@JUDGMENTTAG-ORDER
P.D. Waingankar, J.@mdashBy order dated 30.7.2014 in Spl. Case No. 26/2012, the District & Sessions Judge and Special Judge, Bagalkot, discharged the accused for the offences punishable under Sections 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988.
2. Aggrieved by the discharge of the accused, State represented by the Deputy Superintendent of Police, Karnataka Lokayuktha, Bagalkot has preferred this revision petition under Section 397 r/w 401 Cr.P.C.
3. The case of the prosecution in a nutshell is as under:-
"The respondent (who shall hereinafter be called as ''accused'') while serving as Police Inspector amassed wealth disproportionate to his known source of income in the name of his mother, brothers, wife and children to the extent of 126.03% during the check period. As such, on the basis of the source report, a crime No. 13/2008 came to be registered against him in Lokayuktha police station, Bagalkot and upon investigation, the investigating officer found that the accused acquired in the name of his mother, brothers, wife and children to the tune of Rs. 2,80,55,675/- disproportionate to the known source of income, which he failed to explain satisfactorily. As such, a charge-sheet came to be filed against him in Bagalkot Lokayuktha police station Crime No. 13/2008 for the offences punishable under section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act before Special Judge, which came to be registered in Spl. Case No. 26/2012. The accused appeared before the Special Court and filed an application under Section 227 Cr.P.C. for his discharge. On merits, the application came to be rejected by order dated 17.1.2013. The accused challenged the order of rejection of the application for discharge in Crl. R.P. No. 2168/2013 before this Court. By order dated 17.9.2013, this Court set-aside the order dated 17.1.2013, whereby the application for discharge was rejected by the Special Court. The matter was remanded with a direction to the court below to re-examine the case of the petitioner for discharge with reference to the specific documents referred to in the discharge application and to pass appropriate orders. After remand, the application was again heard by the Special Court, which came to be allowed by the impugned order discharging the accused. Aggrieved by the discharge of accused, this revision is preferred by the State questioning the legality and correctness of the order."
I have heard learned counsel appearing for the revision petitioner-State and the learned counsel for respondent-accused. Perused the records.
4. The learned counsel for the respondent accused placed reliance on the following decisions in support of his case:-
"1.
Criminal Procedure Code, 1973 -Sections 227 and 228 - Framing of charge - Court has to sift evidence on record and other documents only for the limited purpose of ascertaining whether prima facie case is made out against the accused - If so it should frame charges under Section 228 , and if not, discharge the accused under Section 227 .
2.
Criminal P.C.(2 of 1947), S. 227 -framing of charge - Judge cannot act merely as a post office but has to consider total effect of evidence and documents produced before Court - Appellant lecturer in private college, charge sheeted for demanding bribe from student for increase his number in answer scripts - Trap laid -No police agency involved in alleged trap -FIR lodged after seven days - No incriminating articles were found in the possession of the accused and statements of witnesses were recorded by police after ten months of the occurrence - Prosecution has not been able to throw any suspension against appellant - No prima facie case was made against the appellant - Remote chance of charges ultimately culminating into conviction - Criminal proceedings liable to be quashed.
3.
Criminal Procedure Code, 1973 -Ss. 173(5) , 228 , 240 , 231 , 242 , 235 and 248 - Framing of charges - Appreciation of evidence on record - Scope of- Material to be considered - Held, court cannot confine to material supporting the prosecution and ignore the material favouring accused -S. 173(5) of the Code, held, would otherwise lose its meaning - Criminal Trial -Appreciation of evidence."
