S. Palanivelu, J.@mdashThe Inspector of Police, SPE/CBI/ACB, Chennai in his police report concerned in case No. RC 17(A)/99 has stated that the accused Sri. R. Markandan was a public servant employed as senior Operator at Indian Oil Corporation, Vilangudi, Madurai and at the end of check period from 1.3.1992 to 25.6.1999 he was found in possession of assets valued at Rs. 21,30,371.50 whereas the value of his assets at the beginning of check period was Rs. 12,051.30 and hence he acquired assets to the tune of Rs. 21,18,320.20 during the check period and that he had spent a sum of Rs. 2,39,826.80 during the check period and hence the total assets acquired and the expenses incurred by the accused during the check period comes to Rs. 23,58,147, whereas his total income from all the known sources during the check period comes to Rs. 13,75,684.40 and hence, he was found in possession of assets and pecuniary resources disproportionate to his known sources of income by Rs. 9,82,462.60 which comes to 71.4% of his income which the accused official was unable to satisfactorily account for and hence the accused official had committed an offence described u/s 13(1)(e) of Prevention of Corruption Act, 1988 and punishable u/s 13(2) of the said Act. After analysing the evidence on record, the trial Court viz., the Special Court for CBI Cases, on 10.10.2002 found the appellant guilty u/s 13(2) read with 13(1)(3) of P.C. Act 1988 and handed down the sentence to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs. 25,000/- in default to undergo R.I. for three months. Aggrieved against the order of the trial Court, the appellant/accused preferred the present appeal. Pending the hearing of the appeal, he died. Hence, his wife by name Pushpavalli filed an application in M.P. No. 1 of 2009 to continue the appeal and the same was allowed on 7.9.2001 by this Court. Presently she is prosecuting the appeal. She filed an application in M.P. No. 1 of 2010 to receive additional evidence in this appeal.
2. The learned trial judge has elaborately dealt with the known sources of income and expenditure during the relevant period and brought them under statement A, B, C and D and arrived at Rs. 20,29,655.50 as value of the assets and pecuniary resources, and income received by him during the check period as Rs. 16,02,695. and found the extent of disproportionate assets possessed by the accused at the end of check period at Rs. 4,26,960.50. The trial Court has dealt with as regards the Statements under which various categories of sources of income and expenditure incurred by the appellant during the check period. Statement ''C'' is the known sources of income of the appellant during relevant period and statement of ''D'' is with regard to expenditure incurred during the check period. For easy understanding of the matter and also for the disposal of the appeal, the extraction of Statements A to D are inevitable. They are as follows:
3. The following is the assessment of the trial Court which gives rise to the extent of disproportionate assets. They are as follows:
55. Having arrived at the above figures I have next to proceed to decide whether the accused possessed any assets or pecuniary resources disproportionate to his known sources of income during the check period from 1.3.1992 to 25.6.1999.
This can be summarized as follows:
56. Therefore, the value of the assets and pecuniary resources possessed by the accused in excess of his known sources of income at the end of check period from otherwise the extent of disproportionate assets possessed by the accused at the end of check period is Rs. 4,26,960.50 (Rs. 20,29,655.50 (minus) Rs. 16,02,695.00)
The percentage of disproportionate is 26.64%
4. Though the trial Court has assessed the value of the disproportionate assets at Rs. 4,26,960.50 against the assessment made by the prosecution at Rs. 9,82,462.60, the respondent has not preferred any appeal with regard to the said calculation.
