(Prayer: Criminal Revision Case filed under Sections 397 and 401 Cr.P.C. against the order dated 27.03.2016 passed in Crl.M.P.No.67 of 2014 in C.C.No.30 of 2013 on the file of the Special Court for the cases under the Prevention of Corruption Act, Chennai and discharge the petitioner.)
This revision petition is filed challenging the order of dismissal of the discharge petition filed by the petitioner under Section 239 Cr.P.C. in Crl.M.P.No.67 of 2014 in C.C.No.30 of 2013, dated 27.03.2016 on the file of the Special Court for the cases under the Prevention of Corruption Act, Chennai.
2. The petitioner herein is the sole accused in C.C.No.30 of 2013. It is the case of the prosecution that he is a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act (for short, "the P.C. Act"). He joined in Government service as Surveyor on 07.01.1980 and thereafter, was promoted as Planning Assistant and posted in the office of the Regional Deputy Director, DTCP, Coimbatore; later he was transferred to the Directorate of Town and Country Planning (DTCP), Chennai on 18.08.2005; as on 01.01.2001, he was working as Draughtsman Grade-III in Coimbatore; between 23.01.2004 and 06.07.2004, he was working as Supervisor/Draughtsman Grade-II in Chennai; between 17.07.2004 and 17.08.2005, he was working in Coimbatore and between 18.08.2005 and 22.02.2008, he was working as Architectural/Planning Assistant in the Office of the DTCP, Chennai. At the end of the check period, i.e. as on 31.08.2008, he was working as Assistant Director, Nagercoil Local Planning Authority, Nagercoil. To calculate his income, assets, expenditure and savings, the check period was fixed from 01.01.2001 to 31.08.2008. It is the further case of the prosecution that the petitioner/accused was holding properties to the tune of Rs.6,89,038/- as on 01.01.2001, i.e. at the beginning of the check period and he was in possession of properties and pecuniary resources to the value of Rs.37,07,703/- as on 31.08.2008 at the end of the check period. Hence, the quantum of assets acquired by the accused during the period between 01.01.2001 and 31.08.2008 was Rs.30,18,665/-. During the check period, he had a total income from known sources of income to the extent of Rs.17,85,781/- and during the check period, the expenditure incurred by the accused for himself and his family members had been worked at Rs.14,55,173/-. Thus, it is the case of the prosecution that the accused has a resultant savings of Rs.3,30,608/- at the end of the check period. As on 31.08.2008, he was found to have acquired and possessed properties and pecuniary resources in the name of his daughter and wife, which are disproportionate to his known sources of income, to an extent of Rs.26,88,057/-, which as per the prosecution, the petitioner was unable to account for satisfactorily. Hence, as per the prosecution, the petitioner/accused had committed an offence punishable under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act. The charge sheet was filed against the petitioner before the trial Court in Crime No.11/AC/2009/CC-III for the said offences. Challenging the said criminal proceedings initiated against him, the petitioner has filed discharge petition under Section 239 Cr.P.C. before the trial Court, which was dismissed, against which, he has filed this revision petition.
3. Learned counsel for the petitioner contended that so far as the present case is concerned, the case was investigated by five investigating officers, out of which, L.W.34 S.M.Mohammed Iqbal, the then Deputy Superintendent of Police, Vigilance and Anti-Corruption, Chennai City-III Detachment, who had registered the case in Crime No.11/09/AC/CC-III and L.W.37 K.Somasundaram, the then DSP, V and AC, Chennai City-I Detachment, who had investigated the case and served the final opportunity notice on the petitioner, are the crucial witnesses.
4. Learned counsel further submitted that with regard to the registration of the case by L.W.34, before registering the case under the provisions of the P.C. Act, preliminary enquiry has not been conducted as envisaged under the provisions of the Vigilance Manual, which is evident from the statement of L.W.32 S.Lakshmi, the then Superintendent of Police, Central Range, V and AC, Chennai, shows that the case was registered against the petitioner, pursuant to the order of Government in Letter No.11144/VC-I/08-1, dated 05.01.2009. Thus, learned counsel submitted that the case as against the petitioner was registered only on the basis of the Government Order, without even conducting any preliminary enquiry as stipulated under the Vigilance Manual. Therefore, learned counsel submitted that on this ground of non-conduct of preliminary enquiry itself, the trial Court ought to have allowed the discharge petition filed by the petitioner and he ought to have been discharged from the case.
