Akila Ramachandra Prasad vs State

M. Sathyanarayanan, J—The appellant is the first accused in C.C. No. 30 of 1996 on the file of the Court of Special Judge for CBI cases, Madurai. The appellant/first accused was tried along with his wife/second accused and his sons/accused 3 and 4 and two other private individuals, arrayed as accused 5 and 6, in the above said calendar case. Accused 1 to 6 were charged for the commission of offences punishable under Sections 120B I.P.C. and the appellant/first accused was charged for the commission of offence punishable under Section 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988 [in short "PC Act"]. The Trial Court, vide impugned judgment dated 24.06.2005, has acquitted the accused 2 to 6, but convicted the appellant/first accused for the commission of the offence under Section 13(2) r/w. 13(1)(e) of the PC Act and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 20,000/- in default to undergo rigorous imprisonment for six months. The trial Court has also ordered confiscation of the properties, keeping in mind the value of the disproportionate assets. The appellant/first accused, aggrieved by the conviction and sentence awarded by the trial Court, has filed this appeal. The respondent/Central Bureau of Investigation (CBI) did not file any appeal challenging the acquittal of accused 2 to 6.

Facts leading to the filing of this appeal, briefly narrated, are as follows. This Court, for the sake of convenience, refers the accused as per their rank in the trial Court.

2.1. The first accused joined the Department of Central Excise and Customs as the Inspector in the year 1951 and promoted as Superintendent in the year 1975 and during January 1985, he was promoted as Assistant Collector and posted at Trichy and he worked in that place till February, 1989.

2.2. The respondent/CBI, in connection with the case in RC. 58/A/88 SPE/CBI/ACB Madras, conducted a search in the residential premises of the first accused at Trichy on 08.02.1989. During the search, two locker keys pertaining to lockers at New Bank of India, Malleswaram Branch, Bangalore were seized and simultaneously, the house of the first accused at Chittadapalli, Hyderabad was also searched in the presence of independent witness, namely PW 9, who was an Officer of State Bank of India, Hyderabad at the relevant point of time and other witnesses, after obtaining search warrant from the Chief Metropolitan Magistrate, Egmore, Chennai. The Search List was marked as Ex. P255.

2.3. PW 14, the Inspector of Police, CBI/ACB, Chennai, on receipt of reliable information that the first accused had acquired various assets during the period January, 1985 to January, 1989, has registered a case as per the instructions of Superintendent of Police, CBI/ACB, Chennai for the commission of offence under Section 5(1) of the PC Act, 1947 and the Printed F.I.R. is marked as Ex. P247. PW 14 in-turn has authorized officials attached to his office to conduct search and seizure of incriminating materials. Accordingly, from the locker of New Bank of India, Malleswaram Branch, Bangalore, which stood in the name of PW 23, namely Asharao, wife of PW 7, deposit receipts in the name of the first accused''s son, namely Madhu Kumar and Tmt. Varalakshmi (not arrayed as accused), mother of the first accused, Indira Vikas Patras, marked as Exs. P128 to P133, LIC Policy, Rado Ladies Watch-M.O. 1., Genert Gents Wrist Watch-M.O. 2, 32 golden bangles - M.O. 3, two small cups of white metal - M.O. 4 were recovered under Mahazar Ex. P68, which was attested by PW s. 3 & 4 and PW 23, in whose name, the said locker stood at the relevant point of time.

2.4. On 18.02.1989, PW 14 searched the locker hired in the name of Sathish Akella, bearing No. 32 of Indian Overseas Bank Thiruvottiyur Branch Branch and seized Indira Vikas Patras - Exs. P238 to P240, a deposit receipt and a pass book in the presence of the third accused and other witnesses under Mahazar - Ex. P258. PW 14, on 22.02.1989, opened the locker bearing No. 183 of New Bank of India, Chikkadapally, Hyderabad, hired in the name of Tmt. Varalakshmi, mother of the first accused and in the locker, he found a cash certificate dated 28.05.1988 for Rs. 29,700/- issued by Syndicate Bank in the name of the second accused/wife of the first accused, 100 shares of Reliance Industries in the name of Madhukumar, son of the first accused, gold jewels weighing 470 grams and gold jewels with white stones necklace and white stone flower for hair totally weighting 50 grams. After taking the inventories, the said items were kept inside the locker by the mother of the first accused and she was allowed to retain the keys of the locker and the inventory was marked as Ex. P216.

2.5. On 24.02.1989, PW 14 opened the locker hired in the name of the second accused and prepared the inventory in the presence of PW 9, Manager of Andhra Bank, Sub-Manager of Andhra Bank and wife of the third accused and in the locker, one pair of gold bangles - M.O. 7, one gold chain - M.O. 6 weighing 140 grams, one gold chain - M.O. 8 weighing 30 grams and two Andhra Bank Kalpatharu Deposit Receipts each for Rs. 25,000/- and cash of Rs. 1,00,000/- - M.O. 5 were found and the inventory was marked as Ex. P248.

2.6. PW 14 continued with the investigation and examined 40 witnesses and seized documents relating to the case from Banks, Central Excise Department, Postal Department and other private agencies and he has also questioned all the accused and accorded sufficient opportunity to them to put forward their stand as to the possession of the said assets and found that the explanations offered by the accused were not satisfactory. PW 14, after his transfer to Bangalore, handed over the case diary to the Superintendent of Police and as per the instructions of PW 15, Deputy Superintendent of Police, PW 15 continued with the investigation and filed final report and placed all the materials before the sanctioning authority, namely PW 1, who was the Under Secretary to the Government of India, Revenue Department at the relevant point of time and the said official accorded sanction to prosecute PW 1 on behalf of the President of India. PW 15, after obtaining sanction, filed charge sheet on the file of the Special Court for trial of CBI cases, Madurai.

