N.M. Nahas vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash all further proceedings pursuant to Annexure-A14 Final Report in FIR No.V.C. 11/17/SCE of VACB, Special Cell, Ernakulam, now pending as C.C. No.6 of 2022 on the files of the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha. The petitioner herein is the sole accused in the above case.

Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused the relevant materials available and the decisions placed by the learned Public Prosecutor.

In this matter, the prosecution allegation is that, the petitioner, who retired as Superintending Engineer, LSGD, South Circle, Thiruvananthapuram, while working as a Government servant during the period from 01.01.2006 to 07.10.2017 had amazed assets worth Rs.5,76,00,687.24, which is 149.22% in excess of his known sources of income and thereby committed offence punishable under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short].

While canvasing interference of the Final Report by way of quashment, it is submitted by the learned counsel for the petitioner that, in this case, by registering Annexure-A8 FIR as on 05.10.2017, as a result of a quick verification done earlier, the petitioner/accused alleged to have committed offences punishable under Section Section 13(1)(e) read with 13(2) of the P.C. Act and the allegation of the prosecution was that the petitioner amazed disproportionate asset to the tune of Rs.2,59,83,805/-, which is 82.80% of his total income. Aggrieved by Annexure-A8 FIR, the petitioner had filed Crl.M.C. No.7141/2017 before this Court and the same was disposed of as per Annexure-A11 order dated 09.01.2018. As per Annexure-A11 order, the grievance of the petitioner herein as regards to non consideration of Income Tax Returns submitted by the family members of the petitioner by the Investigating Officer, before submitting the quick verification report had been addressed and finally a direction was given to the Investigating Officer to consider the Income Tax Returns and the bank statements of the petitioner and his family members before proceeding further in the matter. Pursuant to the said direction, Annexure-A12 summons was issued by the Investigating Officer directing the petitioner to appear before the Office of the Dy.S.P.-1, Special Cell Ernakulam on 23.01.2018. The petitioner appeared before the Investigating Officer and submitted Annexure-A13 representation along with 11 documents. However, without properly considering the documents produced by the petitioner, Annexure-A14 Final Report was filed alleging that the petitioner/accused amazed assets worth Rs.5,76,00,687.24, which is 149.22% in excess of his known sources of income.

According to the learned counsel for the petitioner, when this matter came up for consideration before this Court, as per the order dated 29.10.2024, this Court directed the petitioner to produce Income Tax Returns for the years pertaining to 2007-2008 upto 2018-2019, with direction to consider the same by the Investigating Officer. Even though, additional statement has been filed by the Vigilance, the grievance of the petitioner was not addressed, particularly, in the matter of calculation of the rent obtained by the petitioner and the income of his family members. Pointing out the said anomaly, a reply statement also has been filed by the petitioner.

In gist, the point argued by the learned counsel for the petitioner is that, the income of the petitioner from various sources, particularly, the income he derived from the rent was not properly considered by the Investigating Officer and if so, the finding of the Investigating Officer should be something different from what is alleged in the Final Report.

In response to this argument, the learned Public Prosecutor would submit that, since the grievance of the petitioner, as directed by this Court as per the order dated 29.10.2024 has been addressed as stated in the additional report, there is no reason to interfere with the Final Report, where materials are in abundance to go for trial.

It is pointed out by the learned Public Prosecutor that, in this matter, the income assessed as that of the petitioner is for the period from 2005-2017. According to the learned Public Prosecutor, the choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probabilised would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion, as held by the Apex Court in the decision reported in [1987 KHC 771 : 1987 Supp SCC 379 : 1988 SCC (Cri) 91] State of Maharashtra v. Pollonji Darabshaw Daruwalla.

It is also pointed out that, when non exclusion of certain alleged income of relatives is the allegation, it could not be considered at the pre-trial stage and the same could be considered by the Special Court during the trial alone. In this regard, the learned Public Prosecutor placed decision of the Apex Court reported in [2009 KHC 6147 : 2009 (15) SCC 533 : 2011 (99) AIC 97] State of M.P. v. Virender Kumar Tripathi, wherein in paragraph No.10 it has been observed that, so far as the non - exclusion of certain alleged income of relatives is concerned, it needs to be noted that these are matters of evidence and in such matters, the decision of this Court in State of Orissa v. Debendra Nath Padhi, JT 2004 (10) SC 303 is relevant. The High Court's judgment in this aspect does not suffer from any infirmity.

Another decision of the Apex Court reported in [2022 KHC OnLine 6920 : 2022 KHC 6920 : 2022 (2) KLD 700 : 2022 SCC OnLine SC 1150] State through Deputy Superintendent of Police v. R.Soundirarasu, has been placed by the learned Public Prosecutor with reference to paragraph Nos.78 to 80. In paragraph Nos.78 to 80, the Apex Court held as under:

The High Court has acted completely beyond the settled parameters, as discussed above, which govern the power to discharge the accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in the case of Thommandru Hannah Vijayalakshmi @ T. H. Vijayalakshmi (supra). The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the accused persons, compared with the information complied by the investigation agency and pronounced a verdict saying that the explanation offered by the accused persons deserves to be accepted applying the doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. the Respondent No. 2 herein.

By accepting the entire evidence put forward by the accused persons applying the doctrine of preponderance of probability, the case put up by the prosecution cannot be termed as "groundless". As observed by this Court in C. D. S. Swami (supra) that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case.

