2006 Supreme(SC) 12

2006(1) Supreme 138
Supreme Court of India
(From Madras High Court)
S.B. Sinha and R.V. Raveendran, JJ.
R. Janakiraman —Appellant
versus
State, rep, by Inspector of Police, CBI, SPE, Madras —Respondents
Criminal Appeal No. 773 of 2000
Decided on 4-1-2006
Counsel for the Parties :
For the Appellant : A.T.M. Rangaramanujam, Sr. Advocate, V.J. Francis, A. Radhakrishnan, Anupam Mishra and Jenis Advocates.
For the Respondent : A. Sharan, ASG, Amit Anand Tiwari, Ms. Salinee Ranjan and P. Parmeswaran, Advocates.

Important point
Travelling Allowance is not a source of income for the purpose of ascertaining from known sources as such allowance is ordinarily meant to compensate the officer concerned for his out of pocket expenses incidental to the journeys performed by him for his official tour/s.

Headnote:(i) Prevention of Corruption Act, 1947—Section 5(1)(e) rw/s 5(2)—Conviction for possessing assets in excess of all known sources of income—Presumption that such assets were procured by illegal means by misusing official powers and influence—Appellant had joined the Railway on 5.7.1958 and was promoted as a Permanent Way Inspector and then as Assistant Engineer on 28.5.1981—Appellant’s family consisted of himself, his wife and two children—He had six brothers and three sisters and had no ancestral properties—Search was conducted in appellant’s house on information that appellant was corrupt and had amassed assets disproportionate to his income—On opening his steel almirahs kept in the house of appellant, a sum of Rs. 2,94,615/- in cash was found in ten different containers (biscuit tins, brief cases, etc.)—Certain documents were also seized—Value of assets acquired by appellant beyond his known source of income was found to be Rs. 4,63,551.60—Special Court held that assets to an extent of Rs. 3,05,985.39 remained unaccounted and unexplained—Claim of appellant that he had taken Rs. 2,50,000/- as loan from PWs 11 and 15, was rejected—High Court confirmed the conviction and sentence—It rejected appellant’s claim for certain additions to the income—PWs 11 and 15 stated that loan documents were created to make the lending transaction to appear genuine even though no money was advanced—Claim of appellant that travelling allowance should be treated as income—Whether can be allowed—(No)—Conviction of appellant held sustainable.

       Held : The recovery of Rs. 2,94,115/- in cash from the steel almirahs of the appellant is not disputed. The appellant does not disown the amount but admits that it belongs to him. His explanation as to how he obtained the said money is clearly unacceptable. The persons from whom he allegedly borrowed the said money, Rs. 2,50,000/-, have denied having lent the said amount. We, therefore, find no error in the concurrent findings of the trial court and the High Court that the appellant had not borrowed the said amount from PW-11 and PW-15 and that the same was part of the III-gotten money acquired as illegal gratification. The appellant having failed to satisfactorily account for the assets beyond his known sources of income to the said extent of Rs. 2,50,000/-, is guilty of an offence under section 5(1)(e) of the Act. In view of our said finding, it is really unnecessary to examine the other disputed amounts namely alleged loan from brothers and brothers-in-law (Rs. 40,000/-), travelling allowance [Rs.22,922/60], bonus [Rs. 8,000/-], difference in interest on fixed deposits [Rs. 34,578/37]; and difference in cost of construction (Rs.28,740/-). (Paras 14 and 15)

       The Special Judge convicted and sentenced the appellant under section 5(1)(e) read with section 5(2) of the Act. In an appeal by the accused against the said conviction and sentence, the High Court neither modified the finding of guilt under Section 5(1)(e) nor the sentence under Section 5(2). All that it has done is while affirming the finding of guilt recorded by the Special Judge in regard to the disproportionate wealth, to recalculate the exact amount of disproportionate wealth with reference to the evidence, which is permissible under section 386(b)(ii) which provides that the appellate court may, in an appeal from a conviction, alter the finding, maintaining the sentence. If an appellate court may alter the finding of guilt of the accused from one section to another, while maintaining the sentence, we see no reason why the extent of the offence should not be changed in an appeal against conviction. We are, therefore, of the view that the High Court did not exceed its jurisdiction in exercising the power of appeal under section 386 IPC. (Para 16)

       This Court in C.S.D. Swami v. The State [AIR 1960 SC 7] has held that prosecution would not be justified in concluding that travelling allowance was also a source of income (for the purpose of ascertaining the income from known sources during the check period) as such allowance is ordinarily meant to compensate the officer concerned for his out-of pocket expenses incidental to the journeys performed by him for his official tour/s. As travelling allowance is not a source of income to the Government servant but only a compensation to meet his expenses, the prosecution while calculating the sources of income during the check period, need not take it into account as income. However, it is open to the Government servant to let in evidence to show that he had in fact saved something out of the travelling allowance. It is for the court then to accept or not whether there was such actual saving. But the question of automatically considering the entire travelling allowance as a source of income does not arise. In this case, as the appellant did not lead any specific evidence to show that he had made any savings from out of the travelling allowance, the claim for inclusion of TA in income, is untenable. (Para 17)

       (ii) Evidence Act, 1872—Sections 91 and 92—Principles relating to—Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91—Rule contained in Section 92 will apply only to the parties to the instrument.

       Held: i) Section 92 is supplementary to section 91 and corollary to the rule contained in section 91.

       ii) The rule contained in section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, section 91 may apply to strangers also.

       iii) The bar under section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be.

       To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.

       Applying the aforesaid principles, it is clear that the bar with section 92 will apply to a proceeding inter-parties to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon. (Para 11)