2.7. During the course of investigation, PW 7, who has played a major role in the creation of secret assets and investments made as per the instructions of the first accused, filed an application to treat him as an approver and the Chief Metropolitan Magistrate, Chennai has directed PW 12, who was the Chief Metropolitan Magistrate, Chennai to record his statement under Section 164 Cr.P.C. and gave him sufficient warning and that out of his free will and volition, he has prepared to give a statement, recorded his statement and it is marked as Ex. P244.

2.8. PW 13 was the Special Judge for trial of CBI cases and on 24.06.1996, he received a petition filed by PW 7 under Section 5(2) of the Prevention of Corruption Act, 1988 to treat him as an approver and after putting on notice the prosecuting agency, namely CBI, recorded his statement marked as Ex. P242 and after granting him sufficient retraction time, has passed an order granting conditional tender of pardon to PW 7 and it was marked as Ex. P245 and the Tender of Pardon proceedings was marked as Ex. P246. After filing the charge sheet, the Special Court for CBI cases issued summons to all the accused and on their appearance, furnished documents to them under Section 207 Cr.P.C. and thereafter, framed charges under Section 120B I.P.C. and Section 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988. All the accused pleaded not-guilty to the charges framed against them.

2.9. The respondent/CBI in order to sustain their case, examined PW s. 1 to 23 and marked Exs. P1 to P258 and also marked M.Os. 1 to 8.

2.10. All the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances made out against them in the evidence rendered by the prosecution and they denied it as false. The first accused has stated that he has not acquired any disproportionate assets and he accounted all his assets and being an income tax assessee since 1971, he has declared all the assets to the department in the property statement and further stated that the prosecution has purposefully made wrong and false calculations and foisted a false case against him and his work in the department was appreciated and he had been maintaining good record on all aspects and he has also filed a commendation certificate given to him in appreciation of his sincere work and pleaded that he is innocent.

2.11. The trial Court, on appreciation of oral and documentary evidence, has acquitted accused 1 to 6 for the commission of offence under Section 120B I.P.C., but convicted the first accused for the commission of offence under Section 13(2) r/w. 13(1)(e) of the PC Act and sentenced him as stated above and also confiscated his properties which are disproportionate to his known source of income, vide impugned judgment and challenging the legality of the conviction and sentence, the appellant/first accused has filed this appeal.

Mr. R. Kannan, learned counsel appearing for the appellant/first accused contended that the sanction order, marked as Ex. P1, issued by PW 1, would exhibit total non-application of mind to the materials placed before him and further that he has been delegated with power to accord sanction and inspite of the fact that he did not receive list of records, accorded sanction based on the report of the Commissioner of Police and he has fairly admitted that in the sanction order, marked as Ex. P1, he has not specifically stated that he has considered the above said reports. It is the further submission of the learned counsel appearing for the appellant/first accused that admittedly the first accused was a Grade-I Officer at the relevant point of time and hence, sanction should have been accorded by His Excellency, the President of India and the said power cannot be delegated to the Under Secretary, namely PW 1 and the sanction order also indicates that sanction was accorded by the President of India and forwarded to PW 1, whereas the testimony of PW 1 is contrary to the contents of Ex. P1 and however, his testimony would indicate as if he has accorded sanction. Therefore, the learned counsel appearing for the appellant would contend that since Ex. P1-sanction order is vitiated on account of the above said infirmities, the entire prosecution case falls to the ground. The learned counsel, in support of his submissions, placed reliance upon the following judgments:

(i) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, AIR 1979 SC 677 : (1979) CriLJ 633 : (1979) 4 SCC 172 : (1979) SCC(Cri) 926 : (1979) 2 SCR 1007 : (1979) 11 UJ 499

(ii) P.A. Mohandas v. State of Kerala [(2003) 9 SCC 504]

(iii) State of Karnataka through CBI Vs. C. Nagarajaswamy, AIR 2005 SC 4308 : (2005) CriLJ 4534 : (2005) 12 JT 349 : (2005) 8 SCALE 280 : (2005) 8 SCC 370 : (2005) 2 UJ 1502 : (2005) AIRSCW 5240 : (2005) 7 Supreme 121

(iv) Kootha Perumal Vs. State Tr. Inspector of Police, Vigilance and Anti Corruption, AIR 2011 SC 356 : (2011) 1 Crimes 52 : (2011) 1 JCC 32 : (2011) 6 JT 321 : (2011) 1 RCR(Criminal) 278 : (2011) 1 SCC 491 : (2011) 1 SCC(Cri) 418 : (2010) 10 UJ 5484

(v) Ayyasamy and another Vs. State, (1996) CriLJ 119

The learned counsel appearing for the appellant, on merits of the case made the following submissions:

(i) Individual income of the first accused has not been taken into account, but curiously assets of all accused were taken up together which include the accused 5 and 6, who are utter strangers and in terms of Section 3 of Benami Transactions Prohibition Act, it is not open to the prosecution to state that the first accused has acquired assets in the name of other accused.

(ii) Ingredients of Section 5(1)(e) of the PC Act, 1947 or Section 13(1)(e) of the PC Act, 1988 have not been made out at all and attention of this Court was drawn to the judgment in M. Krishna Reddy Vs. State Deupty Superintendent of Police, Hyderabad, AIR 1993 SC 313 : AIR 1992 SC 313 : (1993) CriLJ 308 : (1992) 2 Crimes 1197 : (1992) 4 JT 436 : (1992) 2 SCALE 120 : (1992) 4 SCC 45 : (1992) 2 UJ 613 .