5. It is the next submission of the learned counsel for the petitioner that Section 13(1)(e) of the P.C. Act mandates obligation on the part of the investigating officer to go into the explanation given by the petitioner/accused with regard to the alleged disproportionate of savings to his known sources of income, and only when he was unable to account for such resources/properties, the investigating officer can reject the explanation and only on such rejection, the offence under Section 13(1)(e) of the P.C. Act will get attracted.
6. Further, the learned counsel for the petitioner submitted that originally, in the FIR, it has been stated as if the petitioner appears to have acquired the assets in his name and in the name of his wife disproportionate to his known sources of income to an extent of Rs.34,29,370/- as on 31.08.2008, but in the charge-sheet, it is stated that the revision petitioner acquired assets and pecuniary resources to the value of Rs.37,07,703/- as on 31.08.2008 at the end of check period. Moreover, in the charge sheet, it is further stated that as on 31.08.2008, the accused was found to have acquired and possessed properties and pecuniary resources in the name of his daughter and wife, which are disproportionate to his known sources of income to an extent of Rs.26,88,057/-. Learned counsel for the petitioner, in this regard, submitted that the petitioner's wife and daughter are having independent income and are doing various businesses and earned money. Learned counsel further submitted that from all the documents seized by the prosecution, it could be safely inferred that the petitioner's wife was making out independent income by owning Photocopy (Xerox) machine, also doing real estate business and getting brokerage, apart from doing tailoring work. Hence, learned counsel for the petitioner submitted that the documents seized by the prosecution themselves would show that the petitioner's wife earned a total amount of Rs.18,51,028/- from the financial years 1990-91 to 2004-05 from the said sources of income. Similarly, the petitioner's daughter earned Rs,25,000/- by way of taking tuition for school children and Rs.1,44,540/- and Rs.1,53,260/- by giving beautician training and received Rs.7,80,000/- (approximately) by way of gifts from her grandfather. Though detailed explanation was given by the petitioner on the above aspects, L.W.37 who had served the final opportunity notice, without considering the said explanation of the petitioner, has filed the charge-sheet for the offences under Section 13(2) read with 13(1)(e) of the provisions of the P.C. Act. Learned counsel further contended that absolutely, there is no material to show as to whether the explanation given by the petitioner was considered or not. In this regard, learned counsel invited the attention of this Court to paragraph 9 of the counter affidavit filed by the respondent before the trial Court, relevant portion of which reads as follows:
"9. .. .... In the reply for the Final Opportunity Notice of the petitioner, it is stated that his wife Tmt.Amsaveni has earned a total amount of Rs.18,51,028/- from the financial years 1990-91 to 2004-05 by way of Real Estate Brokerage, running of Xerox shop and by doing Tailoring. Similarly, he stated that his daughter Selvi.E.Narmadha has earned Rs.25,000/- by way of taking tuition for school children Rs.1,44,540/- and Rs.1,53,260/- by giving beautician training and Rs.7,80,000/- by gifts received from her grandfather. The above plea of the petitioner was not considered, since his wife, daughter have not maintained any book of records for their claim, and they have not declared their income to the Department of Income Tax. ... "
7. Thus, learned counsel for the petitioner, by relying upon the above portion of the counter affidavit, submitted that it is apparent that the respondent-investigating agency had not considered the explanation given by the petitioner with regard to the income earned by the petitioner's wife and daughter. Since the income of the petitioner, wife and daughter, had not been considered, it is also evident that the prosecution wants to suppress one portion of the case. Learned counsel therefore submitted that the trial Court, without considering the above aspects and related documents thereunder and without assigning any valid reasons, erroneously dismissed the discharge petition.
8. Learned counsel for the petitioner/accused further contended that the check period runs from 01.01.2001 to 31.08.2008, but the case of the prosecution is that the petitioner constructed a building in Door No.B-29, Brindhavan, Phase-III and No.921, Poonga Nagar, SITRA Civil Aerodrum Post, Coimbatore, during the check period. Learned counsel in this regard contended that the said building was duly assessed by the authorities/L.Ws.7 to 11 only in the year 2010 and originally, prior to 2008, there was only a ground floor, but the first floor was constructed only after 31.08.2008, but the prosecuting agency assessed both ground floor and first floor, for the purpose of filing case under Section 13(1)(e) of the P.C. Act, which is not legally sustainable. To substantiate this contention, learned counsel produced the relevant documents to the investigating officer to show that the ground floor alone was constructed during the check period and hence, the petitioner sought for assessment of only the ground floor, but this aspect was not even considered by the investigating officer. Therefore, learned counsel submitted that the assessment of income allegedly at Rs.17,19,541/-, is not proper and correct.