5(a) The wife of the appellant has filed an application in M.P. No. 1 of 2010 in which she has stated that subsequent to the judgment of the trial Court, her husband received a notice from the Income Tax authority requiring him to submit the records for assessment and he filed the Returns from the year 1997-98 onwards. The assessing officer viz., the District Commissioner of Income Tax, Company Circle II, Madurai, passed an Assessment Order on 31.3.2004 and as against the said Order he preferred an appeal before the Commissioner of Income Tax, Madurai, in which orders came to be passed on 30.9.2005. Discontent with the said order, he filed further appeal before the Income Tax Appellate Tribunal Bench ''D'' Chennai in I.T.A. No. 297 and 298/Mds/2006 for the Assessment years 1997-98 and 1998-99. The Tribunal passed order on 24.9.2007 allowing the appeal and remitted the matter back to the Assessing Officer for passing fresh assessment order. Accordingly, the Assessing Officer has passed a fresh assessment order on 26.3.2008. The above order came to existence subsequent to the pronouncement of judgment by the Court below and subsequent to the filing of appeal. In the above said proceedings, the income derived by the appellant during the said period in 1997-98 and 1998-99 have been furnished and for each assessment year he got Rs. 1,30,000/- by way of borrowings from the Hindu Undivided Family in which he was a member. Hence, the source of income of Rs. 2,60,000/- has to be added to his known sources of income.
5(b) The orders of the above said statutory authorities are public documents. Hence, they may be received as Additional evidence in appeal. In case, the said source is accepted as a known source of income, the alleged disproportionate assets valued at Rs. 4,26,960.50 will not exist. Hence, the orders of the Assessment Officer, Commissioner of Income Tax (Appeals) Madurai, Income Tax Appellate Tribunal Bench ''D'', Chennai, dated 24.9.2007 and 20.10.2006 and also the final assessment order passed by Deputy Commissioner of Income Tax, Company Circle II, Madurai dated 26.3.2008 may be received as additional document.
6. The respondent has filed a counter stating that the documents could not be received as additional evidence. It is further stated that the documents originated after the completion of trial cannot be introduced at the stage of appeal, to fill up the lacuna. The scheme of Section 391 Cr.P.C. is not to allow additional evidence in every case, that the provision has to be sparingly exercised and that too in a case, where some documents have been inadvertently omitted to be marked, when the documents were available. But in this case, the documents sought to be let in as additional evidence, were not at all in picture, at the time of trial, that if these documents were allowed to be introduced, it will cause grave prejudice to the respondent, that these documents cannot be introduced as they are new documents and the law does not permit, introducing new documents after the Judgment was pronounced, that the documents cannot be introduced by the appellant, as she is not the author of the said document. Further the genuineness of the documents cannot be presumed as they are not public documents, that the appellant has no locus standi to file these documents without the order of this Court, that the respondent had no opportunity to confront these documents and hence the petition may be dismissed.
7. Points for consideration:
Whether the additional evidence as prayed for by the wife of Appellant have to be received in appeal?
Whether the calculations undertaken by the trial Court to reach the value of disproportionate assets possessed by the accused is proper and whether it was on due appreciation of evidence and materials on record?
Point No. 1
8. Assessment order dated 31.3.2004 of Assessing Officer viz., the Deputy Commissioner of Income Tax, Company Circle-II, Madurai, is based on the details of assets acquired during the period from 1.4.1996 to 31.3.1997 as per the trial Court Judgment dated 10.10.2002. In the appeal preferred by the appellant before the Appellate Authority viz., Commissioner of Income Tax (Appeals-II), Madurai, he has submitted before the authority that he derived agricultural income to an extent of Rs. 1,30,000/- every year which was also utilised for investments made by him. The appeal was partly allowed on 30.9.2005 by discussing various sources of income and the observation that it is seen from the salary certificate that the appellant''s take home salary was only Rs. 37,150/- during the year, even though the gross salary was Rs. 1,22,583/- and that the take home salary was sufficient to meet his personal/family expenses and it is not possible for him to explain any investment out of salary income, however, farther holding that the salary income was not available for making investments. In another order passed on the even date, the Appellate Authority has held that as found by the CBI Court, the claim of agricultural income is only an after thought invented by the appellant on pure imagination in his desperate attempt to satisfactorily account for the otherwise disproportionate assets possessed by him.
