IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 27.04.2017 CORAM THE HONBLE MR. JUSTICE T. MATHIVANAN Criminal Revision Case Nos.702 & 703 of 2016 Against Criminal M.P. No. 87 & 86 of 2014 in Special CC No. 76 of 2014 (on the file of the Learned Special Judge (for Corruption Cases) - Salem)

1. Mr. R. Soundirarasu, Motor Vehicle Inspector, Grade  1 Formerly O/o. the RTO, Namakkal, Now working as MVI at Ulundurpet.  Petitioner (Crl. RC No.702 of 2016) A1

2. Tmt. S. Suguna W/o. Mr. R. Soundirarasu, No.38, Mullai Nagar, Suramangalam, Salem  5.  Petitioner (Crl. R.C. No. 703 of 2016) A2 Versus State by Deputy Superintendent Police Vigilance and Anti Corruption  Respondent (in both Criminal Revision Petitions)/ Complainant Prayer:

With regard to item (A), he has stated that his wife Tmt. Sugna was having partnership business in the name of M/s.S.K.Mat Industries at M.Chettipatti since 1993. Subsequently she had disposed of the partnership settlement to other partner and became proprietor of the concern. From 01.04.2004 she has been having independent sources from the firm and became an income tax assessee.

In so far as item (B) is concerned, he has stated that his mother Krishnammal had inherited this land and subsequently settled this property in favour of her three sons and thereby he had received 1/3rd share

17. The learned Senior Counsel while advancing his arguments has drawn the attention of this court to the explanation given by the 1st accused to the letter issued by the investigating officer( at page no.32 of typed set of papers).

18. In this connection, he has stated that his wife Tmt. Suguna (A2) was having a partnership concern by name Mrs. S.K. Matt Industries at M. Chettipatti since 1993. Subsequently she disposed of the partnership settlement to other partner and became its proprietor from 1.4.2004. And that she was having independent sources from the concern and she had become an income tax assesee and out of her own sources she had purchased property. The property shown as 2nd item at page.32 of typed set of papers is said to have been inherited by the mother of A1 and subsequently she had settled the property to her 3 sons including the 1st petitioner. Out of this item he had received 1/3 share.

19. As already observed the investigating officer had not called for any explanation from the 2nd accused Tmt.Suguna. In this connection, M. A. Natarajan, Learned Sr. Counsel has made reference to the decision of this court and made in S. Kumar Vs. State represented by Inspector of Police (SPE/CBI/ACB, Chennai-6) decided on 13.7.2011, In paragraph No.18 this court has made reference to Devine Retreat Centra Vs. State of Kerala (2008) 3SCC 542. In this case the Apex Court has held that no judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results drastic consequences of affecting ones own reputation.

20. In so far this case is concerned it may be stated that, when the prosecuting agency has come forward with a specific occasion, that the petitioners have amassed wealth which is disproportionate to their known source of income, it is incumbent on the part of the prosecution, to prove the indictment with clinching and impeccable evidence beyond all reasonable doubts, because the allegations made against the petitioners would definitely affect their private rights and their self respect as well and therefore the prosecution must have through scrutinization on the compliant to find out whether any prima facie cases is made out.

21. In S. Kumar Vs. State cited supra at Paragraph No.51 this court has held that :

22. Mr. A Natarajn, in so far as the 2nd accused is concerned (Tmt. Suguna), has submitted that apart from her partnership business under the name and style of Mrs. S.K. Mat Industries at Chettipatti with effect from 23.10.1993, she had also been doing money lending business in the places where she had resided from the year 1990 and earned good interest on the loans lend. She had also been paying income tax from 1990 onwards and her IT returns were scrutinized by the appropriate authorities. He would further argue that as shown from the pages 187 to 248, she had been regularly fitted her income tax returns even beyond the end of the check period. This court has also verified the tax returns filed by the 2nd accused which is shown from pages 187 to 248. The Investigating Officer while collecting necessary details from both the income tax authority as well as the 1st accused, had failed to consider them in proper perspective which do establish that the 2nd accused had acquired properties . But mechanically the investigating officer in the final report had stated that she had no source of income and her father also did not posses any means to acquire property. It is to be noted that the 2nd and 3rd items shown in statement no.4 relate to the 2nd accused exclusively i.e., purchased from the loan amounts and since they were acquired by her, they have to be deleted.