5. The allegations made against the accused are that he amassed wealth to the tune of Rs. 2,80,55,675/- i.e., 126.03% disproportionate to his known source of income during the check period i.e., from 1.8.1979 to 26.11.2008. During search, he was found in possession of assets worth Rs. 2,70,85,096/-, his total expenditure for the check period was assessed to the tune of Rs. 2,32,31,596/- and thereby disproportionate assets have been calculated to the tune of Rs. 2,80,55,675/-. Admittedly, he joined as PSI in the year 1979. When the case was registered, he was working as Dy. S.P. Lingasur in Raichur. When he joined service on 1.8.1979, his basic salary was Rs. 720/- per month. He used to invest Rs. 500/- per month towards recurring deposit in State Bank of India every month and was contributing Rs. 300/- per month towards GPF. He had five brothers, who were all younger to him. It is borne out from records that his father was an Ex-servicemen having a house at Mudhol in Bagalkot and five acres of land. It is the case of the prosecution that the accused purchased 4 sites at Mudhol bearing No. 1, 2, 6, 7, 8A and constructed a hotel in the name of his father wherein he was running business under the name Sagar Hotel and Bar in the year 1991. After the death of his father, the hotel came to be transferred in the name of his mother. It is further case of the prosecution that he also constructed a nursing home at Mudhol, which is being looked after by his brother Dr. Ashok and his wife Smt. Kanthi. He has also purchased house sites No. 10 and 15 in Sy. No. 47/1+2A of Doddanayakana Koppa, in Dharwad, wherein he constructed palatial building in the name of his brother Dr. Ashok. It is also the case of the prosecution that he purchased a site No. 886 at Kanabaragi Village in Belgaum measuring 50'' x 80'' for Rs. 2,20,000/- allotted by Urban Development Authority, Belgaum; Site No. 39 measuring 15 x 24 meters in Doddanayakana Koppa Village, Dharwad for Rs. 5,05,305/- allotted by K.H.B. and invested an amount of Rs. 10.00 lakhs in Fidelity International Opportunity Fund. His first daughter has completed BDS, his first son has completed MBA in hotel management, the second daughter has completed B.E. He said to have purchased 25 acres of garden land in the name of his father after he joined service in the police department. Thus it is the case of the prosecution that he purchased huge properties in the name of his all family members which according to prosecution are all banami transactions. The learned Special Judge relying upon the contents of the documents produced on behalf of the accused such as sale deeds, affidavits etc., jumped to a conclusion that the accused is in no way concerned to those properties. No Government Servant would venture to purchase properties worth crores in his name or in the name of his wife and children so as to invite trouble. Only looking at the contents of the documents, one cannot jump to a conclusion that the transaction contained in those documents is genuine transaction. It is our common experience that corrupt babus are always in the habit of purchasing the properties in the name of their relatives and in order to digest the properties purchased by illegal means, they file a suit for partition among the family members and get a collusive decree by filing compromise petition to see that those properties which were acquired by illegal means are allotted to the person who infact had paid consideration for purchase of the properties. Ultimately, what is to be seen is from where the consideration for the purchase of the properties had flowed. The burden is on the prosecution. For that, an opportunity has to be given to the prosecution to establish the same. The filing of the assets and liabilities statement and income tax returns will not preclude the prosecution from establishing that the properties were acquired by the accused in the name of his father, mother, brothers, wife and sons. Ultimately it is for the court to decide after conducting a trial. In this case, all the properties whether they are standing in the name of accused or his father, mother, brothers and son were acquired after he joined service in the year 1979. Moreover, no documents have been produced by the accused to show that his mother, brothers, wife and sons had that much of resources so as to purchase the properties worth crores of rupees. Merely because his mother, brothers have filed an affidavit stating that they are their own properties, one cannot come to the conclusion that they are the properties of mother, brothers and that the accused is in no way concerned to those properties. Having regard to the meager salary that the accused was drawing and the properties standing in the name of mother, brothers and other family members, this is a case to frame charges against the accused and to go for a trial. Added to that, the Investigating Officer has recorded statement of number of witnesses and collected sufficient material so as to frame the charges against the accused. The Special Judge without concentrating on his aspect has blindly accepted the documents as they are and came to the erroneous conclusion that the properties were acquired by the mother and brother of the accused. The Special Judge has not made an enquiry as to the source of consideration in order to purchase the properties worth crores. It is for this reason the order passed by the Special Judge discharging the accused is liable to be set-aside. Accordingly, the impugned order is set-aside.
