IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16/09/2002 CORAM THE HON'BLE MR. JUSTICE MALAI.SUBRAMANIAN CRL.APPEAL NO. 19 of 1996 R. Sebastian .. Appellant -Vs- State rep. By Inspector of Police, Vigilance and Anti-Corruption, Madurai (Cr.No.7/88) .. Respondent Appeal filed under Sec.374 Cr.P.C read with 25 of Prevention of Corruption Act against the conviction and sentence passed in S.C.No.1/95 on the file of Special Judge (I Addl. District Judge-cum-Chief Judicial Magistrate), Madurai dated 9.1.1996. For appellant : Mr. B. Kumar Senior Counsel for Mr.R. Loganathan and Mr.R. Rajarathinam For respondent : Mr.E. Raja Addl. Public Prosecutor :JUDGMENT The accused in Sessions Case No. 1/1995 on the file of the Special Judge, Madurai appeals against his conviction and sentence to undergo RI for five years and to pay a fine of Rs.10,000/-, in default to undergo RI for six months for the offence punishable under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988, on the allegation that between 1.1.1976 and 30.12.1988 as Deputy Surveyor and as Sub-Inspector of Surveys, the accused acquired property worth about Rs.15,45,144.50 disproportionate to his known sources of income. The brief facts required to dispose of the appeal are as follows:- 2. The appellant though joined Government Service in the year 1962, worked as Deputy Surveyor and then Sub-Inspector of Surveys from 1.1 .1976 to 31.12.1988. During that period, he acquired wealth worth about Rs.41,42,149.50 as per statement No.2 in Ex.P.53, while the properties standing in the name of the appellant prior to the check period i.e. 1.1.1976 was only worth about Rs.16,711 as per statement No.1 in Ex.P.53. He received the income by way of salary and through other properties including rental income and agricultural income as well as bank loans totalling Rs. 28,79,526/- between 1.1.1976 and 31.12 .1988 as per statement No.3 in Ex.P.53. His expenditure for the family maintenance and other commitments during 1.1.1976 to 31.12.1988 amounts to Rs.2,99,232/- as per statement No.4 in Ex.P.53. The disproportionate assets acquired during the check period as revealed in the statement No.6 to Ex.P.53 is Rs.15,45,144.50. 3. P.W.2 Rev. Fr. Henry Amirtharaj, Director of Society of Marry, Madurai sent Ex.P.18 to the Director of Inspection (Investigation), Income tax Department,Madras-34 alleging that the appellant was getting a plenty of black money and was also doing real estate business and amassed plenty of wealth. Ex.P.18 was forwarded to the Inspector General of Police, CBI. The Office seal of the Inspector General of Police,CBI., bears the date 28.10.1986 and Ex.P.18 was dated 23.10.1986. P.W.19 Inspector of Police, Directorate of Anti Corruption, Madurai received the complaint and started his preliminary enquiry in Complaint No.29/1987 on 13.2.1987. After completing his preliminary enquiry he submitted his report. The Director of Vigilance and Anti Corruption by his order dated 3.7.1987 ordered P.W.19 to conduct a detailed enquiry. After a detailed enquiry as per the orders of the Directorcum-Vigilance Commissioner made in No.1802/ECII/88-2 dated 30.3.1988 , a case was registered by P.W.19 on 30.7.1988 in Crime No.7/88 under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act. The printed First Information Report prepared by P.W.19 in this case is Ex.P.49. 4. The Superintendent of Police, Southern Range, Directorate of Vigilance and Anti Corruption, Madras issued Ex.P.48 authorisation dated 10.1.1989 under section 17 of the Prevention of Corruption Act, 1988 to P.W.19 authorising him to investigate the Case in Crime No.7/88. He also issued Ex.P.47 on the same day unde r Section 18 of the Act empowering P.W.19 to inspect the Bankers' book relating to the accounts of the appellant and of other persons suspected to be holding money on behalf of the appellant and take certified copies of the relevant entries therefrom. 5. P.W.19 examined P.Ws.1 to 18 and recorded their statements. He also estimated the market value of the properties held by the appellant in his name and in the name of his wife on his behalf, through P.W.3 – Executive Engineer, Public Works Department, Madurai. He also received Ex.P.50, the property statement of the appellant from his higher officials and also enquired about the appellant in the Offices, where he worked and collected his salary details Ex.P.51. Since the wife of the appellant was also working as a teacher, he assessed her income also. He gathered details about the inspection made by the Income Tax Department on 21.8.87. He verified the Income Tax Returns submitted by the accused and his wife from P.W.8 – Assistant Director of Income Tax (Investigation), Madurai. The income derived from the buildings and the expenses incurred by the appellant were also taken into account by P.W.19. 