Madrasdate High Court · 2007

No.1, 52, 52A, 52B, 52C, shopping complex building. According to him,the value of the property mentioned in Ex.P.4 come to Rs.3,12,990/- andthe value for the property assessed under Ex.P.5 comes to Rs.11,00,000/-.According to him, Ex.P.4 & 5 were prepared by him only after theinspection of the Assistant Engineer PWD and that the above saidbuildings were constructed before 1989 and that the prevailing cost forthe building materials in the year 1989 alone was taken into considerationwhile assessing the value of the building under Ex.P.4 & Ex.P.5.9.P.W.5 is the then Deputy Director of Income Tax Department.According to him, Ex.P.6-income tax file related to Mr.Palanismay (fatherof the accused) for the assessment year 1983-84, 1984-85, 1985-86 and thatfrom the year 1983 he was submitting the income tax report and has paidincome tax till 1993-1994 and his wife Rajammal has also paid income taxfor the year 1984-85 till 1987-88 under Ex.P.7.10.P.W.6 is the then accountant in the electricity department.Ex.P.8 is the file relating to the payment of electricity consumptioncharges for electricity connection No.79 relating to the period from June-1983 to January-1991.11.P.W.7 is the Bill Collector of Coimbatore Corporation. He wouldsay that for Door Nos.137, 138, 138A, 138B, 138C, 138D in Ganapathyvillage, Coimbatore and the corporation tax was paid for 1983-84 secondhalf year till 1985-86 second half year by Mr.Palanisamy at the rate ofRs.173.35 for half year and for the first half year for 1986-87 andsecond half year for 1989-90 he has paid Rs.221.95 and for the second halfyear Rajamal had paid house tax under Ex.P.11. 12.P.W.8 is the Assistant of the Coimbatore Corporation. He woulddepose that the water cess for Door No.6/138 C has been collected in thename of Mr.Palanisamy and water connection No.100587 stands in the name ofPalanisamy and Ex.P.12 is the relevant file relating to the payment ofwater cess by the said Palanisamy. 12a.P.W.9 has produed Ex.P.13 to show that the school fees collectedfrom the daughter of the accused viz.Rajakumari, Vijayalakshmi &Jaiyalashmi from the academic year 1982-83 till 1991-92 in the highersecondary school, Coimbatore.13.P.W.10 is the Secretary of CMS College, Coimbatore. According tohim, Selvi.K.Rajakumari, the daughter of the accused, had studied in the https://hcservices.ecourts.gov.in/hcservices/ said college in BBM course during 1990-92 and that she had paid Rs.3,885/-towards semester fees under Ex.P.14 and that at the time of joining in thecollege she had paid Rs.5,000/- towards donation. 14.P.W.11, Thangaraj, is the District Registrar of Ootacamund Regionand he worked as Sub-Registrar at Gandhipuram, Coimbatore, from 8.7.1991to 20.4.1994. He has furnished registration copy for document No.657/68under Ex.P.15, document No.1700/71 under Ex.P.16, Document No.1271/73under Ex.P.18, document No.1368/67 under Ex.P.19 and document No.368/67under Ex.P.20.15.P.W.12 is the then Principal of the CMN Metriculation HigherSecondary School, Coimbatore, in which school, the accused's sonRajeshkanna was studying from 1st standard to 4th standard from theacademic year 1986-87 to 1990-91 and during that period Rs.3,501/50 waspaid by him. Ex.P.21 is the relevant register.16.P.W.13, Natarajan, is a PA to Deputy Commissioner of CommercialTax, Coimbatore. He would depose that the accused Kandasamy was workingas a Deputy Commercial Tax Officer from 1.1.1983 to 31.10.1991 and thatEx.P.22 is the file relating to his pay, arrears of pay etc.17.P.W.14, Ramachandran, is the Assistant Manager of Indian OverseasBank, Ganapathy Branch during 1991. Ex.P.23 is the file relating to theSB account No.2272 for the period from January-1986 to 6th October-1990 forthe account holder Mr.Palanisamy and also for the SB account NO.9753 from30.8.1990 to 15.10.1990 for the account holder K.Dhanalakshmi.18.P.w.15 is the then Motor Vehicle Inspector of Trichy region. Asper Ex.P.24, motor cycle bearing No.TNY 6015 belongs to the accusedKandasamy and the name transfer was effected on 29.9.1978.19.P.W.16 is the retired Deputy Commercial Tax Officer. According tohim, as per Ex.P.25-file relating to the details of the assets bothmovable and immovable belong to the accused Kandasamy. Ex.P.26 is thestatement of assets submitted by the accused.20.P.W.17, Sundararajan, would depose that old door No.103 and newdoor No.138B belongs to the father of the accused under whom he is atenant for the above said building for a monthly rent of Rs.1,800/-.Besides rent he has also paid Rs.2,500/- towards advance and that therewas no rental agreement executed by him in favour of the father ofKandasamy and that the rent was increased to Rs.2,50/- from the year 1999. https://hcservices.ecourts.gov.in/hcservices/