9. He preferred further appeals before the Income Tax Appellate Tribunal Bench ''D'' Chennai and an order came to be passed on 24.9.2009 allowing the appeals by directing the matter to be remitted to the Assessing Officer to decide the issue as regards the income from HUF. The Deputy Commissioner of Income Tax passed two Assessment Orders separately for the assessment years 1997-98 and 1998-99 accepting the borrowings of Rs. 1,30,000/- for each assessment order from the HUF of the assessee. In this regard, for these two years a sum of Rs. 2,60,000/- has to be taken into consideration as the source of income for the appellant in the years 1997-98 and 1998-99 as per the appellant.
10. The learned senior counsel Mr. V. Gopinath appearing for the prosecuting appellant would contend that the orders have been passed by the competent statutory authorities, that concededly they were not in possession of the appellant at the time of trial and they came to existence aftermath the trial Court''s judgment and pending hearing of the appeal, that they do not require any formal oral evidence for their proof which can be received as such as additional evidence, that it is the well settled principle that being public documents, containing judicial finding and that there could be no legal impediment to receive them in appeal.
11. Contending contra, Mr. Rozario Sundarraj appearing for the respondent would submit that inasmuch as this additional evidence appear to have been obtained only for the purpose of the cases, they do not have any evidentiary value, that new documents which originated after the commencement of the trial cannot be introduced at the stage of the appeal to fill up the lacuna and that in case of their being entertained, the respondent will be put to great prejudice.
12. The learned senior counsel for the prosecuting appellant would place reliance upon a decision of this Court in Rakkappan v. State LNIND 2009 MAD 1792: (2009) 4 MLJ (Crl) 27 in which the observations of this Court are as follows :
9. In this connection I would like to extract hereunder Sections 74, 75 and 76 of the Indian Evidence Act.
Section. 74 Public documents-The following documents are public documents:
(1) documents forming the acts or records of the acts-
(i) of the sovereign authority
(ii) of official bodies and Tribunals, and
(iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth, or of a foreign country; (2) public records kept in any State of private documents
75. Private documents-All other documents are private.
76. Certified copies of public documents-Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written, at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation-Any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section.
10. A cumulative reading of those provisions of the Indian Evidence Act would exemplify and demonstrate that if certified copies of a public documents are filed in Court, even without formal marking or proof, the criminal Court can take into account, at the request of either of the parties and the criminal Court at its judicial discretion could assign markings to them.
It is settled that certified copies of public documents could be received in evidence without their being marked for proof of the same.
13. In
14. In
15. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the Court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man''s escape through some careless or ignorant action on part of the prosecution before the Court or for vindication of an innocent person wrongfully accused, where the Court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. (Vide Rajeswar Prasad Misra v. The State of West Bengal and Another, AIR 1965 SC 1887
16. This Court in
...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest..........
15. Following the principles laid down in the above said decision, this Court is of the view that if it is found by the appellate Court, in the absence of additional evidence failure of justice would be caused, the receipt of which is permissible and that it could not be stated it is for filling up lacuna but to subserve the ends of justice.
16. The learned counsel for the respondent would rely upon a decision of this Court in
17. A Division Bench of the Gujarat High Court in a decision in
18. The facts in the present appeal on hand are entirely different. Firstly, the documents which are sought to be received as additional evidence were not in existence at the time of trial. Nextly, nothing was suppressed before the higher forum nor any of the indirect method is being adopted by the prosecuting appellant. In these circumstances, this Court is of the view that the additional evidence can be received in evidence, since they are public documents which need no formal proof of marking, that they do not appear to have been filed to fill up the lacuna, that the finding of the Income Tax authority is a judicial finding and that to sub-serve the ends of justice they have to be received in evidence. It is also observed that the assessment order came to be passed by the assessing officer of Income Tax after duly scrutinising the materials placed before him by the appellant for the income received by him from HUF. No foul play could be inferred in this regard. I am of the opinion that there is no legal embargo for receiving the proceedings of the income tax authorities as additional evidence in this appeal and a sum of 2,60,000/- shall be taken as a known source of income for the years 1997-98 and 1998-99 which are covered in the check period. I answer this point accordingly.