6. He examined the appellant and ascertained that he was running a real estate business also. The appellant did not produce any account of income or expenditure regarding his real estate business. Since P.W.19 came to know that there was some truth in the claim of the appellant that he was running a real estate business, he contacted the Income Tax Department and gathered details regarding the income derived by the appellant through real estate business and took them also into account. He examined P.Ws.5,6 and 7 who are tenants of the house properties belonging to the wife of the appellant. He then examined P.W.9 – another tenant of the appellant. P.W.14 the Bank Manager, who gave a loan of Rs.7 lakhs for the constru ction of a building for the purpose of housing the Branch of Indian Overseas Bank on rent, was also examined. P.W.19 then prepared Statements 1 to 6 in Ex.P.53 and sent copy of the same to the appellant and his wife with notices Exs.P.54 and P.55. The explanation offered by the appellant and his wife is Ex.P.56. The details of expenses given by the appellant in Ex.P.57 were taken after taking into account all the incomes and expenditure of the appellant and his wife. P.W.19 found out that the appellant was in possession of properties and wealth worth about Rs.15,45,144/- over and above the known sources of income and submitted his detailed report on 30.11.93 to the Director of Vigilance and Anti Corruption. He also sent a report to the Assistant Director of Surveys, Madurai requesting sanction to prosecute the appellant. P.W.1, the then Assistant Director of Surveys, Madurai, after considering the materials, accorded Ex.P.1 – Sanction order, to prosecute the appellant. After completing investigation, P.W.19 filed a final report against the appellant on 23.12.94 for the offence punishable under Sec.13(2 ) read with 13(1)(e) of Prevention of Corruption Act. 7. After the evidence of the prosecution was recorded by the trial Court, the accused was questioned under Sec.313 Cr.P.C. The plea is one of denial. He also filed a written statement along with his reply. His contention is that P.W.19, being the complainant, took up investigation and his investigation was one sided. He would further submit that he was having real estate business and derived income therefrom and his wife also though working as a teacher in a school earned money by entertaining tutions. According to him, the first property in Statement No.2 was purchased in 1970, but this was taken into consideration as if, the building was constructed during the year 1982-83 . As regards Item Nos.3 and 4 in Statement No.2,his contention is that his wife acquired the properties through a partition effected on 12 .6.81 as per Ex.P.23, but the Investigating Officer took it as if the construction was made during the year 1984-85. With regard to item Nos.5 and 6 in Statement No.2, his contention is that the building was constructed out of the income derived from his wife's properties, whereas the Investigating Officer took it as if it was constructed during the year 1986-87. He also submits that Item No.11 in Statement No.2 was constructed by obtaining a loan of Rs.7 lakhs from bank, but without any reason, the Investigating Officer estimated the cost of the construction to Rs.17,80,000/-. He would further say that item No.12 in Statement No.2 was constructed only for Rs.90,000/- but the estimate was wrongly made as Rs.1,30,000/-. He also disputes the estimation of advance payments made to him by the tenants of the shops described as item No.2 in Statement No.3. He also disputes the estimation made by P.W.3. 8.His wife was examined as D.W.1. According to her, her mother was living with her from 1965 after the death of her father and all the income derived by her mother from the landed properties were given to her. She also claims that she is an Income Tax Assessee and Door No.2 25 in Bethaniapuram was constructed in the year 1972. The house warming ceremony invitation is Ex.D.6. Ex.D.7 is the endorsement made by the Electricity Board Officials for giving electric supply to the house. She would further say that Door No.225-A was purchased from out of the properties given to her by her mother. Door No.60, Bethainapuram, Samikannu Street also according to her was constructed from her own income and they were not constructed from out of the income of the appellant at all. She also disputes the valuation of the properties made by P.W.3. 