21.P.W.18 is another tenant under the father of the accused for doorNos.138A and 138C for a monthly rent of Rs.500/- and the advance paid byhim was Rs.7,000/-. He would depose that the monthly rent of Rs.500/- waspaid by him to the accused till 1991.22.P.W.19 is also an another tenant under the father of the accusedfor door No.137, for a monthly rent of Rs.1,500/- and that the advancepaid by him was Rs.10,000/- and that he was in the said building as atenant till 1991.23.P.W.20, Mr.Subramaniam, is also a tenant under the accused. But hehas not supported the case of the prosecution. Hence, he was treated ashostile witness.24.P.W.21 is the another tenant under Mrs.Rajammal, the mother of theaccused, in door No.138D for a monthly rent of Rs.1000/- from 1983 andthat the rent was increased from 1988 from Rs.1000/- to Rs.1,500/- andthat she has paid Rs.5000/- towards advance. According to him, he is alsoa tenant under Palanisamy Gouner for a sum of Rs.1,200/- per month and theadvance paid by him was Rs.5,000/- and that he had vacated the premises inthe year 1992.25.P.W.22, Kaliyammal, would depose that she had advanced Rs.10,000/-as hand loan to Palanisamy Gounder. But she was treated as hostilewitness.26.P.W.23 is known to the accused Kandasamy. According to him, theaccused had conducted an ice cream Parlour in his name and he wasmaintaining the accounts of the said ice cream parlour and Ex.P.27 is therental agreement entered into between him and Palanisamy.27.P.W.25 is the then Deputy Manager of New India Insurance Company,Coimbatore, during the year 1994. Ex.P.29 is the letter demanding thepremium for insurance in respect of Rajdood motor cycle and Luna moped andEx.P.30 is the insurance policy in respect of Rajdood motor cycle.28.P.W.26 is the correspondent for Suburailu College of Pharmacy atMathukadai. According to him, K.Vijayalakshmi, the daughter of theaccused, was doing D-pharmacy during the year from 1986 to 1990 and thatRs.5000/- was collected from her towards donation. But she was alsotreated as hostile witness. https://hcservices.ecourts.gov.in/hcservices/

29.P.W.27 is an Auditor. According to him during 1986-87 when theaccused was working as DCTO his father Palanisamy was introduced by him bythe accused and that the income tax assessment report for Palanisamy andRajammal was prepared by him for the assessment year 1983-84, 1984-85,1985-86 & 1987-88 for Palanisamy and he has prepared an income taxstatement for Rajammal for the assessment year from 1984-85 to 1987-88under Ex.P.7. According to him, only on the basis of the particularsfurnished by the accused Kandasamy, he had prepared the above saidstatements for the parents of the accused.30.According to P.W.28, during the year 1988 he had acquaintance withthe accused through his assistant and that the accused had approached himfor preparing income tax assessment report for his parents Palanisamy &Rajammal and that pages 73 to 78 in Ex.P.6 are the income tax report forthe year 1988 to 1991 for Palanisamy was prepared by him.31.P.W.29 would admit that Ex.P.31 series were furnished by him tothe vigilance department and that they were submitted by the accusedKandasamy on 4.2.1992 and that they related to the family expenses met bythe accused from 1.1.1983 to 31.12.1990.32.P.W.30 would depose that the accused was issued with two gascylinder connections in the year 1986.33.P.W.31 and P.W.32 have not supported the case of the prosecution.34.P.W.33 is the Deputy Commercial Tax Officer. According to him,the accused Kandasamy was also working as Deputy Commercial Tax Officeralong with him and that he is a good friend of him. According to him hisfather Narayana Iyangar had lend Rs.1,00,000/- to Palanisamy Gounder, thefather of the accused Kandasamy. He would admit that no amount was paidin his presence. He was also treated as hostile witness. P.W.34 was alsotreated as hostile witness.35.P.W.35 would say that he had drafted the promisory note forNarayana Iyangar, wherein the accused Kandasamy signed as a witness.36.P.W.36 has not supported the case of the prosecution. Hence hewas treated as hostile witness.37.P.W.37 would say that the accused's father was drawing incomethrough milch cows. https://hcservices.ecourts.gov.in/hcservices/