(iii) The evidence of PW 7, who has been treated as approver on his own application, is the only material relied on by the prosecution to sustain their case and admittedly, he is a tainted witness and therefore, his testimony requires corroboration of material particulars and the prosecution has failed to produce any corroborative material to sustain their case. PW 7 though initially was suspended, was taken back in service and continue to serve in the Bank and considering his track record and in the absence of any corroboration of material particulars, the trial Court ought not to have placed reliance upon his testimony and in support of the said submission, placed reliance upon the following judgments:

(i) Sarwan Singh Vs. The State of Punjab, AIR 1957 SC 637 : (1957) CriLJ 1014 : (1957) 1 SCR 953

(ii) Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, AIR 1964 SC 1184 : (1964) CriLJ 344 : (1964) 6 SCR 623

(iii) Piara Singh Vs. The State of Punjab, AIR 1969 SC 961 : (1969) CriLJ 1435 : (1969) 1 SCC 379 : (1969) 3 SCR 236

(iv) Piara Singh Vs. The State of Punjab, AIR 1969 SC 961 : (1969) CriLJ 1435 : (1969) 1 SCC 379 : (1969) 3 SCR 236

(v) Bangaru Laxman Vs. State (through CBI) and Another, (2011) 13 SCALE 212

(iv) Admittedly PW 15, who completed the investigation and filed final report, has stated that arithmetical error had crept in the evaluation and failed to take into account of the fact that in the income tax returns, everything has been reflected and though in the F.I.R., it was indicated that disproportionate asset was worth Rs. 7,00,000/- at the time of filing final report, there was enormous delay in filing the final report which resulted in grave prejudice to the accused.

(v) Explanation was also offered as to Item Nos. 16 to 23 and 28, but unfortunately the trial Court has failed to consider the explanation offered by the appellant in proper perspective. In respect of Item No. 16, purchase price has not been taken into account, but market value was wrongly taken into account and whatever things that were taken from the locker of PW 23, no names were found and therefore, it should be deleted. Item No. 17(a) stood in the name of the third accused, son of the first accused and he was employed at Bangalore and therefore, he has got sufficient income to acquire assets. In respect of Item No. 17(b), (c), (d) and (e), which stood in the name of mother of the first accused, namely Tmt. Varalakshmi, who is not an accused at all and her husband/father of the first accused, being a lawyer, has ample means to purchase assets. Item Nos. 18(c) and (d) stood in the name of the second accused/wife of the first accused and she was carrying on the avocation as a music teacher and therefore, she was in receipt of independent income and one of her son died and Life Insurance Corporation of India has also paid a sum of Rs. 2,50,000/- to her and therefore, it cannot be said that she was not in possession of means to acquire assets. In respect of Item No. 19, five deposits in the name of Madhukumar, Madhav and Maniprasad has been shown and they were fictitious persons and reliance was placed upon the testimony of PW 7 - approver and since he is a tainted witness and that his testimony has not been corroborated with material particulars and other independent witnesses, it cannot be said that as per the instruction of the first accused, deposits have been made in the name of fictitious persons. Similarly, for Item No. 20, same modus operandi, according to the prosecution, has been operated.

(vi) PW 4, Bank Manager, has been treated as an hostile witness and therefore, except the testimony of PW 7, no other witness had corroborated the testimony with material particulars. Insofar as Item No. 22 is concerned, it stood in the name of mother of the first accused, who is not arrayed as an accused and she was not examined during investigation and though the locker was opened and inventory was taken, the articles were once again kept in the locker and the keys were also handed over. Item No. 23 belongs to the third accused, elder son of the accused 1 and 2 and he shown it in the income tax returns and therefore, proper explanation was offered. Item No. 26 found in the locker of PW 23, wife of PW 7, who has actively connived and helped her husband to commit the misdeeds and she has also at the relevant point of time was a bank employee and she cannot open a locker in the very same branch where she was working and therefore, it is for her to offer her explanation and admittedly, no action whatsoever has been taken against her and as per her testimony, though her husband/PW 7 was initially suspended, subsequently he was reinstated and promotion was also given for having actively cooperated with the prosecution to fix the first accused.

(vii) Insofar as Item No. 28 is concerned, it should be deleted and if the contention put forward on behalf of the appellant/first accused is accepted, only Rs. 5,00,000/- and odd amount remains in the hands of the first accused after check period and admittedly, the first accused at the relevant point of time was employed at Trichy and his family was staying at Hyderabad and his wife and sons were earning members and his explanation was based upon statistical data. The first accused, in his statement made under 313 Cr.P.C., offered plausible explanation and the onus is on the accused to discharge the burden and the entire trial is vitiated for the reason that charge sheet was filed nearly after 5 years after completion of the investigation, which was proceeded by filing two writ petitions by the first accused.

Lastly it is contended by the learned counsel appearing for the appellant that now the appellant is aged about 83 years and this Court may take into sympathetic consideration of the said fact and in the light of the tenable grounds made out during the course of arguments, prays for Hon''ble Acquittal.