9.There is no dispute that the appellant was a public servant during the check period since admittedly he was working as a Deputy Surveyor and later as Sub Inspector of Surveys. Therefore, there is no difficulty in holding that the Prevention of Corruption Act applies to him. This fact also has not been disputed by the appellant. On facts, the dispute are two fold; the first one is, the building constructed even prior to the check period and constructed during the check period out of the income of the wife of the appellant were taken into account while estimating the value of the property acquired by the appellant; the second contention is that the value of the properties were inflated and the estimation made by P.W.3 is improper. 10. The learned Senior Counsel Mr.B. Kumar arguing on behalf of the appellant submits that Item Nos.2,11 and 12 entered in Statement No.2 in Ex.P.53 alone were standing in the name of the appellant and the appellant cannot be held responsible for the acquisition of the property by his wife, since his wife had her own individual income through her landed properties and also by way of salary as she is admittedly working as a teacher. 11. While dealing with Item No.2 in Statement No.2, which is a house with two floors at Door No.225, Bethaniapuram, II Street, Madurai, the learned Senior Counsel submits that the property was wrongly shown to have been constructed during the year 1981-1982, but actually the construction was made as early as 1973 itself, as can be ascertained from D.6 and D.7. Ex.D.6 is the Invitation printed for the house warming ceremony of a new house in Bethaniapuram constructed by the appellant and his wife. The invitation reveals that the ceremony was fixed on 9.6.73. Ex.D.6 does not bear any door number.P.W.18, Head Clerk, House Tax Branch, Corporation of Madurai says that the house bearing Door No.225 in Bethaniapuram, Madurai stands in the name of the appellant and the assessment for the house tax was made by the assessor Annamalai in the year 1984 as per Assessment No.33591. While cross examining the witness, no questions were asked challenging the year of assessment. The only question put to the witness is, during investigation the returns submitted by the appellant and his wife to the Income Tax Department were shown to him and the payment of the tax to the house was shown in the returns. Except this cross examination, the testimony of P.W.18 was not at all challenged. In case the contention of the appellant that Door No.225 was constructed during the year 1973 is true, then I am afraid, the Municipal Corporation would not have failed to assess the building for tax for nearly 10 years. Further according to P.W.18, three houses standing in the name of the appellant and the other three houses standing in the name of his wife were assessed for house tax. The years of assessment run from 1980-81 to 1986-87. There is absolutely no indication about the construction of houses in the year 1973 and its assessment for house tax. Therefore, I am unable to uphold the contention of the learned Senior Counsel that Door No.225 was constructed as early as in 1973 merely basing on Ex.D.6 which is only an invitation that can be printed at any time. 12. The appellant also relied on Ex.D.7, a request in the form of an application to the Assistant Engineer, Electricity Board for furnishing the date on which electric supply was given to the house bearing Door No.225, Bethaniapuram. There is an endorsement below this application bearing the seal of Assistant Engineer/Urban/North/TNEB/ Arasaradi, Madurai along with the signature dated 20.2.1995. The endorsement is to the effect that the service connection was effected on 12.1.1976. In the absence of examining any of the personnel of the Electricity Board, Ex.D.7 cannot be taken as a true and genuine document. This endorsement alone does not in any way help the appellant to prove his claim that Item No.2 of Statement No.2 in Ex.P.53 was constructed in the year 1973. If really the construction was completed in the year 1973, I am at a loss to understand as to why the appellant working in the Survey Department could not get the service connection for three years. As against the evidence of P.W.18 and the evidence of P.W.3 and Ex.P.19 the valuation estimate showing the construction during the year 1981-1982, the evidence of D.W.1 and Exs.D.6 and D.7 cannot be accepted. The property statement submitted by the appellant, which has been marked as Ex.P.50 did not show any acquisition during the year 1973 though he was in service from 1962. Therefore, I hold that the construction of Item No.2 in Statement No.2 was made only during the year 1981-1982 as mentioned therein and not in the year 19 73 as claimed by the appellant. 