R. Janakiraman vs State Of Tamil Nadu, Through Cbi, Spe, ...

2. The case of prosecution, in brief, was as follows :-

23] took up the case for investigation and obtained a warrant for inspection of the appellant's house No. 16, North Colony, Railway Quarters, Dindigul, from the Chief Judicial Magistrate, Chennai. On 29.5.1986, PW-23 along with his party and two independent witnesses went to the house of the accused. Appellant was not present but his son was present. The search was commenced at 8 A.M. The appellant came around 11.30 A.M. and his wife came around 2.45 P.M. There were three steel almirahs kept in the house of the appellant and on opening them with the keys provided by the appellant, a sum of Rs. 2,94,615/- in cash was found in ten different containers (biscuit tins, briefcases, etc.,) which was seized. Certain documents were also seized.

2.3) As per the charge-sheet dated 18.5.1987, the check-period was 1.5.1976 to 29.5.1986 and the value of the assets held by the appellant at the beginning of the check period (1.5.1976) was Rs.13,449/17; and the value of the total assets of the appellant at the end of the check period (as on 29.5.1986) was Rs. 6,69,852/- as under:-

By deducting the said amount of Rs. 2,06,301.18 from Rs. 6,69,852/-, the value of the assets acquired by the appellant beyond his known sources of income was found to be Rs.4,63,551.60. Thus the charge was that the appellant was in possession of assets of the value of Rs.4,63,551/60 in excess of his known sources of income which he could satisfactorily account and thereby he committed an offence with section 5(1)(e) of the Act punishable under section 5(2).

3) The explanation offered by the appellant (as gathered from the statement under Section 313 Cr.P.C., exhibited documents and written arguments) was as follows :-

4. The special court after considering the evidence came to the conclusion that even if all other explanations and contentions of the appellant were accepted, assets to an extent of Rs.3,05,985.39 remained unaccounted and unexplained. It accepted the claim of the accused that the total of assets as on 29.5.1986 was Rs.6,41,112.78. It also accepted his claim that the value of assets as on 1.5.1976 was not Rs.13,449.17 but Rs.63,198.61 (in calculations, wrongly taken as Rs.73,759/31 by the Special Court). It also accepted certain other income which had not been taken into account by PW-23, namely, Travelling Allowance (Rs.25,922.60), bonus (Rs.8,000/-), interest on FDs (Rs.91,666.25 as against Rs.57,583.91 considered by PW-23). It further accepted the claim of the accused that the value of the Salem house was only Rs.80,000/- (as against Rs.1,13,042.79 assessed by PW-23). It, however, rejected the explanation relating to loans of Rs. 2,50,000/- allegedly taken from PWs-11 & 15 and the borrowings aggregating to Rs.40,000/- from relatives. It held that the prosecution had proved that the appellant possessed assets in excess of all known sources of income to an extent of Rs.3,05,985.39 and by raising the presumption that such assets were procured by illegal means by misusing his official powers and influence, found him guilty and convicted him under section 5(1)(e) read with section 5(2) of the Act. The appellant was sentenced to undergo imprisonment for one year and pay a fine of Rs.1,000/- and, in default, to undergo rigorous imprisonment for four months. The cash recovered (Rs.2,94,615/-) was ordered to be confiscated.

5. Feeling aggrieved, the appellant filed an appeal before the High Court [Crl. Appeal No. 127 of 1993]. By judgment dated 21.01.2000, the High Court confirmed the conviction and sentence and dismissed the appeal. In fact, the High Court came to the conclusion that the value of unaccounted assets was Rs. 4,13,802.16 and not Rs.3,05,985.39 as determined by the Special Court. It accepted the contention of the appellant that the value of assets as on 1.5.1976 (beginning of check period) was Rs.63,198.61 and not Rs.13,449.17. It, however, rejected the appellant's claim for certain additions to the income (which had been accepted by the trial court), namely, Rs.25,922.60 (travelling allowance), Rs.8,000/- (bonus), Rs.34,083/- (being part interest on fixed deposits, that is by taking the interest earned as only Rs.57,583.91 instead of Rs.91,666.25 claimed by the appellant) and Rs.511/- (S.B. Account interest). It did not accept his contention that the value of the Salem house was only Rs.80,000/- and took it as Rs.1,13,042/-, thereby increasing the assets by an extent of Rs.28,740/-. Consequently, out of Rs.6,69,852.78 (value of assets as on 29.5.1986), the High Court deducted Rs.63,198.61 (being the value of assets at the beginning of check period as claimed by the appellant) and Rs.1,92,852.01 (surplus of income over expenditure during the check period as determined by it) and concluded that assets of the value of Rs.413,802.16 remained unexplained.

7. After the matter was argued for some time, learned counsel on both sides agreed that the entire matter boiled down to the acceptance of the genuineness of the alleged loan of Rs.2,50,000/- from PW-11 and PW-15. They agreed that even if the claims of the appellant relating to Travelling Allowance [Rs.22,922.60/-], Bonus [Rs.8,000/-], difference in interest on FDs [Rs.34,578.37], and difference in valuation of the house [Rs. 28,740/-] are accepted, the appeal will fail if the alleged loan of Rs. 2,50,000/- was not accepted. If the explanation for Rs.2,50,000/- which is the major chunk of the unexplained excess (being part of Rs. 2,94,615/- found in cash in appellant's house) is not accepted, there may be no need to examine the correctness of the other items. We will, therefore, first deal with the alleged loan of Rs. 2,50,000/-.

