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2018 Supreme(Mad) 1726
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
D. Janardhanan & Another – Petitioners
Versus
State rep. by its Deputy Superintendent of Police, Vigilance & Anti Corruption, Cuddalore – Respondent
CRL.A. Nos. 347 & 497 of 2005
Decided On : 03-07-2018
For the Petitioner:B. Kumar, Senior Counsel, R. Murali, Advocate.
For the Respondent: R. Prathap Kumar, Additional Public Prosecutor.
Headnote:
Indian Penal Code,1860 - Section 109 and 409 - Prevention of Corruption Act, 1988 - Section 13(1)(e), read with 13(2) – Criminal Procedure Code, 1973 - Section 374(2) and 454 - Criminal breach of trust - Confiscation of properties Appellants who are husband and wife - They were tried as 1st and 2nd accused respectively in Special Case No. on file of learned Chief Judicial Magistrate District - For sake of convenience, both appellants hereafter referred at their capacity as arrayed before learned trial Court - Though 2nd accused has been acquitted by learned trial Court, she also has preferred Crl.A.No. as against order of confiscation of properties - Further, appellant/A1 was found guilty by learned trial Court under Section 13(1)(R) r/w 13(2) of Prevention of Corruption Act, 1988 - Thereby he was convicted under Section 13(1)(e), read with Section 13(2) of Prevention of Corruption Act - At conclusion of trial, learned trial judge had acquitted her from all charges, ironically confiscation was ordered by learned trial judge – Held, As the investigation officer especially who be informant ought to have narrated all factual aspects in F.I.R - Though it is not compulsory to bring all the factual aspects in F.I.R as same is not an encyclopedia, but case on hand is in different footing - Further as pointed out earlier expenditures incurred by 1st accused/ appellant are inflated and income sources of DW-3 from his agriculture are not taken up as income are considered to be serious lacuna - Hence this Court is constrained to hold that arguments advanced by learned senior counsel are having legally justifiable force to consider grounds of appeal - Crl.A.No. is allowed and judgment and conviction order passed in Spl.C.C.No.5 dated on file of learned Chief Judicial Magistrate/Special Judge, District, is set aside - Crl.A.No. of is allowed and judgment passed in Special C.C.No. dated on file of learned Chief Judicial Magistrate/Special Judge District in respect of confiscation of properties of appellant/A2 contained in items 4 to 31 in Statement-II, is set aside;
1. The instant appeals have been preferred by the appellants who are husband and wife. They were tried as 1st and 2nd accused respectively in the Special Case No.5 of 1998 on the file of the learned Chief Judicial Magistrate, Cuddalore District, Cuddalore. For the sake of convenience, both the appellants hereafter referred at their capacity as arrayed before the learned trial Court. At the conclusion of trial of the aforesaid case, the learned trial Court found guilty of the 1st accused who is appellant in Crl.A.No.347 of 2005 on the file of this Court.
2. Though the 2nd accused has been acquitted by the learned trial Court, she also has preferred the Crl.A.No.497 of 2005 as against the order of confiscation of properties. Further, the appellant/A1 was found guilty by the learned trial Court under Section 13(1)(R) r/w 13(2) of the Prevention of Corruption Act, 1988. Thereby he was convicted under Section 13(1)(e), read with Section 13(2) of the Prevention of Corruption Act. As he was found guilty, he was sentenced to undergo a Rigorous Imprisonment for a period of 2 years with a further direction to pay a fine of Rs.50,000/- and in default to undergo Rigorous Imprisonment another period of three months. As against the judgment of the learned trial Court Appellant 1st accused has preferred the instant appeal under Section 374(2) of Cr.P.C.
3. As far as the 2nd accused is concerned, she was acquitted from all the charges as she had not been found guilty. At the same time the 2nd accused has preferred the appeal under Section 454 of Cr.P.C., as against the judgment of confiscation of the properties in item 4 to 31 in the statement. Admittedly the judgment of acquittal of the 2nd accused has not been challenged by the prosecution. Since, both the appeals are arising out of a common judgment dated 15.04.2005 both the appeals are clubbed together and disposed of by this Common Judgment.
4. In order to prove the case prosecution has examined PWs-1 to 50, marked exhibits P-1 to P-155 and on behalf of the accused DWs-1 to 13 were examined and marked Exhibits D-1 to D-93 and on either side no material object was produced.
5. The prosecution case was triggered based on the preliminary enquiry in pursuance of reliable information received by Pw-50 namely one Mr. R.D. Dhakshanamoorty, Deputy Superintendent of Police, Vigilance and Anti-corruption wing, Cuddalore. PW50 initiated the prosecution by registered the FIR in Crime No.2 of 1997 which is marked as Exhibit-P147. The Further case of the prosecution is that in pursuance of the case registered as against the 1st accused for the offence under Sections 13(2) r/w 13(1) (e) of Prevention of Corruption Act 1988, investigation was commenced. In the course of the investigation searches were conducted at the premises of the 1st accused and their relatives and it was the case that in the course of the searchers incriminatory materials were seized.
6. According to the prosecution, the Investigation Officer restricted his investigation with a specific check period from 17.06.1991 to 13.05.1996.
7. The allegation of the prosecution is that the 1st accused/appellant was living a mediocre life prior to the check period but during the check period he had acquired movable and immovable assets in his name and in the name of his wife, who is second accused and appellant in Criminal Appeal No.497 of 2005, disproportionate to the known sources of income of the 1st accused. Further, the 2nd accused being the wife of the 1st accused lent all her intentional and active support to the 1st accused in the acquisition of movable and immovable properties. The further case of the prosecution is that A1 was elected as Member of legislative Assembly from Villupuram Constituency in the year 1991 general election on 17.06.1991. Thereafter, he assumed the office of Minister for Milk and Dairy Development and Anima