23. It may also be noted here that while in assessing the assets of the 1st accused, the assets standing in the name of his wife (A2) and their son have to be eschewed from the statements 1 & 2. Similarly, all items in statements 3 & 4 mentioned against the names of the persons detailed above have to be omitted.

24. This court have perused the order of the Learned Special Judge dated 29.3.2016 passed in both the petitions in Crl. M.P. Nos.86 & 87 of 2014 in Spl. C. C. No.76 of 2014. The Trial Court ought to have seen the ingredients of Sections 13(2) r/w. 13(1) (e) of Prevention of Corruption Act and section 109 of IPC. The evidences tagged along with the final report are also not in consonance with the accusation made in the final report. The petitioners had sufficiently established the source of income through the individual income tax returns as well as through the partnership firm. M/s. S.K. Mat Industry and thereafter had become the proprietor of the concern from 31.03.2003. The trial court has miserably failed to consider the explanation as well as further explanation offered by the 1st accused. It is significant to note here that the 1st item in statement I was not only settled in favour of the 2nd accused Mrs. Suguna but also settled in favour of her younger sister namely Kalaichelvi. Subsequently the said property was developed by the 2nd accused Tmt. Suguna after availing loan from LIC on 28.1.2001 in loan A/c no.1312761.

25. The prosecution has merely clubbed the assets the 2nd accused (wife) with that of the 1st accused (husband) more particularly when she had an independent source of income.

26. On the other hand Mr. E. Raja, Learned Addl. Public Prosecutor, (V & AC) has submitted that the total disproportionate assets stood at the end of the check period in the name of the 1st accused as well as the 2nd accused was worked out at Rs.24,41,980/- and the % of disproportionate assets was calculated at 244.71%. According to Mr. E. Raja, Final opportunity was given to A1 for giving his explanation in regard to the disproportionate assets that stood to the credit of the 1st accused and his family members. He has also submitted that his reply was duly considered by the Investigating Officer with reference to the available records. He has also submitted that the Investigating Officer having not satisfied with all the explanations offered by the 1st accused being the public servant, had rightly filed the final report against both the petitioners as per the decision of the apex court made in P. Nallammal and another Vs. State (1999) 6 SCC 559(SC). In this case it is held that the clubbing of assets and properties and pecuniary income of A2 with that of A1 was proper and was in consonance with the law. The Additional Public Prosecutor has also drawn the attention of this court to clause (e) of Sec. 13 (1) of Prevention of Corruption Act, 1988 which reads as under:

Explanation to clause (e) reads as under:

27. Once the ingredients of the offence of criminal misconduct under Section 13(1) and 13(2) of the Prevention of Corruption Act are established the offence of criminal misconduct is complete, unless the accused is able to account for such resources of property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. It is also to be noted that the accused is not to bound prove his innocence beyond all reasonable doubt. All that he has to do is to bring out a preponderance of probability. This preposition has been laid down by the Apex Court in State of Mahahrastra Vs. Wasudeo AIR 1981 SC 1186 : 1981 (3) SCC 199.

28. The learned Additional Public Prosecutor, after citing N. Suresh Rajan as well as K. Ponmudis cases, has submitted that clubbing of assets of individuals with that of the public servant is proper and that the question of ownership of property can be determined only during trial. The Learned Special Public Prosecutor has also made reference to the following decision:

29. Mr. A. Natarajan in support on his contention has also placed reliance upon the following decisions:

30. In A.P. Pillais case cited 1st supra, this court has held that non-compliance of pre requisite condition by the Investigating Officer calling for explanation of accused, is improper and it would go to show that the investigating officer had filed the final report with mala fide intention.

31. In K. Thavasis case cited 2nd supra, this court has also held that the non consideration of statements filed before income tax department has caused prejudice and therefore this court has held that the trial court has not taken into consideration of the various statements filed by the accused before the income tax department on the ground that the same were submitted subsequent to the investigation. This court has also held that on a scrutiny of the evidence of PW69, it has come out in evidence that the accused have filed statements long before the registration of the first information report on 31.10.1996 and in fact PW14 has admitted that the accused appeared in the office on 13.12.1995 itself and field the statements as evidenced by Ex. P29 etc.