Per contra, Mr. G.R. Swaminathan, learned Special Public Prosecutor for CBI cases would contend that the points urged by the learned counsel appearing for the appellant on the validity of sanction cannot be sustained at all for the reason that cognizance was taken after the appellant attaining the age of superannuation and therefore, no sanction is necessary and in support of his submission, placed reliance upon the judgment in State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others, AIR 1996 SC 722 : AIR 1995 SC 722 : (1996) CriLJ 1127 : (1995) 9 JT 345 : (1995) 6 SCALE 674 : (1996) 1 SCC 542 : (1995) 5 SCR 812 Supp . On merits of the case, learned Special Public Prosecutor would urge that Wealth Tax Returns were marked as Exs. P246, 255 and 257 and admittedly, the first accused used to attend horse races and lost considerable sums of money and the search witness, PW 3, fully supported the case of the prosecution and though PW 4 was treated as hostile, a portion of his testimony supported the case of the prosecution. PW 6 would admit that one of the lockers stood in the name of Mr. Ashok Raj and he is a fictitious person. Insofar as the evidence of PW 7-approver is concerned, it is the submission of the learned Special Public Prosecutor that no doubt he was an accomplice and his testimony shall be treated with great care and caution and there is no prohibition on his part to give a statement under Section 164 Cr.P.C. and to file an application to treat him as an approver and PW 13 has accorded sanction in a fair and proper manner and accorded tender of pardon to PW 7 strictly in accordance with law and his testimony was amply corroborated through the testimony of PW 9 - Locker In-charge and PW s. 10 and 11 - Post Masters, who had spoken about the inventory papers. PW 23, wife of PW 7, has stated as to the raid conducted by the Income Tax Department and immediately, the first accused alerts PW 7 to remove everything from the locker and the locker was broke open through PW 5 - Locker Mechanic and the first accused has miserably failed to explain as to how various documents stood in his name, found inside the locker opened in the name of fictitious persons as well as in the name of PW 23, wife of PW 7 and the burden lies very heavy on the first accused to explain as to how he has managed the assets which are disproportionate to his known source of income and he has miserably failed to do so. There is absolutely no evidence to show that wife of the first accused was carrying on the avocation of music teacher and admittedly, on behalf of the appellant/accused no oral evidence was let in and no document was marked. It is also fairly conceded by the learned Special Public Prosecutor that the findings recorded by the trial Court for payment of rent by the first accused while in Trichy is unsustainable and prays for confirmation of conviction and sentence awarded by the trial Court and dismissal of the appeal.

In response to the submission made by the learned Special Public Prosecutor, the learned counsel appearing for the appellant reiterated his submission that the mother of the first accused is the wife of an Advocate and having means to acquire assets and admittedly the persons who prepared the Mahazar were not examined and except the tainted testimony of PW 7, which is not at all been corroborated by material particulars, the prosecution miserably failed to adduce any worthwhile or credible evidence to prove the guilt on the part of the appellant/accused. It is further submitted that the prosecution has deliberately caused delay in getting the sanction and therefore, it is not open to them to say that on account of the appellant attaining the age of superannuation, no sanction is required. The learned counsel appearing for the appellant also pleaded that taking into consideration the age of the appellant and age related ailments and mental agony already undergone by the appellant, prays for Hon''ble Acquittal or in the alternative prays for reduction of sentence.

This Court paid its anxious consideration and best attention to the rival submissions and also perused the oral and documentary evidence as well as the original records.

The prosecution treated the period from 01.01.1985 to 08.02.1989 as "Check Period" and calculated disproportionate assets as follows:

The trial Court, on consideration of oral and documentary evidence, has recorded the following findings:

(a) The prosecution primarily relied on the testimony of Thiru. R. Chellamani, who was examined as PW 7 and he filed an application to treat him as an approver under Ex. P244 and PW 13, the learned Special Judge for CBI cases has granted conditional pardon and had also accepted it and Ex. P246 is the Tender of Pardon proceedings. The conditional Tender of Pardon was granted after putting on notice the learned counsel appearing for the accused also.

(b) It was contended before the trial Court that PW 7 is admittedly an accomplice and therefore, his testimony is to be considered with great care and caution and the said testimony shall satisfy twin tests, namely (1) the witnesses is a reliable one and (2) the said testimony must receive sufficient corroboration of material particulars by direct or circumstantial evidence.

(c) There is no prohibition to treat PW 7 as an approver on his own application and his testimony has also satisfied the above said twin tests and his evidence is corroborated by material particulars.

(d) The plea of benami was also raised and the trial Court, placing reliance upon the decision in M.S. Kuppuswami and etc. etc. Vs. The State, (1992) CriLJ 56 , wherein it has been held that Benami Transactions (Prohibition) Act and the Prevention of Corruption Act operate in different fields and therefore, the plea set up by the accused as to the properties purchased in the name of his wife or son cannot be treated as his own assets, cannot be sustained.