9. Learned counsel for the petitioner therefore submitted that had the documents produced by the petitioner been considered, the amount as alleged by the prosecution, would not have emerged. In this regard, learned counsel for the petitioner submitted that absolutely, there is no prima-facie materials to file the charge sheet against the petitioner for the offence punishable under Sections 13(2) read with 13(1)(e) of the P.C. Act. In support of his submissions, learned counsel for the petitioner relied upon a decision of the Supreme Court reported in AIR 1993 SC 313 (M.Krishna Reddy Vs. State, DSP, Hyderabad). He further submitted that if and only if the respondent (prosecution/investigating agency) is not satisfied with the documents/explanation submitted by the petitioner, the offence under Section 13(2) read with 13(1)(e) of the P.C. Act, would get attracted and the filing of the charge sheet would arise. In this case, without even considering the relevant/material documents produced by the petitioner and without even considering the explanation submitted by the petitioner in proper perspective, the charge sheet has been filed.
10. Learned counsel for the petitioner/accused further relied on a decision of the Supreme Court reported in 2012 (9) SCC 460 (Amit Kapoor Vs. Ramesh Chander) with regard to the scope of revision petition before this Court against the order of dismissal of discharge petition filed under Section 239 Cr.P.C., in which, the Supreme Court has exhaustively dealt with the ambit and scope of Sections 397 and 401 Cr.P.C. pertaining to the revisional powers of this Court.
11. Therefore, learned counsel submitted that while dealing with the discharge petition filed under Section 239 Cr.P.C., the Court has to consider all the records sent along with police report filed under Section 173(2) Cr.P.C. In the instant case, the prosecution has not placed all the records before Court, namely, the letter dated 05.01.2009 in No.11144/VC-I/08-1, based on which case was registered/investigated. Since relevant/material records were not placed by the prosecution while filing the charge-sheet before the Court, the trial Court ought to have allowed the discharge petition of the petitioner/accused.
12. Countering the above submissions, learned Additional Public Prosecutor appearing for respondent/Police, by filing counter affidavit, submitted that it is incorrect to state that L.W.37 has not considered the explanation given by the petitioner. In this regard, learned Additional Public Prosecutor drew the attention of this Court to the contents of the charge sheet and submitted that in the charge sheet, it has been clearly stated that as on 31.08.2008, the petitioner/accused was found to have acquired and possessed properties and pecuniary resources in the name of his daughter and wife, which are disproportionate to his known sources of income to the extent of Rs.26,88,057/- as shown in Statement-VII therein, which is annexed therewith, for which the accused is unable to account for, satisfactorily. By relying upon the above contents in the charge sheet, learned Additional Public Prosecutor submitted that only after considering the explanation of the petitioner and on being found that the petitioner/accused was unable to account for the same, satisfactorily, the charge-sheet has been filed. Therefore, learned Additional Public Prosecutor submitted that it is incorrect to state that without considering the explanation, the charge-sheet has been filed. Learned Additional Public Prosecutor further submitted that all the contentions raised by the learned counsel for the petitioner/accused, are all matters of evidence to be adduced during the course of trial and the same will not be a ground to discharge the petitioner. Hence, he submitted that trial Court has properly considered all aspects of the matter in proper perspective and rightly dismissed discharge petition, with which, this Court may not interfere and prayed for dismissal of the revision petition.
13. Keeping in mind the above submissions made on either side, I have given my anxious consideration to the same and perused the materials available on record.