38.P.W.38 is a neighbour of the of the accused. He would depose tothe effect that apart from the income derived from milk business and fromthe rental income, there was no other income for Rajammal and Palanisamy,parents of the accused.39.P.W.39 has given Ex.P.35-report dated 1.9.1990 in respect of thebuilding S.F.No.169/3 at Ganapathy village, Coimbatore. He has alsoassessed the value of the building in Ex.P.35.40.P.W.40 has not supported the case of the prosecution. Hence, hewas treated as hostile witness.41.P.W.41 is the branch manager of State Bank of India, Opanakarastreet branch, Coimbatore. Ex.P.36 is the extract relating to the savingsbank Account No.24/5439 relating to Palanisamy. According to him, the SBIsaving account was opened on 6.2.1990. Ex.P.37 is the copy of thestatement of account. Ex.P.38 is the office note for the medium term loanadvanced to Palanisamy. Ex.P.39 is the letter addressed by him to theInspector of Police, Vigilance and Anti Corruption Department, Coimbatore.According to him, Ex.P.36 to Ex.P.38 were prepared in their office. Hewould depose that on 10.9.1990 Palanisamy had obtained Rs.1,16,000/-towards medium term loan.42.P.W.42 is the then Inspector of Police, Vigilance and AntiCorruption department. As per the directions from the head office, heconducted enquiry on the basis of the complaint against the accused and hefound that the accused had amassed wealth disproportionate to the knownsource of income and that after conducting the enquiry, he had submittedhis report on 4.12.1990 to his higher officials and as per theinstructions from the head office he had registered a case underCr.No.7/91/Ac/CD on 16.3.1991 against the accused under Section 13(2) r/w13(1)(C) of the Prevention of Corruption Act. Ex.P.48 is the FIR.43.P.W.43 has not supported the case of the prosecution. Hence hewas treated as hostile witness.44.P.W.44 is the investigating officer. He had conducted theinvestigation and examined the witnesses and recorded their statements andafter completing the formalities has filed the charge sheet against theaccused. 45.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., the accused denied his complicity with the crime.The accused has examined D.W.1 to D.W.3 and exhibited Ex.D.1 to D.17.After going through the oral and documentary evidence, the learned trial https://hcservices.ecourts.gov.in/hcservices/ Judge has come to the conclusion that the charge levelled against theaccused under Section 13(1)(e) r/w 13(2) of the Prevention of CorruptionAct has been proved beyond any reasonable doubt and convicted andsentenced the accused to undergo 3 years RI and to pay a fine ofRs.10,000/- with default sentence. Aggrieved by the findings of thelearned trial Judge, the accused has preferred this appeal.46.During the pendency of the appeal, the accused died and his wifeK.Dhanalakshmi was impleaded in the appeal as per the order of this Courtin C.M.P.No.121 of 2007 dated 12.2.2007.47.Heard the learned counsel Mr.G.M.Ramasubramanian appearing for theappellant and the learned Additional Public ProsecutorMr.V.R.Balasubramanian and considered their respective submissions. 48.The point for determination in this appeal is whether the chargelevelled against the accused under Section 13(1)(e) r/w 13(2) of thePrevention of Corruption Act, has been proved beyond any reasonable doubtto sustain the findings of the learned trial judge in Special C.C.No.1 of1997 on the file of the Special Judge-cum-Chief Judicial Magistrate,Coimbatore?49.The Point:- The learned counsel appearing for the appellant wouldcontend that the charge against the accused is one under Section 13(1)(e)of the Prevention of Corruption Act, which reads as follows:-"13 Criminal misconduct by a public servant(1) A public servant is said to commit the offence ofcriminal misconduct,-(a) ............(b) ...........(c) ............(d) ...........(e) if he or any person on his behalf, is in possession orhas, at any time during the period of his office, been inpossession for which the public servant cannot satisfactorilyaccount, of pecuniary resources or property disproportionate tohis known sources of income.Explanation:for the purpose of this section "known sources ofincome" means income received from any lawful source and suchreceipt has been intimated in accordance with the provisions ofany law, rules or orders for the time being applicable to apublic servant.Admittedly the accused was a public servant working in the Commercial TaxDepartment as a Deputy Commercial tax officer. According to the https://hcservices.ecourts.gov.in/hcservices/ prosecutor, the accused had amassed assets to the tune of Rs.11,78,531/46during the period from 1.1.1983 to 31.8.1990 disproportionate to the knownsource of income. During 1985, the appellant, according to theprosecutor had purchased hendex colour TV worth Rs.12,000/- and in thename of his wife Dhanalakshmi in the Savings bank account NO.9753 ofIndian Overseas Bank, Ganapathy Branch and