The trial Court, on the merits of the case, has taken into consideration Ex. P252 statement in respect of assets standing in the name of the second accused/wife of the appellant/first accused and deleted Item Nos. 18(a), 18(e) and 24(iii) - S.B.A/c No. 3696. As regards the third accused, who is the son of the accused 1 and 2, the trial Court deleted Item Nos. 5, 6 and 12. In respect of fourth accused, who is the son of the accused 1 and 2 and brother of the third accused, the trial Court deleted Item Nos. 4(a) and (b), 12, 18(b) and 23(iv). As regards the fifth accused, who claims to be the friend of accused 3 and 4, the trial Court deleted Item Nos. 2(b) to 2(d) holding that the prosecution failed to prove that the properties were purchased in the name of benami, namely the third accused. Sixth accused is the friend of the first accused and the prosecution, while awarding benefit of doubt, has deleted Item No. 2(a). The mother of the first accused namely Tmt. Varalakshmi, admittedly was not arrayed as an accused and the trial Court, on the basis of evidence, found that Item Nos. 17(b) to (e) and Item No. 22 cannot be excluded from the assets of the first accused. The trial Court also dealt with the deposits in the name of Madhav and Maniprasad, shown as Item Nos. 17(1), 19(a) & (b) and 20(a) & (b) and placed reliance on the testimony of PW 7-approver and has recorded the finding that the appellant/first accused was in the habit of having deposits and creating assets in different names and the deposits in the name of A. Madhav were made by the first accused and therefore, the deposits cannot be excluded from the assets of the first accused. Certain properties were recovered from the Andhra Bank locker hired in the name of the second accused, wife of the first accused and the trial Court recorded the finding that the said locker was opened by PW 14 in the presence of other witnesses and inventory was taken up and marked as Ex. P248 and the third accused was also examined and on appraisal of evidence, found that his Income Tax Return was filed on 24.11.1989 after the search was conducted on 08.02.1989 and the cash flow statement was voluntarily enclosed by him and nobody was examined through the cash flow statement and also not produced any other accounts for the sum of Rs. 1,00,000/- available and held that the said amount cannot be excluded, considering the assets of the first accused. Jewelry and gold ornaments, marked as M.Os. 6 to 8 said to have been belonging to the second accused, wife of the first accused, the trial Court recorded the finding that the said jewels were not in the property statement of the appellant/first accused and cannot be excluded.

Certain properties were recovered from locker No. 32, stood in the name of Satish Akella, shown as Item No. 16 and from locker No. 14, stood in the name of PW 23, wife of PW 7 and the trial Court found that Indira Vikas Patras, marked as Ex. P239 and Ex. P240 series were issued by Head Post Office wherein the first accused was employed at Trichy and those Patras were purchased during the check period and cannot be excluded from the assets of the first accused and further that from the locker operated by PW 23, wife of PW 7, 19 items including deposits receipts in the name of the accused 1 and 2, Indira Vikas Patras, gold jewels were recovered under Mahazar Ex. P68 and taken note of the fact that PW 7 has deposed that the lockers stood in the name of Prakash and Asha Rao, both being fictitious persons and in fact both lockers are operated by the first accused/appellant as well as by PW 7. The trial Court also considered the testimony of PW 23, wherein she has deposed that her husband PW 7 has received late night phone call on 08.02.1989 from the appellant with regard to income tax raid and he instructed PW 7 to broke open the locker and take away the contents and found that M.Os. 1 to 4, 122 and 123, deposit receipts and Indira Vikas Patras, were taken from the locker operated by the first accused and ultimately concluded that the said lockers were operated by the first accused.

The trial Court further recorded a finding that deposit receipts, which stood in the name of the first accused, his wife/second accused and his mother/third accused, were recovered from the locker operated by PW 23, wife of PW 7 and the testimony of PW 7 and his wife PW 23 corroborated with each other and material particulars and recorded a finding that the articles recovered under Ex. P68-Mahazar, except LIC policy, belong to the appellant/first accused and hence, those receipts cannot be deleted. The trial Court has deleted ten bonds of Mahanagar Telephone Nigam Limited for a sum of Rs. 10,000/-, stood in the name of A.S. Kumar, requires deletion and accordingly deleted and after deletion, calculated the total expenditure and assets as follows:

Percentage of disproportionate assets with reference to his income is more than 10%."

The trial Court ultimately concluded that the prosecution has sufficiently and satisfactorily proved that the public servant, namely the appellant was in possession of pecuniary sources of properties disproportionate to his known source of income and has failed to account the disproportionate assets which exceeds more than 10% of his income. However, the trial Court has acquitted all the accused for the commission of offence for the charge of conspiracy and the said finding was not put to challenge by the respondent/CBI. The trial Court, on the question of sanction, concluded that PW 1 has applied its mind to the entire materials placed before this Court and taken note of the judgment rendered by the Hon''ble Supreme Court of India in State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others, AIR 1996 SC 722 : AIR 1995 SC 722 : (1996) CriLJ 1127 : (1995) 9 JT 345 : (1995) 6 SCALE 674 : (1996) 1 SCC 542 : (1995) 5 SCR 812 Supp and held that the plea taken that no valid sanction has been accorded, cannot be accepted. The trial Court, based on the said finding, has convicted and sentenced the appellant/first accused as stated above.

Let this Court deals with the grounds of attack raised by the learned counsel appearing for the appellant:

I. SANCTION

The learned counsel for the appellant placed reliance upon the following judgments:

(i) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, AIR 1979 SC 677 : (1979) CriLJ 633 : (1979) 4 SCC 172 : (1979) SCC(Cri) 926 : (1979) 2 SCR 1007 : (1979) 11 UJ 499

(ii) P.A. Mohandas v. State of Kerala [(2003) 9 SCC 504]

(iii) Kootha Perumal Vs. State Tr. Inspector of Police, Vigilance and Anti Corruption, AIR 2011 SC 356 : (2011) 1 Crimes 52 : (2011) 1 JCC 32 : (2011) 6 JT 321 : (2011) 1 RCR(Criminal) 278 : (2011) 1 SCC 491 : (2011) 1 SCC(Cri) 418 : (2010) 10 UJ 5484

(iv) State of Karnataka through CBI Vs. C. Nagarajaswamy, AIR 2005 SC 4308 : (2005) CriLJ 4534 : (2005) 12 JT 349 : (2005) 8 SCALE 280 : (2005) 8 SCC 370 : (2005) 2 UJ 1502 : (2005) AIRSCW 5240 : (2005) 7 Supreme 121 and the learned Special Public Prosecutor for CBI cases placed reliance upon the judgment in Kalicharan Mahapatra Vs. State of Orissa, (1998) 5 AD 561 : AIR 1998 SC 2595 : (1998) CriLJ 4003 : (1998) 5 JT 269 : (1998) 4 SCALE 359 : (1998) 6 SCC 411 : (1998) 3 SCR 961 : (1999) 2 SLJ 123 : (1998) AIRSCW 2629 : (1998) 6 Supreme 270 .

