The excess of surplus income being less than 10% may not justify the presumption of disproportionate assets under Sec. 5 of the Prevention of Corruption Act.

JUDGMENT

1. The accused has questioned the correctness o f the judgment dtd. 23/2/2011 in Spl. Case No .110/2001 on the file o f III Addl. District and Sessions Judge, Mysuru convicting him for the o ffence under Sec. 13(2) read with Sec. 13(1)(e) of the Prevention o f Corruption Act ('PC Act' for short) .

2. The events that led to prosecution of the accused are as below: The accused was working as Secretary of Mandal Panchayat, Byrapura, T.Narasipura Taluk, Mysuru when the raid was conducted on his house and o ffice on 29/12/1998 . He joined the service of the Government as Grama Sevak on 28 .08.1964 and worked in various capacities till his superannuation. The FIR was registered with the allegation that the accused had spent money and acquired assets to the extent of Rs.6,48,085.13 over and above his known source of income of Rs.14,65,528 .75..00 Ultimately after investigation, the investigating officer ('IO' for short) came up with the following figures .

3. The prosecution examined 14 witnesses and relied upon the documents as per Exs.P1 to P51. The accused also led defence evidence by examining 17 witnesses and producing 14 documents marked Exs.D1 to D14.

4. A fter assessing the evidence, the trial court arrived at a conclusion that Rs.10,94,580.00 was the total value of the assets found to be disproportionate to the known source of income o f the accused. Giving a margin o f 10%, it was held that the value o f the disproportionate assets could be taken as Rs.9 ,85,122.00. To come to this conclusion the trial court has accounted certain income which the IO left out and given deduction to certain amount which the IO had disallowed.

5. I have heard the arguments o f Sri C.R.Gopalaswamy, learned senior counsel for the appellant and Sri B .S.Prasad, learned counsel for the respondent-Lokayukta.

6. Sri Gopalaswamy while arguing mainly attacked the calculation made by the IO . He submitted the following points.

i. The son o f the accused , namely, Balaraju was a Civil Engineer. He constructed a house on site No .741 at Bannimantapa, Mysuru. As per prosecution, Rs.7,41,983.00 was the cost of construction. Because Balaraju supervised the construction work himself, 10% of the cost of construction should have been deducted and thereby the total cost of construction should have been taken as Rs.6,67,785.00 and Rs.74 ,198.00 being the 10% amount should have been added to the income o f the accused.

ii. Balaraju obtained over-draft facility from the Bank as evidenced by Ex.P37 and P38. As on 28/12/1998, a sum of Rs.89 ,705.06 was due to be repaid to the Bank. The IO did not treat this sum a liability and credit it to the income of the accused.

iii. The second son of the accused , namely, Dayanand was running a taxi. He purchased a car by borrowing a sum of Rs.1,50,000.00 from State Bank o f India, Mysuru and earned income of Rs.24,000.00 from taxi. Though the IO admitted the purchase o f taxi, income of Rs.24 ,000.00 was not considered.

iv. Dayananda purchased landed property in Sy.No .88/1 of Hosahalli village for a sum o f Rs.61 ,000.00. Without any reason, the IO assessed the purchase value as Rs.1 ,05,000.00. Therefore Rs.44 ,000.00 was shown as excess expenditure.

v. Accused had eucalyptus plantation in his land bearing Sy.No.82/2 measuring 5 acres 20 guntas . There were nearly 25000 to 30000 eucalyptus trees. The accused sold the trees for Rs.4 ,46 ,120.00, but the IO considered the income by sale o f trees as Rs.1 ,79,500.00. The accused had also sold the bark and the stems of the trees and received a sum of