a sum of Rs.40,100/- was in thecredit as on 31.8.1990 in the name of the accused's mother Mrs.Rajammal.Door Nos.137 & 138, P.N.Palayam Road, Ganapathy Village in S.F.No.174, thecost of the construction come to Rs.1,15,512/-. No amount was found inher name. But an extent of 2 cents and 329 sq ft in S.F.No.174(1)Ganapathy village has been purchased in the name of Rajammal forRs.1,800/-. Apart from this no other immovable property was found in thename of Rajammal. The cost of the construction of door No.137, 138 atP.N.Palayam in S.F.No.174 in the year 1983 to the tune of Rs.1,15,512/-and the cost of the construction of door No.137 & 138 in Abboy Naidulayout, P.N.Palayam Road, in SF.No.174 during the year 1983-84 to the tuneof Rs.1,66,137/- and the cost of the construction of Door Nos.1, 52, 52A,52B, 52C in SF.No.168/3 Avarampalaym Road, Gnapathy village during theyear 1989-90 to the value of Rs.11,00,000/- and a sum of Rs.182/- insaving bank Account nO.P24/5439, in State Bank of India, Coimbatorebranch, are in the name of Palanisamy, the father of the accused. So itis the duty of the accused to explain the known source of income for theabove said amount and also the construction costs meeted out by his fatherfor the buildings in door Nos.137, 138, 1, 52, 52A, 52B, 52C inSF.No.168/3.49(A) On the side of the prosecution to substantiate that the fatherof the accused viz. Palanisamy without any source of income of his own hadconsutrcted the building in Door Nos.52A, 52B, 52C in S.F.No.168/3Avarampalayam Road, Ganpathy village at the cost of Rs.11,000/- and alsoto prove that the accused's father had constructed a building in Door Nos.137, 138 (ground floor) in P.N.Palayam at the costs of Rs.1,66,137/- andalso the construction of building in door No.137, 138 in P.N.Palayam inGanapathy village in S.F.No.174 at the costs of Rs.1,15,512/-, hasexamined P.W.2, P.W.4 & P.W.39, Assistant Engineer PWD, SuperintendentEngineer PWD, a private Civil Engineer, who had prepared the plane for theconstruction of the building in S.F.No.168/3 shopping complexrespectively. P.W.2 estimated the cost of the construction in door No.1,52, 52A, 52B, 52C and also the building in door No.137, 138, 138A, 138B,138C, 138D and 139 under Ex.P.2. Through P.W.4 the cost of theconstruction in Door Nos.1, 52, 52A, 52B, 52C and the shopping complexbuilding has been assessed and the assessment report is Ex.P.4.According to P.W.4, the value of the construction come to Rs.3,12,990/-.P.w.39 would admit that he had prepared the place for the construction ofthe shopping complex at S.F.No.169/3 and after the completion of the https://hcservices.ecourts.gov.in/hcservices/ construction he had visited the building and submitted a report dated1.9.1990 under Ex.P.35, wherein he has assessed the value of theconstruction of the shopping complex. In the cross-examination, he wouldadmit that while assessing the value of the construction the prevailingmarket value for the building materials in the year 1990 were taken intoconsideration. As per Ex.P.5 the value of the construction of thebuilding (shopping complex) is Rs.11,00,000/-. The defence taken by theaccused is that Palanisamy, the father of the accused, is an income taxassessee and that out of his own income the shopping complex at the costof Rs.11,00,000/- was constructed in door Nos.52,52A, 52B, 52C inS.F.No.168/3 in Avarampalayam road, Ganapathy village.49(B) D.W.1 is Palanisamy, the father of the accused. According tohim, he had joined in a chit conducted by Cheran Chit Companay as asubscriber for a chit to the tune of Rs.10,00,000/- and he bid the chitfor Rs.5,00,000/ and has received the sum of Rs.5,00,000/- from the abovesaid chit company and constructed the building in the above said shoppingcomplex. In support of this defence, D.W.1 has produced only M.O.1,Photo, said to have been taken at the time of the presentation of thecheque for Rs.5,00,000/- from the said Cheran Chit Company. D.W.1 has notproduced the said cheque or any other related document to show that he hadreceived Rs.5,00,000/- from the Cheran Chit Company. In this connectionit is relevant to refer Ex.D.8. D.W.1 has produced Exs.D.8 & 9 in supportof his contention to show that he has received Rs.5,00,000/- from theCheran Chit Funds Company. But a perusal of Ex.D.8 will go to show thatincluding the prize amount the liability of Palanisamy under the chitcomes to Rs.9,20,000/- the prize amount of Rs.5,00,000/-) and he has beendirected to furnish surety or guaranty for the disbursement of the chitamount of Rs.5,00,000/- that too in November-1991. Further, he has beendirected to secure surety before 24.12.1991 otherwise the amount