The decisions relied on by the learned counsel appearing for the appellant, lay down the following proposition:

It is incumbent upon the prosecution to prove that a valid sanction has been granted by the sanctioning authority and it can be done in two ways either (1) by producing the original sanction which constitutes the offence and the grounds of satisfaction and (2) by adducing evidence alinude to show the facts placed before the sanctioning authority and the satisfaction arrived at by it. It is for the Court to see whether or not sanctioning authority at the time of granting sanction was aware of the facts constituting the offence and applied its mind to the materials and the person authorized shall accord sanction. Thus grant of sanction is not an empty formality and it is obligatory on the part of the prosecution to place the entire materials and the sanction must expressly disclose that the sanctioning authority has duly applied its mind and considered the evidence and other materials placed before it.

The legal proposition with regard to sanction has been summarized in C.B.I. Vs. Ashok Kumar Aggarwal, AIR 2014 SC 827 : (2014) 2 CCR 561 : (2014) CriLJ 930 : (2014) 2 RCR(Criminal) 213 : (2013) 14 SCALE 280 and it is relevant to extract para 8 of the said judgment:

"8...

(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

(b) The authority itself has to do complete the conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(e) In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."

It has been further held in the said decision by placing upon the judgment in Ashok Tshering Bhutia Vs. State of Sikkim, AIR 2011 SC 1363 : (2011) CriLJ 1770 : (2011) 2 JCC 1153 : (2011) 2 RCR(Criminal) 99 : (2011) 2 SCALE 735 : (2011) 4 SCC 402 : (2011) 2 SCC(Cri) 258 : (2011) AIRSCW 1505 that the issue whether invalid sanction goes to the root of jurisdiction of the Court which would vitiate the trial and conviction and in the absence of anything to show that any defect or irregularity therein caused a failure of justice, it cannot be considered to be vital.

In the case on hand, admittedly sanction was accorded after the appellant/first accused reached the age of superannuation and though it is the vehement submission of the learned counsel appearing for the appellant that PW 1-Under Secretary cannot take the place of the sanctioning authority and accord sanction, this Court is of the view that the said submission cannot be accepted for the reason that once a person ceases to be a public servant at the time of trial or during the pendency of prosecution, no sanction is required and the judgment in Kalicharan Mahapatra Vs. State of Orissa, (1998) 5 AD 561 : AIR 1998 SC 2595 : (1998) CriLJ 4003 : (1998) 5 JT 269 : (1998) 4 SCALE 359 : (1998) 6 SCC 411 : (1998) 3 SCR 961 : (1999) 2 SLJ 123 : (1998) AIRSCW 2629 : (1998) 6 Supreme 270 has also laid down the said proposition and finds that the contention put forward by the learned Special Public Prosecutor for CBI cases merits acceptance.

II. TENDER OF PARDON GIVEN TO FIFTH ACCUSED/PW 7

PW 7, who was originally arrayed as the fifth accused, expressed his willingness to give statement under Section 164 Cr.P.C. and vide proceedings of the Chief Metropolitan Magistrate dated 29.03.1989, PW 12, then X Metropolitan Magistrate, Egmore, Chennai was directed to record his statement and it was recorded after complying with the legal formalities. Thereafter, PW 7/fifth accused filed a petition, marked as Ex. P244, praying for grant of Tender of Pardon to him with further direction that he may be treated as an approver. PW 13, the Special Judge for trial of CBI cases Madurai, while considering the prayer for Tender of Pardon under Ex. P246, gave him time for retraction and thereafter recorded his statement and passed detailed order dated 25.06.1996 opining that after going through the available materials, particularly the confession statement wherein he has disclosed the real and true facts and further that he has directly or indirectly connected with the commission of offences, has granted Tender of Pardon. It is the submission of the learned counsel appearing for the appellant that it is for the prosecution to move an application treating the fifth accused as an approver and it is not open to the concerned accused to file an application to treat him as an approver and the prosecution has also colluded by expressing no objection. In fact the said fact was urged and the learned Judge has taken note of the judgment in Lt. Commander Pascal Fernandes Vs. The State of Maharashtra and Others, AIR 1968 SC 594 : (1968) CriLJ 550 : (1968) 1 SCR 695 wherein it has been held among other things that the tender of pardon can be granted when the accused move such an application. In the light of the above said legal position, the Tender of Pardon given to the fifth accused/PW 7 by PW 13 cannot be faulted with.

III. NO RELIANCE CAN BE PLACED UPON THE TESTIMONY OF PW 7-APPROVER

It is the primordial submission of the learned counsel appearing for the appellant that PW 7 was originally arrayed as the fifth accused and he is an accomplice and unless his testimony is corroborated with material particulars, either through other evidence or through circumstantial evidence, it cannot be the basis to hold the accused guilty of offence and the trial Court, without taking note of the legal position, has primarily placed reliance upon his testimony and passed conviction and also placed reliance upon certain decisions, which are dealt with by this Court in the following paragraphs.

In Sarwan Singh Vs. The State of Punjab, AIR 1957 SC 637 : (1957) CriLJ 1014 : (1957) 1 SCR 953 , it has been held that though the approver is undoubtedly a competent witness under the Evidence Act, the appreciation of his evidence has to satisfy double test, namely that his testimony must show that he is a reliable witness and further that his evidence must receive sufficient corroboration.

In Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, AIR 1964 SC 1184 : (1964) CriLJ 344 : (1964) 6 SCR 623 , it has been held that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence and that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence.

In Piara Singh Vs. The State of Punjab, AIR 1969 SC 961 : (1969) CriLJ 1435 : (1969) 1 SCC 379 : (1969) 3 SCR 236 , the decision in Sarwan Singh Vs. The State of Punjab, AIR 1957 SC 637 : (1957) CriLJ 1014 : (1957) 1 SCR 953 has been considered and the very same proposition has been held. So also the decision in Rampal Pithwa Rahidas and Others v. State of Maharashtra [ 1994 SCC (Cri) 851]

Ex. P252 is the statement containing properties of the first accused and his family for the check period amounting to a sum of Rs. 29,23,491.71 and Ex. P253 is the Statement of Income of the first accused and his family members during the check period to the tune of Rs. 9,41,743.47. Ex. P254 is the statement containing expenditure incurred by the first accused and his family members which works out to Rs. 3,39,744.42. In the light of the ratio laid down in the above cited decisions as to the appreciation of evidence of the approver, this Court has carefully scanned through the testimony of PW 7. PW 7 has served as an officer in New Bank of India, Malleswaram Branch, Bangalore between October 1986 and February, 1989 and he got acquaintance with the appellant/first accused through his cousin brother Sivakolundhu (not examined as witness). In the chief examination, PW 7 has deposed that his cousin offered a sum of Rs. 1,00,000/- and told him to make deposits in the Malleswaram branch of New India Bank and the said money was given to him by the first accused and he further told him that it should be in the name of one A. Madhukumar and accordingly fixed deposits were made for Rs. 5,00,000/-, marked as Ex. P73 series and fixed deposit receipts were subsequently handed over to the appellant/first accused. He would further depose that locker was opened in the name of his wife/PW 23, who is also a bank employee and it was opened in the presence of the officials and seven fixed deposit receipts stood in the name of Accused 1 and 2 were seized, marked as Exs. P122 to 126 and seizure mahazar was also marked as Ex. P68. PW 7 would further depose that two benami lockers in the branch in which he was working and were taken in the name of Ashokraj and Prakash and those lockers were operated by the first accused and the keys of the lockers were also seized by the respondent and the first accused on 08.02.1989, talked him over phone after the income tax raid and told him to break open the locker and remove the contents and a mechanic was summoned and he broke open the lockers and the articles were removed and it was kept in his wife/PW 23''s locker. It was further deposed by PW 7 that from the locker of Ashokraj, he took M.Os. 1 to 4 and kept in PW 23''s locker. It is very pertinent to point out at this juncture that the testimony of PW 7 was amply corroborated by the testimony of PW 3, who is his wife and not arrayed as an accused and no plausible explanation has been offered by the appellant/first accused as to how the deposit receipts standing in his name and in his wife''s name as well as other valuable articles were found inside the locker operated by PW 23, wife of the PW 7. It is the categorical testimony of PW 7 that some other lockers were also opened in the name of fictitious persons and all the lockers were operated by the first accused.

PW 4 - Manager of the Punjab National Bank, in his chief examination, would depose that he knows PW 7 as well as his wife-PW 23, who was a clerk working in K.G. Road Branch, Bangalore and Locker No. 14 stood in the name of PW 23 and Locker Nos. 4 and 18 stood in the name of Ashokraj and Prakash was opened and Mahazar was prepared and marked as Ex. P272 and inside the locker, deposit receipts, term loan deposit voucher in the name of the third accused and other receipts in the name of Madhukumar were also seized. Though he did not support the case of the prosecution, the fact remains that two locker keys were seized from his residence at the time of search and as already pointed out, it is for the appellant/first accused to explain as to how the deposit receipts standing in the name of his wife and close relatives found inside the locker of PW 23, wife of PW 7, who was originally arrayed as the fifth accused. There were deposits in the name of Madhukumar listed as Item Nos. 17(a), 19(a), 19(b), 20(a) and (b). The trial Court in paras 30 and 31 has recorded a very detailed finding after exhaustively considering the oral and documentary evidence that the appellant/first accused was in the habit of having deposits and created assets in different names and the third accused has availed loan, marked as Ex. P101 series and in the letter, recommendation has been made to make a lien in respect of FDR Nos. 22 to 45/Item Nos. 20(a) and (b). The trial Court has also recorded a finding which indicates that deposits were made in the name of Madhukumar by the first accused and it cannot be deleted. Certain properties were also recovered from locker No. 32 stood in the name of Sathish Akella, which was opened in the presence of the third accused, son of the first accused and Exs. P238 to P240 series - Indira Vikas Patras were seized under Mahazar Ex. P258 and those papers were issued by Trichy head post office at Trichy, which comes within the check period and admittedly, at that relevant point of time, the first accused was employed as the Assistant Collector of Customs at Trichy.

As already pointed out, from the locker operated by PW 23, wife of PW 7, deposit receipts in the name of the appellant/first accused, his wife-second accused and his mother Tmt. Varalakshmi (not arrayed as accused) were recovered and it was seized under Mahazar Ex. P68 and it is the bounden duty of the appellant/first accused to explain as to how those documents, deposit receipts found in the locker maintained by PW 23 and he has miserably failed to do so.

