and valued the same at Rs.16,13,306/-. The

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materials on record disclose that, the property was purchased by Mansoor Mohd. Yasin and and Imtiyaz S/o: Bakar Hussain in two plots, which were formed in an agricultural land without converting the same into non agricultural purposes. Even according to the prosecution,

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the land in question was not standing in the name of the

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accused or his family members. It has valued the building standing on the said property at Rs.16,13,306/-. However,

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there are no convincing materials to accept the contention

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of the prosecution that, the said building was constructed by the accused by incurring the expenses. Under such circumstances the contention of the prosecution in that regard cannot be accepted.

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The prosecution contended that, the school building where the Premier Educational and Charitable Trust, is running the school belongs to the accused. However, the materials on record disclose that, the school in question was being run by a trust consisting of the accused, his father, wife and three others as trustees, which was registered on 20.10.2012. It is stated that, the school was being run through the donations collected from the donors and the fees collected from the students. No convincing materials are placed before the Court to hold that this property worth Rs.13,43,862/- exclusively belongs to the accused who invested his money.

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The next item highlighted by the prosecution is Ali Plastic Industry, which is standing in the name of the wife of the accused. It is brought on record that, the wife of the accused has submitted separate income tax returns for the year 2001 to 2008-09 in the name of Ali Plastic Firm. The materials on record also disclose that, the wife of the accused had availed loan of Rs.18,45,000/- from KSFC. Under such circumstances, it cannot be said that, the loan of Rs.18,45,000/- is the income of the accused. The materials on record disclose that, the wife of the accused had borrowed another sum of Rs.5,60,000/- and purchased the property by paying 8,00,000/-, and it was she who was paying the EMI’s to KSFC. This fact is evidenced from the income tax returns submitted at an undisputed point of time referred to above.

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The prosecution has taken into account a sum of Rs.28,70,290/- as investment made by the accused to acquire Suleman Steels by Ali Plastic Industries. But, no

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satisfactory materials are placed before the Court to substantiate the same.

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PW.8-the Investigating Officer admitted in his evidence that, Ali Plastic Industry is taken over by Suleman Steels. The accused is shown as GPA holder, however no convincing material is placed on record to take into account this amount of Rs.28,70,290/- as the investment by the accused.

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It is the contention of the accused that before joining the duty as Assistant Engineer in the year 1980, he was working on contract basis from 11.05.1988 till 01.01.1992, and during the said period he has earned an income of Rs.4,02,381/-. The investigating officer has not denied this fact and therefore there is no reason to exclude the said figure as the income of the accused before the check period.

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The prosecution has calculated the family expenditure during the check period at Rs.13,57,766/-. It

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is contended by the accused that, his family is having agricultural land growing food grains, vegetables etc., Under such circumstances, the expenditure towards maintaining the family will be much less and the same was not taken into consideration by the Investigating Officer in arriving at the figure as Rs.13,57,766/- The Trial Court has deducted reasonable amount of Rs.5,43,106/- from the total expenditure taken into consideration by the prosecution which is quite reasonable.

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It is the contention of the accused that, he had obtained hand loan of Rs.11,70,000/- which reflects in the income tax returns of the accused. I do not find any reasonable explanation for not considering the same as income of the accused. The accused has disputed the deduction of Rs.36,393/- towards income tax, as the income from salary was taken into consideration only with respect to the net salary during the check period. I find considerable force, in such contention and the said amount

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of Rs.36,393/- is to be deducted from the total expenditure shown by the prosecution.

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The prosecution has shown Rs.54,117/- as expenditure paid towards telephone bills, but the bills stand in the name of one Abdul. No materials are placed before the court by the prosecution to show that the said Abdul is the member of the family of the accused. Similarly, the prosecution has taken into consideration an amount of Rs.41,608/- as expenses to dig the bore well. The said bore well was dug in the land belonging to one Imtiyaz Ali, he has also not shown as the member of the family of the accused, and there are no materials to connect the accused to the land in question. These amounts are required to be deducted from the total expenditure of the accused shown by the prosecution.

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The prosecution has taken into consideration

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the value of the house standing in the name of the wife of the accused situated at Bilalabad at Rs.10,92,302/-. It is

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the contention of the accused that, since the accused himself is the Engineer, he has personally supervised the construction and made bulk purchase of the materials and therefore 20% of the value of the building is to be deducted. The Trial Court has deducted 10% of the value towards the contractor’s commission, which was saved by the accused, I do not find any illegality in the same.

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The Trial Court, after taking into consideration all these facts and circumstances arrived at the conclusion that the total assets held by the accused and his family members during the check period at Rs.34,61,767/- and the total expenditure incurred is Rs.74,12,305/-. Therefore, the total income and the expenditure of the accused taken into consideration by the Trial Court is 1,08,74,072/-. The total income of the accused taken into consideration by the Trial Court is Rs.97,58,662/however, the Trial Court has not taken into consideration the loan amount of Rs.11,70,000/- standing in the name of the wife of the accused. If the said amount is included

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as income of the accused, the total income would be Rs.1,09,28,662/-. In that view of the matter, the income of the accused, exceeds the total expenditure and therefore it cannot be said that the accused has amassed wealth disproportionate to his known source of income and committed the offence as stated above.

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In view of the above, I do not find any reason

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to interfere with the impugned judgment of acquittal passed by the Trial Court. Accordingly, I answer the above point in the negative and proceed to pass the following;

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ORDER

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The appeal is dismissed.

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Registry is directed to send back the Trial Court

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records along with the copy of this Judgment.

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Sd/(M G UMA) JUDGE

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MSR List No.: 1 Sl No.: 15 CT:PK