will bedeposited in a bank. Ex.D.9 is the xerox copy of the mortgage deedexecuted in favour of M/s.Cheran Chit Funds company towards surety for theprize amount. It is pertinent to note from Ex.D.9 that the schedule ofproperty column is left blank and no proprietor has signed as a suretyunder Ex.D.9 to receive the amount mentioned in Ex.D.8 i.e. Rs.5,00,000/-.Absolutely there is no document produced by D.W.1-Palanisamy to show thatout of the prized chit amount of Rs.5,00,000/-, he had constructed theabove said shopping complex building in the above said survey numberproperties. He would rely on some of the promissory notes to show thathe had borrowed the amount from one Krishnasamy, Balan & Mariyappan.Krishnasamy was examined as P.W.35, who would say that he had prepared twopromissory notes each for Rs.50,000/- and gave to the accused himself.P.W.35 has not stated that consideration was passed under Ex.D.1— https://hcservices.ecourts.gov.in/hcservices/ promissory note. He would further state that likewise Exs.P.32 to 34promissory notes were also prepared by him and afterwards handed over tothe accused after getting the signature from his father Palanisamy. Inthe cross-examination also P.W.35 would admit that Palanisamy had executedthe promissory note in his name but he has not lend any amount toPalanisamy under the said promissory note. He would further admit in hiscross-examination that Exs.D.1 to 3, Promissory Notes, were prepared byhim. But subsequently they have been renewed by new promissory notes tosave limitation. D.w.1 has not examined any person, who had advancedloan to him under any of the promissory notes produced and mortgaged byhim in this case. Neither Balan nor Mariyappan two promisees underEx.D.11 and Ex.D.12 promissory notes have not been examined on behalf ofthe accused. D.W.2 is the wife of the accused. According to her, as perEx.D.15-'Will' she got Rs.30,000/-. But a perusal of Ex.D.15-Will said tohave been executed by her father would go to show that a direction hasbeen given by executor of the Will to sell some of the properties and togive Rs.30,000/- each to three of his daughters one being D.W.2-Dhanalaskhmi. There is no document produced by D.W.2 to show that inpursuance of Ex.D.15 a sale deed was executed in respect of the propertymentioned in the said sale deed. Out of the sale proceeds Rs.30,000/- wasgiven to her in terms of the Will. She would depose that she gotRs.30,000/- by way of cheque. But she is bereft of details when the chequewas handed over to her and when she deposited the said cheque forcollection etc. Further D.W.2 would depose that she had Rs.40,000/- fromout of the sale proceeds relating to another land. Absolutely there isno documentary evidence to substantiate the above said claim. 49(C)D.W.3, an employee under Cheran Chit funds Company, would deposethat under Exs.D.16 & 17 commission for the subscription was given to her.Ex.D.16 is for Rs.9,500/-. Ex.D.17 is for Rs.6,100/-. Those two receiptswill show that as an agent for Cheran Chit Funds Company, Dhanalaskhmi hasbeen given her due commission for joining the subscriptions for the chitsconducted by the Cheran Chit Funds Company.49(D)The learned counsel for the appellant relying on Ex.P.47, letterof reply sent by the accused to Investigating Officer, by way of defencehe would say that only from the prized amount in the chit both his fatherand mother have met the cost of the construction. He would specificallystate that the shopping complex in P.N.Palayam Road was constructed onlyat the costs of Rs.6,04,000/- and not at the cost of Rs.11,00,000/- asalleged in the complaint, whereas contrary to this defence taken by theaccused, D.W.1-father of the accused in his evidence would depose that outof the prized amount of Rs.5,00,000/- he had constructed the shoppingcomplex. As I observed earlier absolutely there is no document produced https://hcservices.ecourts.gov.in/hcservices/ on the side of the accused to show that his father Palanisamy had spentRs.5,00,000/- for the construction of the shopping complex out of theprize amount of Rs.5,00,000/- in the Cheran Chit Funds Company. P.W.39would depose that the cost of the construction was assessed under Ex.P.35taking into consideration the prevailing market value of the materials forconstruction. 