In State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186 : (1981) CriLJ 884 : (1981) 1 SCALE 819 : (1981) 3 SCC 199 : (1981) SCC(Cri) 690 : (1981) 3 SCR 675 , the scope of Sections 5(1)(e) and 5(2) of the Prevention of Corruption Act, 1947 came up for consideration and the Hon''ble Supreme Court of India, in the said judgment, held as follows:

"To substantiate the charge under Section 5(2) read with Section 5(1)(e) the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) the accused is a public servant; (2) the nature and extent of the pecuniary resources or property which were found in his possession; (3) what were his known sources of income, i.e., known to the prosecution; and (4) such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are 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. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the accused public servant is that the accused is not bound to prove his innocence beyond all reasonable doubt. All that he need to do is to bring out a preponderance of probability."

In State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, (2004) CriLJ 598 : (2003) 9 JT 284 : (2003) 9 SCALE 704 : (2004) 1 SCC 691 : (2004) 1 UJ 165 , the scope of Section 13(1)(e) of the Prevention of Corruption Act, 1988 came up for consideration and it is relevant to extract the following paragraphs of the said judgment:

"5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub-section (1) of the section is pressed into service against the accused. The same is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub-section (1) of Section 13 corresponds to clause (e) of sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 (referred to as "the old Act"). But there have been drastic amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the Explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the Explanation that "known sources of income" means income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules, orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (in short "the Evidence Act").

The phrase "known sources of income" in Section 13(1)(e) [old Section 5(1)(e)] has clearly the emphasis on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is elastic and has a wide connotation. Whatever comes in or is received, is income. But, however wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one''s labour, or expertise, or property, or investment, and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "income" is receipt in the hand of its recipient, every receipt would not partake the character of income. Qua the public servant, whatever return he gets from his service, will be the primary item of his income. Other incomes which conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt from the "known sources of income" of a public servant.

The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance.

As per the said decision, burden is cast on the accused not only to offer plausible explanation as to how he came by his large wealth but also to satisfy the Court that his explanation was worthy of acceptance. No doubt, the extent and nature of burden of proof resting upon the accused public servant is that the accused is not bound to prove his innocence beyond all reasonable doubt and all that he need to do is to bring out a preponderance of probability.

In State of Maharashtra Vs. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88 : (1988) CriLJ 183 : (1988) 1 Crimes 237 : (1987) 4 JT 363 : (1987) 2 SCALE 1127 : (1987) 1 SCC 379 Supp : (1987) SCC 379 Supp : (1988) 1 SCR 906 : (1988) 1 UJ 98 , it has been held that once the prosecution establishes the ingredients of the offence of criminal misconduct by proving, by the standard of criminal evidence, that the public servant is, or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant.

The accused in a case of prosecution under Section 13(1)(e) of the PC Act, is having knowledge as to the income through salary or from other sources which he is bound to declare to his employees and the expenditure incurred by him, though he should establish by preponderance of probabilities.

The trial Court, in paras 52 and 53 of the impugned judgment, dealt with the total expenditure and the assets of the appellant/first accused and by adopting liberal approach, has fixed the disproportionate assets of Rs. 13,00,000/-.

In M. Krishna Reddy Vs. State Deupty Superintendent of Police, Hyderabad, AIR 1993 SC 313 : AIR 1992 SC 313 : (1993) CriLJ 308 : (1992) 2 Crimes 1197 : (1992) 4 JT 436 : (1992) 2 SCALE 120 : (1992) 4 SCC 45 : (1992) 2 UJ 613 it has been held that in a prosecution under Section 5(1)(e) of the PC Act, 1947, initial burden of proof is on the prosecution and after that, onus rests on the accused and it is not the mere acquisition of property that constitutes the offence, but its failure to satisfactorily account such possession which makes the possession objectionable and offends the law. Once the ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(c) is complete unless the accused is able to account for such source or property bought. In the case on hand, the prosecution, on a fair and proper investigation and by producing tenable and quality evidence, has discharged its burden. The trial Court, in all fairness, has thoroughly considered the oral and documentary evidence and deleted certain portions of items and ultimately concluded that the appellant/first accused was found in possession of assets disproportionate to known source of income to the tune of Rs. 13,00,000/- which exceeds 10% with reference to his income during the corresponding period.

This Court, after careful scrutiny of oral and documentary evidence and upon consideration of the decisions relied on by the learned counsel appearing for the appellant/first accused, is of the view that there is no error apparent or infirmity or perversity in the reasons recorded by the trial Court to reach the conclusion.

The appellant at present is aged about 83 years and the trial Court, in para 61 of the judgment has recorded the fact that he has suffered mental agony by undergoing the trial for more than 14 years and was in custody for some time and also retired from service. The trial Court has also recorded the fact that the Central Board of Excise and Customs has commended the work done by the appellant against smuggling, tax-evasion, illicit traffic in foreign exchange and Narcotic Drugs and Psychotropic Substances Act and has awarded rigorous imprisonment for two years coupled with sentence of finance and default sentence. This Court, taking into consideration the above facts and circumstances, is inclined to modify the sentence of imprisonment awarded by the trial Court.

In the result, this Criminal Appeal is dismissed, confirming the judgment of conviction and sentence passed by the learned Special Judge for CBI Cases, Madurai dated 24.06.2005 made in C.C. No. 30/1996. The sentence of rigorous imprisonment of two years is modified to one year simple imprisonment and the sentence of fine and default sentence, is maintained. The period of incarceration undergone by the appellant/first accused during investigation/trial, is set-off under Section 428 Cr.P.C. Bail bonds executed, shall stand cancelled. The respondent is directed to take necessary steps to secure the custody of the appellant/accused to undergo the remaining period of sentence of imprisonment.