19. Point No. 2
(i) As regards borrowing of Rs. 2,60,000/- from HUF :
In view of the observation made under point No. 1, the appellant had got income of Rs. 2,60,000/- for two years, 1997-98 and 1998-99 and they have to be added as known source of income of the appellant.
(ii) As to the purchase of building materials and supervision of construction of R.M. Complex, belonging to the appellant :
It is a claim of the appellant that 10% allowance towards his purchase of building materials and the supervision of the building, the owner has to be allowed and the same to be deducted in the value of the assets. The cost of construction of the building during the relevant period is Rs. 6,41,250/-. According to D.W.5 approved assessor of the properties for the purpose of Income Tax and Property Tax, the value of the property could be assessed Rs. 6,41,250/- and in view of the personal efforts of the building owner viz., the appellant, allowances of 10% shall be made as deduction in the value of the building. Exhibit D-9 is the valuation report of R.M. Shopping Complex issued by D.W.5, to support his evidence. As per D.W.5, in the total value of construction of Rs. 6,41,250/- a sum of Rs. 64,125/- i.e., 10% has to be deducted and hence the actual value of the building could be Rs. 5,81,625/-. P.W.12 the investigating officer would also say in his evidence that he knows that as per CPWD Manual 10% allowance has to be allowed in case of self purchase of building complex and self supervision by the building owner. The trial Court did not accept the claim of the appellant and refused to make allowances of 10% in the total value of the building. In the considered view of this Court, there no stumbling block in accepting the value assessed by D.W.5, who is a qualified civil engineer and to allow 10% for the self purchase of materials and self supervision by the building owner viz., the appellant. In this regard, the evidence of P.W.3, who is Assistant Engineer of C.P.W.D. is relevant. He would say in his cross examination that he was not examined by the investigating officer regarding the valuation report, that the commercial complex cannot be equated with the sophisticated commercial complex, that he did not tell him what brand of cement, brick and other materials used in the construction and it is not feasible and that he has not given in his report the description of installation of electrical instruments for the commercial complex. The cumulative effect of the evidence of P.W.3 would show that the nature of the construction of the building does not require supervision of an expert and it is enough for the building owner to supervise it. No contra evidence is available to see that the building was entrusted to a civil contractor for construction. In these circumstances, 10% allowance has to be made for the said purpose. Hence, a sum of Rs. 64,625/- has to be added as known source of income of the appellant.
(iii) Income from Thrift Society Loan :
P.W.8 is Secretary of Indian Oil Employees Co-operative Thrift and Credit Society, Chennai, who has stated about the particulars of loan sanctioned for the appellant for every year right from 1992 till 1999 and after adjusting of earlier outstanding, payment of balance in cash was paid to the Appellant. As per his evidence, from 3.6.1992 to 27.1.1997 loans were sanctioned and after adjusting the earlier outstanding, remaining balance of Rs. 45,650/- in total was paid to him. More particularly speaking, from 8.6.1992 to 26.1.1997 covered by the check period a sum of Rs. 42,650/- has been received by the appellant as loan after adjusting the earlier borrowings which has to be added as known source of income. But this was significantly omitted by the trial Court.
