R. Janakiraman vs State Represented By Inspector Of ...

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

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 Page 0007unaccounted 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.

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- 65) was executed in favour of Pahlaprai Sons [partnership firm of PW-11]. Two guarantee letters were also filled up by Kasinathan [Ex. P-66 and P-67]; one in favour of M/s. Satramdas Mahesh Kumar and the other in favour of Pahlaprai Sons. One confidential form [Ex. P- 68] was filled up by Kasinathan. Narayanaswamy signed both promissory notes and the 'confidential form'. All the three brothers of appellant signed the guarantee letters. To create a document to show that the appellant's house at Salem was also given as security by way of equitable mortgage for such loan, appellant's brother Ramachandran along with PW-11's clerk went to a stamp vendor to obtain an ante-dated stamp paper with the date of 23.5.1986 in the name of the appellant. Thereafter, the appropriate entries were made in the pronote entry book and in the respective day book and cash book, showing Rs. 1,25,000/- was advanced by the firm of PW- 11 and another Rs. 1,25,000/- by the firm of PW-15. After the entries were made, the three brothers of the appellant took the promissory notes, guarantee letters, confidential form, equitable mortgage document stating that they will get the signatures of the appellant and later brought back those documents and delivered them on 1.6.1986 with the signatures of the appellant. Along with the said loan documents, they also gave two alleged 'title deeds', that is, a certificate showing the ownership of the appellant in regard to the house at Salem [Ex. P-82] and two electricity bills [Ex. P-83 series]. PW-11 stated that the aforesaid documents were created to make the lending transaction to appear genuine even though no money was advanced.

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,Page 0010 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.

14. The recovery of Rs. 2,94,115/- in cash from the steel almirahs of the appellant is not disputed. The appellant does not disown the amount but admits that it belongs to him. His explanation as to how he obtained the said money is clearly unacceptable. The persons from whom he allegedly borrowed the said money, Rs. 2,50,000/-, have denied having lent the said amount. We, therefore, find no error in the concurrent findings of the trial court and the High Court that the appellant had not borrowed the said amount from PW-11 and PW-15 and that the same was part of the ill-gotten money acquired as illegal gratification.

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/-.

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:

15. The appellant having failed to satisfactorily account for the assets beyond his known sources of income to the said extent of Rs. 2,50,000/-, is guilty of an offence under Section 5(1)(e) of the Act. In view of our said finding, it is really unnecessary to examine the other disputed amounts namely alleged loan from brothers and brothers-in-law (Rs. 40,000/-), travelling allowance [Rs. 22,922/60], bonus [Rs.8,000/-], difference in interest on fixed deposits [Rs.34,578/37]; and difference in cost of construction (Rs.28,740/-). We may, however, refer to two other questions on which arguments were advanced by the learned Counsel for the appellant.