14. The sum and substance of the arguments made by the learned counsel for the petitioner mainly falls on the following grounds:
(i) The statement of L.W.32 Lakshmi, the then Superintendent of Police, Central Range, V and AC, Chennai, shows that the case was registered pursuant to the orders of the Government in the said letter, dated 05.01.2009, which goes to show that no preliminary enquiry was conducted, without which, the case has been registered;
(ii) Though the prosecution has seized the documents which show that the wife and daughter are having independent income, the same were not considered by L.W.37, the then DSP, V and AC, Chennai City-I Detachment, and only in the event of not being satisfied with the explanation, the offence under Section 13(1)(e) of the P.C. Act would get attracted; but, in the instant case, without considering the explanation, the charge sheet has been filed, and hence, the petitioner is liable to be discharged from the case.
(iii) All the relevant material records were not placed by the prosecution and under such circumstances, the impugned order of dismissal of discharge petition passed by the Court below is liable to be set aside.
(iv) The check period was fixed from 01.01.2001 to 31.08.2008 and the property was assessed by the investigating agency only after the check period, and during the check period, only the ground floor of the building in question alone was constructed and therefore, the value of the property as assessed by the prosecution is incorrect and had the explanation given by the petitioner with relevant records, been considered, the offence under Section 13(1)(e) of the P.C. Act would not have arisen for registering the case against the petitioner.
15. With regard to the ground alleged by the petitioner that L.W.34 S.M.Mohammed Iqbal, the then DSP, has registered the case without even conducting preliminary enquiry, learned counsel for the petitioner made detailed submissions by inviting the attention of this Court to the statement of L.W.32 Lakshmi, who has stated in her statement that the complaint was lodged only pursuant to the order of the Government in letter, dated 05.01.2009, which would go to show that without conducting any preliminary enquiry, the case was registered as against the petitioner under Section 13(1)(e) of the P.C. Act. Hence, learned counsel for the petitioner/accused contended that the provisions contained in the Vigilance Manual has been violated by the prosecution. But in my considered view, the said submission will not serve as a ground for discharge. In this regard, the judgment of the Division Bench of this Court reported in 2013 (1) CWC 136 (Duraimurugan Vs. State), gives a fitting answer and the relevant portion of the said Division Bench judgment reads as follows:
"37. ... ... Reliance was also placed upon the decision of the Hon'ble Supreme Court of India in Vineet Narain Vs. Union of India, 1998 (1) SCC 226 : 1998 SCC (Cri) 307, wherein it has been held as follows:
"58.1.12. The CBI Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."
38. A careful reading of the above cited decision would disclose that the Accused cannot make any Complaint with regard to the non-following of the procedures contemplated under the Vigilance Manual and as per the decision rendered in Vineet Narain Vs. Union of India, 1998 (1) SCC 226 cited supra, any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."
16. Therefore, on a reading of the above Division Bench judgment, it is clear that for non-compliance of the provisions contained in the State Vigilance Manual, only disciplinary action could be taken as against the official concerned. Hence, the non-compliance of the provisions contained in State Vigilance Manual will not serve as a ground to discharge the petitioner/accused from the case.
17. With regard to the submission made by the learned counsel for the petitioner that L.W.37 K.Somasundaram, the then DSP, V and AC, Chennai City-I, has not considered the explanation given by the petitioner pertaining to the income of the petitioner's wife and daughter, it has to be stated that the said submission also falls to the ground, in view of the statement made in the charge sheet that as on 31.08.2008, the accused was found to have acquired and possessed properties and pecuniary resources in the name of his daughter and wife, which are disproportionate to his known sources of income to the extent of Rs.26,88,057/- (as shown in the annexure enclosed therein), for which, as observed in the charge sheet, the accused was unable to account for satisfactorily. Hence, these observations would go to show that the investigating officer has duly considered the explanation given by the petitioner, and it is not necessary for the prosecution to mention in the charge sheet each and every aspect as to the reasons for rejecting each and every accounts produced by the petitioner. Merely stating that the accused is unable to explain satisfactorily, itself, is sufficient to come to a prima-facie conclusion that explanation was considered by the prosecuting agency in proper perspective. Hence, the above submission of non-consideration of the petitioner's explanation also will not be a ground for discharge and the same is a matter to be alleged during the course of trial. However, it is for the petitioner to establish his defence during the course of trial with regard to the allegation for non-consideration of his accounts for income properly.