13. The appellant then disputes the value of Item No.3 in Statement No.2 in Ex.P.53. This is a house in Door No.4, First Street, Bethaniapuram inherited by his wife from her mother. The said property was acquired through Ex.P.23 – Partition Deed by the wife of the appellant. The value on the date of acquisition was said to be Rs.39,625/-, but according to P.W.3, the value of the property was Rs.1,68,000/-, since there were additional constructions in the I floor and II floor with water tank and headroom in the III floor also. P.W.3 has noted in Ex.P.20 about the additional constructions. Hence the increase in value. Though the appellant denies the additional constructions on the ground that Ex.P.23 – Partition Deed itself speaks about the I floor, still the additional new constructions were noticed over and above the then existing construction as per Ex.P.20. Hence the prosecution has established that the value mentioned in Statement No.2 is correct. 14. The next attempt by the appellant was that items 5 and 6 in Statement No.2 were constructed by his wife from out of her own income and the income she derived from her mother's property. The appellant says that the cost of the building in item Nos.5 and 6 was only Rs.64,000/- and disputes estimation of Rs.4,38,000/-. Insofar as item No.5 is concerned, there is no problem, but item No.6 is a three storied construction during the year 1986-87, according to the estimation made by P.W.3 in Ex.P.21. Ex.P.21 – the valuation report says that the construction was made in the year 1986-87 having ground floor and I floor with a water tank in the II floor. There were two houses and five shops in the ground floor and the I floor consists of five houses as per Ex.P.21. It is shocking to hear that such a massive construction could have made done by the appellant for a meagre amount of Rs.6 4,000/- in the year 1986-87. He has not disputed the year of construction but only the value of the construction. Therefore, I hold that the contention of the appellant has to necessarily fail. 15. The learned Senior Counsel mainly disputes item No.11 of Statement No.2 in Ex.P.53. According to the prosecution, it was a four storied construction with Shopping Complex and bank Building at Town Survey Nos.61 to 64 in Ward No.2, East Veli Street, Madurai constructed during 1986-87. The value of construction was estimated as Rs.17,80,0 00/-. According to the appellant, the construction was made only for an amount of Rs.9,80,000/- during 1985-86 and the value of the building was boosted. P.W.14 – Chief Officer of the Indian Overseas Bank, Madurai speaks to the fact that on an estimation of Rs.9.20 lakhs, a loan of Rs.7 lakhs was given to the appellant and his wife for constructing this building. The learned senior counsel submits that the income derived by way of rent might have been shown in the Income Tax Returns. May be the income derived by way of rent has been shown in the Income Tax Returns, but we are concerned only with the value of the building to find out whether the assets held by the appellant are proportionate to his known sources of income. Ex.P.22 is a valuation report filed by P.W.3 Executive Engineer, P.W.D. The building consists of Cellar Floor, Ground Floor, I floor and II floor. It is a framed structure. The details of measurement were shown in Ex.P.22. Since it is a four storied building, with shopping complex and housing the bank also as shown in the map annexed with Ex.P.23, I am of the view that the construction could not have been completed by spending Rs.9 lakhs at all. 16. Coming to Item No.12, it is a dwelling house at Door No.6, Bastina Nagar, II Street, Annanagar Road during 1982. The plinth area is 1 300 sq.ft. The cost of construction has been estimated to Rs.1,30,00 0/- at the rate of Rs.100/- per sq.ft, which cannot at any rate be said to be high in 1982. Moreover, P.W.19 in his evidence has stated that he took into consideration the incomes derived by the appellant in his real estate business and also the statement of accounts given by him with regard to the expenditures. As per Ex.P.53, the excess wealth proved to have been acquired by the appellant comes to Rs.15,45,14 4.50. The prosecution also took care to exclude the acquisition of the appellant's wife and her income separately. On facts, I hold that the prosecution established that the appellant was holding assets disproportionate to his known sources of income. 17. The learned Senior Counsel Mr. B. Kumar also raised several legal contentions. The first one is that there was no specific authorisation for P.w.19 under Sec.17 of the Act to investigate into the offence and even assuming that he was authorised by the Superintendent of Police to investigate, the authorisation does not reveal the specific reasons for authorising P.w.19 to investigate the crime. In support of his contention, he also relied on a ruling of the Apex Court reported in State of Haryana Vs Bhajan Lal (A.I.R.1992 SC 604). 