32. In DSP, Chennai cited 3rd supra the apex court as held that  the accused on his part satisfactorily establishing that the money and assets recovered belong to his wife which she amassed from the business run by her separately. It is also held that in the absence of any evidence that the assets belonged to the accused, he cannot be held liable under PC Act for such assets. This has been decided by the division bench of apex court as early as in the year 2006 itself.

33. In his explanation to the final opportunity given by the prosecuting agency to offer his explanation the 1st accused has made reference to the provisions of The Tamil Nadu Government Servant Conduct Rules 1973 as amended up to September 2006, Rules 7 (1 (a)) repeat from the book.

The Rule as amended by G.O.Ms. No.409 P & AR, dated 24.1.1992 reads as follows:

Such a notice will be necessary even where any immovable property is acquired by any member of the family of the Government servant out of the resources of the Government servant:

34. In so far as Statement I is concerned, he has stated that except item Nos,01,02,08,10,12 and 14 which are exclusively the investments of his wife out of her own resources, there is no change in other items mentioned in Statement I.

35. In so far as Statement II is concerned, he has stated that the house was constructed at the cost of Rs.4,15,344/- by his wife Tmt. S.Suguna from her independent resources derived from S.K.Mat Industries and other income and LIC Finance Housing Loan. Item No.2 was purchased by his wife out of her independent income derived from S.K.Mat Industries. In so far as item No.3 is concerned, it was purchased by his father-in-law Thiru. T.Duraisamy with his own resources and later gifted by way of dhana settlement to his son Thiru. S.S.Saran Kumar on 16.02.2004 He has further stated that this property i.e. item No.13 under Statement II should have been taken as a gift and the value thereof should not have been included in Statement I. Further, he would state that with regard to item Nos.04,05,07 and 09 , the value of gifts have not been taken into account. Item No.14, according to the first accused, was inherited by his wife Tmt. S.Sugana by virtue of Dhana settlement. Item No.15 was purchased by his mother-in-law Tmt. D.Shantha out of her own funds in the name of his son and that neither he nor his wife had invested any money in this transaction. Item Nos.17,18 and 21 were purchased by his wife Tmt. S.Suguna out of her own resources derived from S.K.Mat Industries.

36. In this connection with Statement-III, he has stated that in so far as item No.5 is concerned, while taking the 50 per cent income of his wife, from the Industries, instead of showing the total income as Rs.63,896/- the independent income of his wife Tmt. S.Suguna for the check period has not been taken into account. During the check period, the income of his wife other than the income derived from SK Industries would be Rs.5,90,342/- (Rs.1,04,450 + 2,44,930 + 2,50,962) and these facts have been reflected in the income tax returns filed by SK Mat Industries and independent returns filed by his wife during the relevant period.

37. In respect of Statement IV, with reference to item No.2 he has stated that the expenditure towards repayment of LIC housing loan to the extent of Rs.1,19,934.30 p. has been shown towards his expenditure which is not correct, as the loan was availed and repaid by his wife Tmt.S.Suguna out of her own resources and that he did not invest any money from his earnings.

38. Similarly, the expenditure being Rs.1,80,000/- shown under item No.3 should not have been shown in his account, in view of the fact that the loan was obtained by his wife independently and repaid so far with interest by her, out of her own resources.

Item No.5 Telephone charges of Rs.26,854/- was paid by his wife out of her own resources. Therefore, this may be deleted from his account.

In respect of item No.10, he submits that the house tax was paid by his wife out of her own resources. Hence, he requests that this may be also be deleted.

The transaction shown in item No.09 was also that of his wife from her own resources. Therefore, the loss should not have been shown in his account.

As far as item No.11 is concerned subscription towards Sri Ram Chits was made by his wife out of her own resources. Therefore, it should not have been shown in his account.

As far as item No.12 the house tax for the house at Ganapathy is concerned it was paid by his wife out of her own resources. Therefore, it has to be deleted from his account.

Item No.14, the income tax paid by his wife out of her own resources has been shown in his account. It may be deleted from his account.

39. As shown in his explanation, Statement I i.e. value of assets that stood to his credit as well as to the credit of his family members at the beginning of the check period is Rs.1,31,254/-.

the value of the assets that stood to his credit as well as to the credit of his family members at the end of the check period is:

40. This Court has carefully considered the submissions made by Mr. A. Natarajan, learned Senior Counsel Assisted by Mr. B. Sivaraman, learned Counsel for Petitioners and Mr.E. Raja, learned Additional Public Prosecutor (V & AC) and the written explanation submitted by the first accused to the letter issued by the complainant.