49(E) The learned counsel for the appellant relying 2006 Crl.L.J. 319(D.S.P.Chennai Vs. K.Inbasagaran), would contend that the accused, hisfather and mother and his wife Dhanalakshmi were living under the sameroof and that they were having separate income from various sources andonly with the amount earned by them ie., with their separate income theshopping complex and other buildings were constructed. The facts of theabove said ratio decidendi reads as follows:-"The accused K.Inbasagaran was a senior IAS Officer of theGovernment of Tamil Nadu who stood charged for offencepunishable under Section 13(2) r/w section 13(1)(e) of thePrevention of Corruption Act, 1988, and he was convicted andsentenced by the learned Special Judge (XIth additional Judge,City Civil Court) at Madras, to undergo RI for one year and alsoto pay a fine of Rs.5,000/-,in default to undergo RI for threemonths. The accused preferred an appeal before the Madras HighCourt. The learned Single Judge of this Court acquitted theaccused from the above said charges. Against the said findingsof this Court, the State preferred the said appeal before theHonourable Apex Court.According to the prosecution, the accused entered into theIndian Administrative Service during 1970. During September,1993, there was a raid conducted by the Income-tx Authorities inthe houe of the accused. The raid by Income-tax departmentyielded a huge amount of cash amounting to Rs.30 lakhs, 7 goldbiscuits weighing 819 grams, 1118 dollars and certain documentsregarding purchase of immovable properties and also fixeddeposit receipts of the bank for Rs.25,000/- in the name oftheir parties. The Income-tax authorities registered the case.The defence taken by the accused before the trial Court isthat assets seized by the Income-tax department do not belong tohim, but they belongs to his wife, who was running certaincompanies and that his wife also accompanied him when he went toAmerica where she worked in apharmaceutical company and also asa clerk in State Bank of India and she earned salaries and wasalso assessed by Income-tax Department in America and at the https://hcservices.ecourts.gov.in/hcservices/ time of her return from America, she brought cash video cameraand a computer and she leased out the video camera for marriagecoverage and earned sufficient monies. She had started acomputer concern under the name and style of Tamil Nadu ComputerService by incurring a loan of Rs.2,00,000/- from Punjabnational Bank and computer centre also generated funds.Even though the trial Court not accepted this defence, theHigh Court had accepted this defence, which was challanged bythe State before the Honourable Apex Court. While confirmingthe findings of this Court, the Honourable Apx Court hasobserved in the above said ratio decidendi as follows:-The basic question that emerges in the present case iswhether the accused could be saddled with all theunaccounted money at his hand or not. It is the admittedposition that both the husband and wife were livingtogether. The wife was running three concerns thoguh thoseconcerns were running in loss. Yet she could manage toearn black money by selling goods without bills and amassedthis wealth without disclosing the same to the Income-taxauthority and when the raid was conducted she disclosed theunaccounted money and accepted herself for being assessedby the income-tax Department. Therefore, in this context,the question arises whether the joint possession of thepremises by the husband and wife and the unaccounted moneywhich has been recovered from the house could be said to bein exclusive possession of the accused. There is no twoopinion in the matter that the initial burden has to bedischarged by the prosecution. The prosecution in order todischarge that burden has examined the investigatingofficer, P.W.53-Shri Viswanathan, D.S.P. (Investigation).P.W.53-Viswanathan has collected all the materials fromvarious places and he has gien the details of hisinvestigation. He has also supported the recoveries whichhave been made by the Income-tax Department. He in hisstatement, has also deposed that some money was depositedat various branches of Punjab National Bank at Bangaloreand he has examined all the Senior Managers of PunjabNational Bank to show that various amounts were depositedin their Banks and the prosecution has also produced themin the witness box to substantiate their allegation asP.Ws.22, 23, 24, 25, 26 and 32. He has also examined thepersons against whose names those amounts were deposited inthe witness box. He has also examined the Income-taxOfficer as P.W.14. P.W.44-Assistant Director of Income-tax https://hcservices.ecourts.gov.in/hcservices/ (investigation) and P.W.51-S.Ganpathy Iyer. By thisevidence the prosecution has established that the money wasrecovered at the house of the accused as well as variouspurchases of immovable properties made by the wife of theaccused. The prosecution has tried to establish that allthe moneys which had been recovered from the house of theaccused, various