18. Sec.17 of the Act no doubt empowers only Deputy Superintendent of Police or a police Officer of equivalent rank to investigate into an offence punishable under the Act without any special Order of the Magistrate, but the proviso empowers a police officer not below the rank of the Inspector of Police to investigate into the offences under the Act if he is authorised by the State Government in this behalf by general or special order and insofar as Sec.13(1)(e) is concerned, the further stipulation is that the offence shall not be investigated without the order of a Police officer not below the rank of Superintendent of Police. The period covered in this case is from 1.1.76 to 3 1.12.88. The first information report was lodged on 30.7.88. The new Act came into force on 9.9.88. Authorisation to investigate was issued on 10.1.89 as per Ex.P.48. Therefore, though the period covered includes the period prior to coming into force of the new Act, there is no variation between Sec.17 of the New Act and Sec.5(A) of the old Act of 1947. There also the very same provisos are available. The first proviso to Sec.17 of the new Act and the first proviso to Sec.5(A) of the old Act empowers a police officer not below the rank of Inspector of Police to investigate any offence under the Act if he is authorised by the State Government by General or Special Order. The learned Additional Public Prosecutor produced G.O.Ms.No.269/1990 dated 4.6.90 which is an amendment to the Notification made in S.R.O.No.3 66 of 1966 dated 10.1.66. G.O.Ms.No.80 Public (Services-B) Dept dated 10.1.66 which is the Notification referred to in G.O.Ms.No.269/90 authorises all the Inspectors of Police of the Directorate of Vigilance and Anti Corruption, Madras to exercise the power of investigation and arrest mentioned in that proviso, only excluding the power of arrest without a warrant any Officer on the pay scale maximum of which is about Rs.700/-per month. G.O.No.269 dated 4.6.90 only amends that G.O whereby the power of arrest is made available to the Inspector of police authoriesed to investigate only of an officer who does not belong to Groups A and B on the pay scale maximum of which is about Rs.1,950/-per month. There is no dispute in this case regarding the power to arrest the appellant. The only contention is that P.W.19 – the Inspector of Police cannot investigate. Since the Government has given a general authorisation as early as on 10.1.66, it cannot be said that P.W.19 cannot investigate. 19. The further question is as to whether it is incumbent on the Superintendent of Police, who authorises the investigation under the 2nd proviso to Sec.17 to give the reasons for specifically authorising a particular officer. The learned senior counsel relies on the ruling of the Apex Court aforementioned. The relevant passage is: "In the present case, there is absolutely no reason, given by the S. P in directing the SHO to investigate and as such the order of the S. P is directly in violation of the dictum laid down by this Court in several decisions which we have referred to above. Resultantly, we hold that the third appellant SHO is not clothed with the requisite legal authority within the meaning of the second proviso to Section 5A(1) of the Act to investigate the offence under clause (e) of Section 5(1) of the Act". It was a case where the Station House Officer who was a Sub Inspector of Police was authorised by the Superintendent of Police while there was no general authorisation by the State Government. A reading of Paragraph – 134 of the very same judgment will clarify the situation. The Station House Officer was not a designated officer to investigate. Therefore, Their Lordships would hold that "It is, therefore,clear in the light of the above principle of law that the Superintendent of Police or any police officer of above rank while granting permission to a non-designated police officer in exercise of his power under the second proviso to Section 5A(1), should satisfy himself that there are good and sufficient reasons for doing so". It has further been held that "In this connection, it is worthy to note that the strict compliance with Section 5A(1) becomes absolutely necessary, because Section 5A(1 ) expressly prohibits police officers, below certain ranks, from investigating into offences under Sections 161, 165 and 165A, IPC and under Section 5 of the Act without orders of Magistrates specified therein or without authorisation of the State Government in this behalf and from effecting arrests for those offences without a warrant". 20. The conspectus of the above ruling of the Apex Court only shows that when a non-designated police officer is authorised by the Superintendent of Police, he must assign valid reasons to entrust the investigation with such police officer of a lower