S.13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of S.13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money / assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of S.239 of the CrPC. At the stage of S.239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.

Having addressed the rival submissions, at present, the grievance of the petitioner is that, the Income Tax Returns showing the income of the family members of the petitioner, particularly that of the income received by way of rent by the petitioner were not properly considered. But, according to the learned Public Prosecutor the same has been specifically considered as detailed in the additional statement.

Going by the additional statement, the income declared before the Income Tax authorities by the petitioner is tabled in page No.9, as under:

Assessment year

Income from salary

Income    from house property

Income from other source

Agricultural income

Tax paid

2005-2006

167637

19327

12000.00

13827

2007-2008

209250

17500

2008-2009

269672

109550

37740

12000.00

7294

2009-2010

347735

6837

12000.00

9360

2010-2011

405532

20000.00

14012

2011-2012

447373

78900

1220

15000.00

18056

2012-2013

602702

100950

1770

20000.00

54946

2013-2014

1064635

97779

10000.00

142916

2014-2015

1064635

97779

10000.00

142916

2015-2016

987461

127153

134481

2016-2017

1097797

168460

159227

Total

66,64,429

7,80,571

66,894

1,11,000

7,14,535

Grand total

83,37,429.00

Similarly, the income declared before the Income Tax authorities by Smt.Anitha Nahas, wife of the petitioner is extracted hereunder:

Asses sment year

Income from house property

Capital gain

Income from salary

Busines s income

Income from other source

Agricu ltural income

Tax paid

2007-

2008

54394

178986

194309

6000

16198

2008-

2009

47250

35690

30867

40000

6000

Nil

2009-

2010

126960

16618

96781

122150

10000

9354

2010-

2011

49620

290705

115875

20000

26870

2011-

2012

16755

100516

547652

40000

51968

2012-

2013

356

189000

410000

40000

35918

2013-

2014

56111

462028

49000

30000

27515

2014-

2015

158460

283605

12573

2015-

2016

133478

332382

69522

15000

25900

2016-

2017

482912

33658

582039

5564

2017-

2018

626021

22800

20420

1752317

1350067

582129

415927

1274111

167000

232280

Grand Total

55,41,551

The income declared before the Income Tax authorities by Sri.Shalif M.Nahas, son of the petitioner is extracted hereunder:

Assessment year

Refund

Income from house property

Business income

Income from other source

Agricultur al income

Tax paid

2010-11

99061

69340

9907

2011-12

36840

314916

390

8096

2012-13

262430

37450

7646

2013-14

275990

39428

3080

7300

2014-15

Returns not filed for the assessment year

2015-16

255500

544964

186089

141333

2016-17

246400

28600

106876

10604

Total

36840

1355236

749503

365779

Grand Total

25,07,354.00

The income declared before the Income Tax authorities by Smt.Simna Nahas, daughter of the petitioner is extracted hereunder:

Assessmen t year

Refund

Income from house property

Business income

Income from other source

Agricultur al income

Tax paid

2013-14

126000

18000

2014-15

26000

168000

2015-16

175840

25120

Total

26000

4,69,840

Grand Total

46,98,400.00

In the additional statement, it has been specifically submitted that, even after considering the income of the family members of the petitioner and his other source of income as stated therein, no substantial change as regards the finding of amazement of disproportionate assets by the petitioner, as alleged by the prosecution in the Final Report.

Going by the additional statement filed by the Deputy Superintendent of Police, VACB, Special Cell, Ernakulam, which is the summary of assessment of income of the petitioner and his family members, it could be gathered that the grievance raised by the petitioner has been addressed and according to the VACB, even after considering the income of the family members of the petitioner and his other source of income, the same would not make any substantial change in the income and expenditure of the petitioner during the check period. In fact, as rightly pointed out by the learned Public Prosecutor, non-exclusion of the Income Tax Returns filed by the family members of the petitioner and the income he derived from rent, could not be considered by the Court at the pre-trial stage and the same can be considered only during trial.

Similarly, the power available to a court of law to discharge an accused can be exercised based on evaluation of the prosecution materials, with a view to find out whether the prosecution materials prima facie suggest necessity of trial or atleast a strong suspicion warranting trial. Anything more is not within the domain of the Court dealing with plea of discharge and such contentions are matters of evidence, after trial. Similarly, it is the settled law that, non-exclusion of certain alleged income of the relatives of the accused is not a matter to be considered at the pre-trial stage.

In this case, the contention raised by the petitioner was considered by the VACB and for the reasons explained and discussed, the VACB sticks on the allegation that the accused amazed assets worth Rs.5,76,00,687.24, which is 149.22% in excess of his known sources of income. But, the accused/petitioner is disputing the said finding. In fact, non-exclusion of certain alleged income of the relatives of the accused is to be considered by the trial court during trial and pre-trial interference is absolutely unwarranted in this case, since the prosecution materials would prima facie show the allegation, warranting trial. In view of the said finding the quashment sought for herein is liable to fail and accordingly this petition also is liable to fail.

In the result, this petition stands dismissed. Interim order in this matter stands vacated. It is specifically ordered that, the observations made in this order are for the purpose of considering quashment and the same have no binding effect during the trial and the Special Court shall decide the case on merits, after adducing evidence.

Registry is directed to forward a copy of this order to the Special Court, forthwith, for information and compliance.