41. Taking into consideration all the relevant facts and circumstances, this Court is of the view that the Investigating Officer had not considered the explanation submitted by the first accused and also not taken into account any assets of the petitioners/A1 and A2.

42. This Court has also perused the statements of the listed witnesses along with the impugned orders. As already discussed in the foregoing paragraphs and as decided in State of Maharashtra Vs Wasu Deo (AIR 1981 SC 1186:1981 3 SCC 199) cited supra, the nature and the extent of burden cast on the accused is well settled and the accused is not bound to prove his innocence beyond all reasonable doubt. All that he would do is to bring out a preponderance of probability. In so far as this case is concerned, the petitioners have brought out a preponderance of probability by way of establishing their case. As enunciated in Explanation to clause (e) of Sub Section (1) to Section 13 , the petitioners have intimated their income received from lawful source to the income tax authorities concerned in accordane with the provisions of the Income Tax Act , which is applicable for the first accused being the public servant to intimate his known source of income and therefore, this Court is of the view that the prosecution has miserably failed to make out a prima facie case against the petitioners/A1 and A2.

43. It is the cardinal principle that the accused is presumed to be innocent unless proved to be guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Thus, giving false information or failing to prove his innocence is no ground to base conviction of accused and on the contrary it offends the very basic principle of criminal jurisprudence which lays the burden on the prosecution to prove the offence against the accused.

44. In criminal cases, the guilt should be proved beyond any reasonable doubt that a reasonable man with ordinary prudence can have. There should be no doubt whether the accused is guilty or not. If there is slightest doubt, no matter how small it is, the benefit will go to the accused. In Indian legal system the provision regarding burden of proof and how it is to be discharged are grandeurly laid down in Chapter VII of the Evidence Act, 1872 . The rule is that whoever alleges a fact must prove it. In a criminal trail it is the prosecution who alleges that the accused has committed the offence with requisite mens rea and so the burden lies upon the prosecution to prove the same.

45. As observed in the preceding paragraphs the accused is not bound to prove his innocence beyond all reasonable doubt. All that he has to do is, to bring out a preponderance of probability. The phrase preponderance of probability  appears to have been taken from Charless R.Cooper V F.W.Slade, (1857-59) 6 HLC 746. The observations made therein make it clear that what preponderance of probability means is more probable and rational view of the case , not necessarily as certain as the pleadings should be.

46. Section 397(1) confers a sort of supervisory power. The purpose is to rectify miscarriage of justice. The main consideration was whether substantial justice was done since this Section confers the revisional jurisdiction upon both the Sessions Court as well as the High Court (Criminal). Nobody can claim it as a matter of right as it confers supervisory jurisdiction. When there is a clear illegality in the order passed by the lower Court, a revision could be entertained.

47. On coming to the provisions of Section 401 of the Code, as it is understood, the object behind this Section is to empower the High Court to exercise the powers of an Appellate Court to prevent failure of justice in cases where the Code does not provide for appeal.

48. The power, however, is to be exercised only in exceptional cases where there has been a miscarriage of justice owing to :

49. As observed by the Supreme Court in State of M.P. Vs. S.B.Johari , (AIR 2000 SC 665: (2000) 2 SCC 57: 2000 SCC (Crl) 311 : 2000 Crl.L.J.944), under Section 401 of Criminal Procedure Code quashing of the charge by the High Court would be justified if even on considering the entire prosecution evidence, the offence is not made out.

50. Viewing it from any angle, this Court is of considered opinion that the prosecution has not made out any case as against the petitioners/A1 and A2 to proceed with.

51. In the result, Criminal Revision Case Nos.702 and 703 of 2016 are allowed and the impugned orders, dated 29.03.2016 and made in Crl.M.P.Nos.87 and 86 of 2014 in Special CC.No.76 of 2014 on the file of the learned Special Judge (for Corruption Cases), Salem are set aside and the petitions in Crl.M.P.Nos.87 and 86 of 2014 in Special CC.No.76 of 2014 are allowed. The petitioners/A1 and A2 are discharged from the clutches of the charges.