deposits in the Punjab national Bank atvarious deposits in the Punjab National Bank at variousplaces through the influence of the Regional Manager ofPunjab National Bank and the recovery of the gold ornamentsas well as the recovery of foreign exchange ie., dollarsbelong to accused. Thus, the prosecution has tried toestablish that all the moneys belonged to the accused andafter taking sanction, prosecution was launched against theaccused. There is no two opinion in the mater that theinitial burden lies on the prosectuion. In the case ofC.S.D. Swami vs. The State reported in AIR 1960 SC 7, thisCourt has taken the view that in Section 5(3) of thePrevention of Corruption Act, 1947, a complete departurehas made from the criminal jurisprudence still initialburden lies on the prosecution and in that context it hasbeen observed as follow:-"Section 5(3) does not create a new offence but onlylays down a rule of evidence, enabling the Court toraise a presumption of guilt in certain cricumstances– a rule which is a complete departure from theestablished principle of criminal jurisprudence thatthe burden always lies on the prosecution to prove allthe ingredients of the offence charged, and that theburden never shifts on to the accused to disprove thecharge framed against him."Therefore, the initial burden was on the prosecution toestablish whether the accused has acquired the propertydisproportionate to his known source of income or not. But atthe same time it has been held in a case of State of M.P. Vs.Awadh Ksihore Gupta and others, reported in (2004) 1 SCC 691that accused has to account satisfactorily the money received inhis hand and satisfy the court that his explanation was worthyof acceptance. In order to substantiate the plea taken by theaccused that all the moneys which had been received belonged tohis wife and in support thereof he has examined as many as 13witnesses including himself, his wife and his son-in-law.D.W.12 is the wife of the accused. She has deposed that theentire money belonged to her. She has admitted the raid on her https://hcservices.ecourts.gov.in/hcservices/ house and she has also admitted that she has amassed the wealthby selling cycle rims and leather products without any bill andout of the money amassed by her she had persuaded her husband todeposit the same at various Banks. She has come forward andadmitted the recovery of the foreign exchange at her house andshe has accounted for thesame. ..................................................................................................................................Now, in this background, when the accused has come forward withthe plea that all the money which has been recovered from hishouse and purchase of real estate or the recovery of the goldand other deposits in the Bank, all have been owned by his wife,then in that situation how can all these recoveries ofunaccounted money could be laid in his hands. The question iswhen the accused has provided satisfactorily explanation thatall the money belonged to his wife and she has owned it and theincome-tax Department has assessed in her hand, then in thatcase, whether he could be charged under the Prevention ofCorruption Act. It is true that when there is joint possessionbetween the wife and husband, or father and son and if some ofthe members of the family are involved in amassing illegalwealth, then unless there is categorical evidence to believe,that this can be read in the hands of the husband or as the casemay be, it cannot be fastened on the husband or head of family.It is true that the prosecution in the present case has triedits best to lead the evidence to show that all these moneysbelonged to the accused but when the wife has fully owned theentire money and the other wealth earned by her by not showingin the Income-tax return and she has accepted the wholeresponsibilities, in that case, it is very difficult to hold theaccused guilty of the charge. Accordingly, dismissing the appeal, the Honourable ApexCourt, have confirmed the acquittal of the accused.But the above said facts will not be applicable to the present facts ofthe case because the defence taken in the case on hand is that from out ofthe chit prize amount Rs.5,00,000/-, the father of the accused hadconstructed the shopping complex. But absolutely in this case, there isno evidence produced by way of defence by D.W.1, the father of theaccused, to show that he has received Rs.5,00,000/- from the Cheran ChitFunds Company. https://hcservices.ecourts.gov.in/hcservices/ 49(F)The learned Additional Public Prosecutor relying on 2001 SCC (Cri)1209 (K.Ponnuswamy Vs. State of Tamil Nadu), would contend that when