Crl. R.P. No. 200063/2014. Case: Tulsiram Vs The State. High Court of Karnataka (India)
| Case Number | Crl. R.P. No. 200063/2014 |
| Counsel | For Appellant: Shankar P. Hegde, Advocate for Shivanand V. Pattanashetti, Advocate and For Respondents: S.S. Kumman, Spl. P.P. |
| Judges | K. N. Phaneendra, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 227, 228, 239; Prevention of Corruption Act, 1988 - Sections 13(1)(I)(e), 13(2) |
| Judgement Date | August 27, 2015 |
| Court | High Court of Karnataka (India) |
Order:
K. N. Phaneendra, J.
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The revision petitioner has called in question the order passed by the Principal District & Sessions Judge, Bidar in Spl. C.C. No. 50/2011 in rejecting his application filed u/S 239 of the Cr.P.C. and refused to discharge the accused in the said case vide order dated 21.08.2014. The petitioner has sought before this Court to set aside the said order passed by the learned Sessions Judge.
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Before adverting to the legal and factual aspects involve in this particular case it is just and necessary to bare in mind the brief factual matrix of the case.
The records disclose that the accused has been working as First Division Assistant in Sericulture Department. On the source information received by the Deputy Superintendent of Police with regard to amassing of wealth, the Deputy Superintendent of Police attached to Lokayuktha has prepared a source report on 27.12.2008 and thereafter F.I.R. was lodged before the Karnataka Lokayuktha, Bidar Police Station in Crime No. 9/2008 on 29.12.2008 against the petitioner for the offences punishable under Sections 13(1)(I)(e) r/w Sec. 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C. Act' for short). After registration of the case the Investigating Officer obtained search warrant from the Special Court and in fact search was effectively done on 30.12.2008 and during the course of the search of the house of the petitioner at Bangalore and house of the petitioner at Bidar, the Investigating Officer has seized certain articles and also documentary evidence against the petitioner under different panchanamas. After collection of the entire materials against the accused, the accused was also called upon to submit his statement and in fact the petitioner has also submitted a detailed statement along with several documents explaining the assets, expenditure and income of the petitioner and his family members for the check period. After completion of the investigation a final report was submitted holding that the check period between 07.02.1983 to 29.12.2008 the petitioner was possessing disproportionate assets to the extent of Rs. 16,01,098/- which is amounting to excess of his known source of income to 35.94%. After filing of the charge sheet the Special Judge, Bidar, has taken cognizance and issued summons to the accused and in pursuance of the same he appeared before the Court and filed application under Section 239 of Cr.P.C. seeking his discharge on various grounds. During the course of arguments the revision petitioner and the Special Public Prosecutor filed detailed objections and also written arguments. After hearing arguments the Special Judge, Bidar, rejected the said application vide impugned orders.
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Learned counsel for the petitioner arguing at length and in detail, submitted that the learned Special Judge has not properly weighed the materials on record particularly the papers collected by the Investigating Officer which are actually in favour of the accused though not they are part and parcel of the charge sheet papers. Nevertheless in a different file the said papers have also been produced before the Court, which totally lost the sight of the learned Special Judge. It is also specifically contended that the accused has given a clear explanation for the disproportionate alleged asset to the extent of Rs. 16,01,098/- shown. It is the specific contention taken up by the accused as argued by the learned counsel that the total assets acquired by the petitioner was calculated at Rs. 20,62,918/-, the expenditure calculated was at Rs. 39,91,944/-. Therefore, the total assets and expenditure was calculated to Rs. 60,54,862/-. The total known source of income as per the prosecution itself is Rs. 44,53,764/-. Therefore it was calculated that the disproportionate asset was Rs. 16,01,098/-. It is stated that out of the said assets and expenditure if 10% margin of the benefit in the total income is provided, then the disproportionate assets will come down to hardly Rs. 11,55,722/- and that has to be explained by the accused for his discharge.
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The learned counsel further argued that the petitioner has categorically stated about his agricultural properties and how he has acquired those properties and also the agreements of sale in respect of the properties held by him and acquired the amount out of the lease agreement dated 16.06.1998, etc. but these materials have not been properly considered and appreciated by the trial Court and brushed aside the said documents only on the ground that source of those properties have not been explained by the accused.
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The trial Court also has not even looked into the income acquired by the petitioner by way of rents. Though the I.O. has reckoned the electricity bill to the extent of Rs. 53,077/- wherein it is wrongly calculated as against Rs. 10,072/- as per volume No. 7 page No. 601. This particular aspect has also not been taken into consideration while calculating the amount. The learned counsel has also argued that the affidavits filed by the tenants at page No. 195 and 196 volume nil, lease agreement at page Nos. 183, 184, 205 to 208 of the volume nil and also the statements at page No. 734 at volume No. 8 have not been looked into by the Court, which show that the petitioner has acquired a sum of Rs. 4,53,000/- by way of rents and that has not been taken into consideration by the I.O.
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It is also contended that, at the time of joining service itself the petitioner declared that he has got gold ornaments worth Rs. 2,84,680/-, silver items valued at worth Rs. 1,200/- and gold ornaments in bank locker worth Rs. 5,800/-. Though these are declared in the first A.P.R. itself, as per volume No. 3 page No. 103 and 113, the learned Special Judge has totally ignored all these aspects and no explanation has been given in the orders.
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Learned counsel also contended that the petitioner has a family business of sheep and goat rearing and his wife and mother have been doing the said business right from the beginning and they have earned lot of money particularly his wife has earned Rs. 4,90,620/- and mother has earned Rs. 23,48,681/-. In this regard the police themselves have collected the documents at page No. 68 to 110 in volume nil and the certificate issued by the competent authority at page No. 12 to 38 in volume nil and Goat Census Certificates at 39 to 58 in the schedule mentioned and panchanama conducted by the I.O. and the photograph at page Nos. 63 to 67 and the certificate issued by the Veterinary Deputy Director at page Nos. 1 to 8 and the statements and affidavits of the witnesses at page No. 103 to 138 in volume No. 3 have also not been looked into by the learned Special Judge to consider whether the said income has properly been taken into consideration by the I.O. or not.
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It is further argued before the Court that the expenditure of the family is taken as Rs. 9,00,000/- including the mother and the wife of the petitioner. Mother's income has not been taken into consideration by the I.O. but the expenditure of the mother has been added to the petitioner. Therefore, when expenditure alone is taken income also ought to have been taken to some extent. But, that has not been taken into consideration and this is also evidenced by the Investigation papers itself not considered by the trial Court. At least if expenditure of mother is not added to expenditure, expenditure would be reduced by Rs. 3,00,000/-. Such benefit is not at all given.
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It is specifically contended further that the petitioner has entered into an agreement to sell a land measuring 1 1/2 acre at Bidar for a sum of Rs. 96.00 lakhs and received an amount of Rs. 60.00 lakhs as advance pertaining to this document the I.O. has also collected lot of documents which are at page No. 183 in volume No. 3 page No. 161 to 164 in volume nil and statements of the witnesses have also been recorded by the I.O. but these documents have not been looked into to ascertain prima facie whether there are any substance in the said documents but the learned Judge has not looked into but in one sentence stated that the accused has not...
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