18. It is yet another submission of the learned counsel for the petitioner that all the relevant/materials/documents, more particularly, the Government letter, dated 05.01.2009, which is the basis/source for registration of the complaint, has not been shown in the list of documents annexed with the charge sheet. The order of the Government for prosecuting the petitioner is the letter dated 05.01.2009, which is culled out from the statement of L.W.32 S.Lakshmi, the then Superintendent of Police, Central Range, V and AC, Chennai. But non-placement of the said Government letter, dated 05.01.2009 will not be a ground for discharge and will not substantially affect the case, when the fact remains that the same is evident from the statement of L.W.32 and that all the other relevant material documents were duly produced by the prosecution by annexing the same with the charge sheet.
19. In the above context, a reference could be placed to the judgment of the Supreme Court reported in AIR 2013 SC 52 = 2013 (11) SCC 476 = CDJ 2012 SC 813 (Sheoraj Singh Ahlawat and others Vs. State of U.P. and others), wherein, in paragraphs 10 to 12, the Apex Court held as follows:
"10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purpose of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under:
"239. When accused shall be discharged:
If upon considering the police report and the documents sent with under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another, (2008) 2 SCC 561. That was a case in which a complaint under Sections 498-A, 406 read with Section 34 of the IPC was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C., holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
"11. It is trite that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
12. Support of the above view was drawn by this Court from earlier decisions rendered in State of Karnataka Vs. L.Muniswamy, 1977 Cri.L.J. 1125, State of Maharashtra and others Vs. Som Nath Thapa and others, 1996 Cri.L.J. 2448 and State of M.P. Vs. Mohanlal Soni, 2000 Cri.L.J. 3504. In Som Nath's case (supra) the legal position was summed up as under:
"If on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record by the prosecution has to be accepted as true at that stage."
20. Therefore, from the above decision of the Supreme Court, it is clear that if the complaint lodged against an accused is groundless, then the discharge petition can be entertained; and if there is strong suspicion founded on the materials placed before the Court with regard to the offence(s) committed by an accused, that would justify framing of charge(s) against the accused. In the instant case, the materials placed on record including the statement of the witnesses and the documents annexed in the charge sheet, show that there are prima-facie materials and grounds to frame charge against the petitioner/accused.
21. With regard to the submission made by the learned counsel for the petitioner that absolutely, there is no prima-facie case to file the charge sheet against the petitioner under Sections 13(2) read with 13(1)(e) of the P.C. Act, the learned counsel relied on a decision of the Supreme Court reported in AIR 1993 SC 313 (M.Krishna Reddy Vs. State, DSP, Hyderabad), wherein the Apex Court observed as follows:
"6. An analysis of Section 5(1)(e) of the Act, 1947 which corresponds to S.13(1)(e) of the new Act of 1988 shows that (it) is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending in law.
7. To substantiate a charge under S.5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused."
22. Hence, learned counsel for the petitioner/accused submitted that if and only if the respondent (investigating agency) is not satisfied with the documents/explanation submitted by the petitioner, the offence under Section 13(2) read with 13(1)(e) of the P.C. Act would get attracted and the filing of the charge sheet would arise and that in this case, without even considering the relevant/material documents produced by the petitioner, the charge sheet has been filed. But, in my considered view, prima-facie, the materials available on record show that before filing the charge sheet, the investigating agency has duly considered all the relevant materials including the proof of possession of properties/income beyond the known sources of income, and hence, the said submission cannot be countenanced.
23. With regard to the revisional powers of this Court under Sections 397 and 401 Cr.P.C., as relied on by the learned counsel for the petitioner/accused, the Supreme Court in-extensu dealt with the same in the decision reported in 2012 (9) SCC 460 (Amit Kapoor Vs. Ramesh Chander), and following the said decision of the Apex Court, in this case, this Court finds that all the material records were placed by the prosecution, and therefore, it is incorrect to state that the since the said letter, dated 05.01.2009 was not placed, the trial Court ought to have allowed the discharge petition.
24. Hence, in my considered opinion, the submissions made by the learned counsel for the petitioner/accused with regard to the merits of the case, as discussed supra, are all not the grounds for discharge of the petitioner from the criminal case. Hence, I do not find any valid ground to interfere with the impugned order of the trial Court, as this Court does not find any illegality or infirmity in the same and hence, the impugned order is liable to be confirmed.
25. Accordingly, this Crl.R.C. is dismissed, with liberty to the petitioner/accused to put-forth all his contentions during the course of trial. The trial Court shall complete the trial as early as possible, for which, the petitioner/accused and the prosecution shall co-operate.