Accused cannot be asked to explain the source of income of others with reference to the properties standing in their names by which accused has no claim or control.

(Criminal Revision Cases are preferred against the order passed in Crl.M.P.Nos 374, 375, 383 and 376 of 2004 respectively, dated 21.7.2004 in Spl.Case.No:7 of 2003, on the file of the learned Chief Judicial Magistrate-cum-Special Judge, Villupuram.)

Common Order

These Criminal Revision Cases are filed by the Superintendent of Police, Vigilance and Anti-Corruption, Cuddalore, against the order of discharge passed by the learned Chief Judicial Magistrate/Special Judge, Villupuram, passed in Crl.M.P.Nos 374, 375, 383 and 376 of 2004 respectively, dated 21.7.2004 in Spl.Case.No:7 of 2003 discharging the respondents/accused 1 to 5 of the charges made under Sections 13(2) r/w 13(1)(3) of the Prevention of Corruption Act, 1988 and under Section 109 IPC.

2. The brief facts of the case are as follows:-

A.1, K.Ponmudi is a public servant held office as a State Minister between 13.5.1996 and 2001. A.2 is his wife. A.3 is his mother-in-law. A.4 and A.5 are his friends. A.3 to A.5 are trustees of one Siga Educational Trust. A final report was filed by Deputy Superintendent of Police, V & AC, Cuddalore against the accused for offences under Sections 13(2) r/w.13(1)(e) of the Prevention of Corruption Act r/w. 109 IPC in Special Case No.7 of 2003 on the file of the Chief Judicial Magistrate, Special Judge, Villupuram. The prosecution recorded statements of 228 witnesses and 318 documents are relied on and produced before the Court. The cheque period was fixed as 13.5.1996 to 31.3.2002. The allegation against two sons of A.1 and A.2 who were earlier implicated in the FIR have been dropped in the final report. However, final report was filed as against A.1 to A.5 treating the incomes of his wife, A.2, mother-in-law, A.3, and the Trustees of Siga Educational Trust A.3 to A.5 as that of the income of A.1. In the final report the incomes and earnings of A.2, A.3 and the Siga Educational Trust were included as that of the income of A.1. The following is the calculation made by the prosecution in the final report:-

3. On 23.8.2003, A.1 was called upon to account for the quantum. A.1 gave his reply dated 10.10.2003 disputing the contents of the letter of the Investigating Officer. According to the respondents without considering the reply and without any notice to A.2 to A.5, the earnings of A.2 to A.5 have been included as that of the income of A.1.

4. According to the respondents, the prosecution failed to accept the income of A.2 and A.3 to A.5 when there are materials available on record in the form of income-tax assessment orders. The source of income is known to the Investigating Agency and it has no right to reject the source of income which is by way of donation and which had been admittedly proved by receipts and which had been disclosed by the Trust to the Income Tax Department by their regular returns. There is no evidence to show that the accused 2 to 5 are the benami of the first accused and that the prosecution has failed to place any material to connect the accused 2 to 5 for acquisition of the assets in their names had utilsied the funds of A.1 and thus the initial burden of proof has not been discharged by the prosecuting Agency. When A.1 has sent an explanation that he has nothing to do with the properties acquired by others, the Investigating Agency ought to have given an opportunity to the other accused to explain the source of income for acquisition of their properties which admittedly stand in their names.

5. The respondents/accused filed Crl.M.P.Nos:374, 375, 383 and 376 of 2004 under Sections 239 Cr.P.C., to discharge them before the Learned chief Judicial Magistrate, Villupuram and the learned Judge allowed the Petitions filed by the respondents/accused on various grounds.

6. It is worth to mention some of the case laws on this subject decided in the following judgments.

7. In Vedagiri, In re (1985 M.L.J (Criminal) 151), it is held as follows:-

"Under Section 5(1) (e) of the Act, it is not merely the possession of the