9. We may briefly refer to the evidence of PW-11 and PW-15 who were the alleged creditors.

9.2) PW-11 further stated that when he asked them why they wanted such a specific entry for such amount as on 24.5.1986, they stated that appellant had already paid such amount as advance to buy a house at Coimbatore and therefore, they wanted such an entry to show that the said amount was borrowed by the appellant; that as they went on pleading, finally PW-11 and PW-15 agreed to help them; that PW-15 prepared two promissory notes for Rs.1,25,000/- each showing the dates as 24.5.1986, though the said promissory notes (Ex. P-64 & P-65 ) were, however, actually written on 30.5.1986. One promissory note [Ex. P-64] was executed in favour of M/s. Satramdas Mahesh Kumar. The other promissory note (Ex. P-

9.3) PW-11 also stated that only on 19th & 20th June, 1986, when CBI raided his office and house and seized the said documents [Ex. P-64 to P-83], he and PW-15 came to know about CBI discovering cash of about Rs.3 lakhs in appellant's house on 29.5.1986 and learnt they were cheated by making them agree to show 'adjustment entries' to create evidence of borrowing by the appellant to explain away the huge cash. He also stated that his statement (Ex. P-91) was recorded by one Ramalingam, Assistant Director, Intelligence Wing of Income Tax Department, Chennai. Subsequently on 01.8.1986, PW-11 and PW-15 were arrested and released on personal bonds. They consulted their lawyer in regard to these transactions and he suggested that they should disclose the real facts relating to the transactions before a Magistrate at Chennai. Accordingly, they applied to the Metropolitan Magistrate, Saidapet, Chennai, to record their statements and they were asked to appear before Saidapet Metropolitan Magistrate No. IV on 11.8.1986. They appeared on that date before the said Magistrate and the Magistrate asked PW-11 whether he was willing to give a voluntary statement and also informed him to think over before giving such statement as such statements might be used against him and gave a day's time to him about it. That next day, he appeared before the Magistrate and Magistrate again gave him a warning and asked whether he was willing to give a voluntary statement. When he reiterated his desire, the Magistrate recorded his statement under section 164 Cr.P.C. (Ex. P-93). Thereafter, he was asked to appear before C.B.I. Inspector who also recorded his statement. He also stated that he received summons from C.J.M., Coimbatore on 14.5.1987 and he appeared on that day and confirmed his statement and the CJM granted pardon.

13. The contention that Ex.P-64 to P-69 and the entries in account books (Ex.P-70 to P-81) bear the date 24.5.1986 and therefore, they cannot be relied upon to show that the documents were executed and entries were made on 30.5.1986 is untenable. PW-11 and PW- 15 clearly and categorically explained the circumstances in which those documents came into existence on 30.5.1986. Several circumstances probabilise their statements. We may refer to them briefly :-

We extract below the contents of Ex.P-69 :-

16.1) We will refer to the facts as also the principles laid down in Thadi Narayana (supra) to show that they are inapplicable to the case in hand. In that case, the accused was tried for offences under sections 302 and 392 Indian Penal Code. The Sessions Judge acquitted the accused under sections 302 and 392 IPC but convicted her under section 411 IPC. The accused appealed to the High Court against the conviction under section 411 IPC. The State did not appeal against the acquittal in respect of the charges under sections 302 and 392 IPC. The High Court while setting aside the order of conviction under section 411 IPC also set aside the order of acquittal under sections 302 and 392 IPC and ordered a retrial on the original charges. This Court held that while exercising power under section 423(1)(b) of the old Code of Criminal Procedure [corresponding to section 386(b) of the new Code] in an appeal against conviction, the High Court had no jurisdiction to set aside the order of acquittal passed in favour of the accused by the Sessions Judge (in respect of the offences under sections 302 and 392 IPC). It was pointed out that as section 423(1)(b) of Cr.P.C. was confined to appeals against the orders of conviction and sentence, what falls for decision in such appeals is only the conviction and sentence and matters incidental thereto; and if the order of acquittal is not challenged in an appeal and if the High Court does not take action in exercise of its powers of revision, the order of acquittal becomes final and cannot be challenged indirectly in an appeal by the accused against the order of conviction and sentence. It was held :-

16.2) The facts of this case are completely different. The Special Judge convicted and sentenced the appellant under section 5(1)(e) read with section 5(2) of the Act. In an appeal by the accused against the said conviction and sentence, the High Court neither modified the finding of guilt under Section 5(1)(e) nor the sentence under Section 5(2). All that it has done is while affirming the finding of guilt recorded by the Special Judge in regard to the disproportionate wealth, to recalculate the exact amount of disproportionate wealth with reference to the evidence, which is permissible under section 386(b)(ii) which provides that the appellate court may, in an appeal from a conviction, alter the finding, maintaining the sentence. If an appellate court may alter the finding of guilt of the accused from one section to another, while maintaining the sentence, we see no reason why the extent of the offence should not be changed in an appeal against conviction. We are, therefore, of the view that the High Court did not exceed its jurisdiction in exercising the power of appeal under section 386 IPC.

18. The appeal has no merit and is, accordingly, dismissed.