(iv) Income as Gift in Ear-boring Ceremony :
Exhibit D-7 is the particulars of gifts received on the occasion of Ear-boring ceremony of the children of the appellant. D.W.3 would say that he knows the accused who has got three children, for whom in 1985 in Madurai Vilangudi, ear-boring ceremony was celebrated for which he has also attended, that the friends and relatives of the appellant about 500 members also participated and they extended gifts in the form of money and D.W.3 wrote the names of the persons who gifted the amount and that the total collection was Rs. 66,056/- and the particulars written by him is Exhibit P-7. The trial Court has totally rejected the claim of the appellant. However, it did not observe that no such ceremony could have been celebrated. It has found that vegetarian and non-vegetarian meals and dinner might have been served for which he might have incurred expenditure, that he did not say about the number of persons who took the food and that in the like functions expenditure would have been more than the amount received as gifts and therefore, it could not be considered to be an income. But, it is to be noted that there is no evidence on this regard and the findings of the trial Court are not on the basis of any material evidence on this point. The learned senior counsel for the prosecuting appellant would submit that atleast a portion of the gift might have been considered as income bearing the expenditure incurred for celebrating the ear-boring ceremony. This Court accepts the evidence of D.W.3 and holds that Rs. 63,026/- was received as gift and that atleast a sum of Rs. 30,000/- may be considered as income after deducting the expenditure for celebrating for the function.
(v) Income from overtime allowances :
(a) The appellant was eligible to get overtime allowances, in case if he worked over time. P.W.10 during the relevant period was working as Assistant Manager (Finance). His tenure was between 1995 and 2001 September. He was in charge of the disbursement of salaries and other allowances. He produced Exhibit P-26 and Exhibit P-33, the salary particulars of the appellant between March 1992 and June 1999. In his cross examination, he would admit that from February 1994 till 25.6.1999, on many occasions, the accused was paid over time allowances, that from 1974 to 1992 they do not have any record since they do not keep the records for more than eight years as per policy and hence, he is not in a position to say the exact amount paid to the appellant as overtime allowances during the above said period, that he cannot say the percentage of the overtime allowances of the net pay the accused got during the above period, that they do not have records, that if it is said that the accused would have got 30% to 40% of the net salary of overtime allowances during the said period, the answer is "may be" and that as per Exhibit P-2, the gross salary for the period from March 1992 to February 1993 was Rs. 64,469.90. Exhibit D-3 is the salary particulars addressed to the appellant from D.G.M. (HR). P.W.10 admits the same in his evidence which is signed by him. From February 1974 till February 1992 a sum of Rs. 3,29,202.07 was received by the appellant as net pay as per Exhibit D-3. It is admission of P.W.10 as aforestated that upto 25.6.1999 on many occasions the accused was paid overtime allowances. However, it could not be ascertained by P.W.10.
(b) As per the calculation of the learned senior counsel for the prosecuting appellant, as evident from Exhibit D-3 the net pay was Rs. 3,29,202.07 in which over time allowances of 30% has to be treated to have been paid to the appellant during relevant time and hence, a sum of Rs. 98,760/- should have been shown and added as known source of income. The contention has considerable force. Since the overtime allowances could not be ascertained for want of records as per the evidence of P.W.10, the trial Court has not considered the same. In the opinion of this Court, the overtime allowances should have also been added. Merely because it could not be ascertained as stated, the appellant should not be deprived of the right of the same being added to his known sources of income. Even if the sum of Rs. 98,760/- is not taken for consideration at least a sum of Rs. 75,000/- could be added as known sources of income in the account of the appellant.
20. In view of the discussion taken up by this Court with reference to the income derived by the appellant from various known sources, among which certain items were omitted to be considered by the trial Court and the item as to the loan borrowed by the appellant from HUF of Rs. 2,60,000/- should also be considered. The income from known sources would be higher than the value of alleged value of disproportionate assets. As per the above said discussion, the following could have been the known sources of income :
21. In view of the above, I am of the opinion that the above mentioned income from known sources would exceed the value for the alleged disproportionate assets. In such a view of this matter, it ought to be necessarily observed that there was no disproportionate assets at the hands of the appellant at the end of the check period. This point is answered accordingly. The appeal deserves to be allowed. In the result, the appeal is allowed setting aside the judgment of conviction and sentence passed by the trial Court. M.P.1 of 2010 is also ordered. Fine amount, if any, paid by the appellant, shall be refunded to the prosecuting appellant.