theaccused's income was proved to be meagre, but during that period it wasbrought to light that he is owning assets disproportionate to the knownsource of income he is liable to be convicted under Section 13(1)(e) r/w13(2) of the Prevention of Corruption Act. The facts of the above saidratio decidendi is that:The accused in that case is the then Minister of Tamil NaduGovernment. According to the prosecution, during the chequeperiod when the accused became the Minister, he acquired in hisname and in the names of A-2 to 5, pecuniary resources andproperty disproportionate to his known source of income. Theaccused were charged under Section 13(1)(e) r/w 13(2) of thePrevention of Corruption Act. After conviction the trial Courtdirected confiscation of the pecuniary resources and propertiesto the extent of Rs.77,49,337/77. On appeal this Courtacquitted A2 to A5 but confirmed the conviction of theA1/appellant, which necessitated A1 to move before theHonourbale Apex Court.The defence taken by the accused was that the assetsbelongs to A2 to A5 and that they are their self acquiredproperties. Negativing the evidence of the accused, theHonourable Apex Court has held as follows:-We are presuming that A4 had independent income. However,prior to the check period A4 has not been afflicted by anylove and affection and had not made any gifts to any memberof the family of A1. Prior to the check period A4 did noteven extend help to pay off the small debts of A1 evenafter the decrees had been passed against A1. Yetsuddenly, during the check period ie. When A1 is aMinister, A4 donates large sum of money to A2 and A3. Thenatural presumption, considering the common course ofnatural events and human conduct is that A1 would haveused his nephew A4 to transfer his (A1's) monies to A2 &A3. This is the supposition which any prudent man underthese circumstances would act upon considering the naturalcourse of events. The trial Court and the High Court thusrightly took this as proved by legal evidence. Theprosecution having established by legal evidence that themonies were transferred by A1 to A2 & A3 through A4 andthat these were monies of A1 in the hands of A2 & A3, itwas for the appellant to satisfactorily account for thegifts. He could have done so by showing that even beforethe check period A4 had made gifts of substantial amounts. https://hcservices.ecourts.gov.in/hcservices/ It has not been claimed by A2and-or A3 and/or A4 thatbefore the check period also A4 had made any such gifts.It is also not their case that after the check period giftswere made. Thus the trial Court and the High Court wereright in not believing the case of gifts supposedly madeout of a sudden burst of love and affection. Both the trialCourt and High Court were right in convicting theappellant. Accordingly the appeal preferred the appellant/A1 wasdismissed by the Honourable Apex Court.49(G) In this case, except the accused no other relative was roped inbecause there was no allegation that they were having disproportionatewealth to the known source of income. By way of defence only the accusedby examining his parents and wife took a plea that the construction of thebuilding in the sopping complex in the above mentioned survey numberproperties were constructed from out of the income of his father, motherand wife. Having taken such a defence, the accused have miserably failedto prove that his parents had known source of income to construct theshopping complex worth about Rs.11,00,000/- in the year 1990. It is notdenied that the shopping complex and other buildings are in the name ofthe accused. Under such circumstances, it is the bounden duty of theaccused to prove that only from the known source of income these buildingswere constructed by him. Taking into consideration all the above saidcircumstances and facts, the learned trial Judge has come to the correctconclusion that the charge levelled against the accused under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, has been provedbeyond any reasonable doubt. Under such circumstances, I do not find anyreason to interfere with the findings of the learned trial Judge. Pointis answered accordingly.50.In fine, the appeal is dismissed confirming the judgment of thetrial Court in Special C.C.No.1 of 1997 on the file of the Special Judge-cum-Chief Judicial Magistrate, Coimbatore. ssvSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To,1.The Special Judge-cum- Chief Judicial Magistrate, Coimbatore.2.The Public Prosecutor, High Court, Madras.3.The Inspector of Police, Vigilance and Anti Corruption, Coimbatore.+ One cc to Mr. Ram and Ram Advocate SR 35932ASM (co)sg 28/6/07Crl.A.No.1158 of 200019.06.2007