The confiscation order be modified, instead of ordering forfeiture of all the property opines Madras High Court.
TITLE: D. Balasankaralingam Vs. State by Inspector of Police, CBI.
Decided On: July 17, 2023.
Crl.A.No.3 of 2009 and Crl.MP.No.660 of 2022.
CORAM: Hon’ble Mr. Justice G.Jayachandran.
Introduction:
Criminal Appeal has been filed under section 374 (2) of Criminal Procedure Code, against the judgment of the learned Additional Special Judge for CBI Cases, Chennai in CC.No.38 of 1999 dated 30.12.2008 convicting the Accused No.1/Appellant herein for the offence under Section 13(2) r/w 13(1)(d) of P.C.Act 1988 and sentencing him to undergo five years R.I and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo imprisonment for a period of one year and convicting Accused No.2/Appellant herein for the offence under Section 109 IPC r/w Section 13(2) r/w Section 13(1)(e) of P.C.Act 1988 and sentencing to undergo a period of 3 years and a fine of Rs.10,000/- in default to undergo imprisonment for a period of three months.
Facts:
The appellants Balasankaralingam and Jayalakshmi are husband and wife. The first appellant Balasankaralingam is a public servant who joined the Customs Department as Preventive Officer in the year 1977. While he was serving as Superintendent (Preventive) of Customs prosecuted for possession of assets disproportionate to the known source of income.His wife Jayalakshmi was prosecuted for abetting him to commit the said offence. The Criminal law was set into motion after the residential premises of the first appellant Balasankaralingam was searched on 19.02.1997. During the search, liquid cash of Rs.8,81,540/- was recovered from his residence. Search of two bank lockers operated in the name of his wife Jayalakshmi/ the second accused/second appellant led to further recovery of Rs.5,25,000/- and Rs.25,00,000/- respectively. The search also led to recovery of cash bills, invoices, share certificates, FD receipts, sale deeds, LIC Policies, UTI Units and other incriminating materials. The investigation had brought to light that Balasankaralingam who joined service on 08.12.1977 was terminated from service on 08.01.1980 pursuant to departmental enquiry. Later, he was reinstated in service as Preventive Officer on 15.12.1987 based on the orders passed by Central Administrative Tribunal. He was promoted as Superintendent with effect from 09.11.1994. He was not in service for substantial period of time and he had no other income other than his salary. While so, the investigation has unravelled, he and his family members were maintaining several bank accounts and lockers. He had invested in movables and immovables for which, the sources are unknown. Most of the properties were acquired after the accused got reinstated in service. Taking the period from 15.12.1987 to 20.02.1997 as check period, the prosecution has collected materials which prima facie satisfied that the accused has acquired assets value of Rs.1,10,50,128.22/- disproportionate to his known source of income. Final report filed with details of assets held at the beginning of the check period and assets acquired during the check period, the assets held at the end of check period. The trial court directed to confiscate the assets worth about Rs.1,05,74,000/- acquired. disproportionate to the known source of income. Aggrieved by the conviction and sentence, the appellants have preferred the criminal appeal under Section 374 of Cr.P.C before this Court.
Legal Analysis and Decision:
The value of the asset acquired by the accused in his name and his family members names is almost double the estimated savings from the known source of income. While so, except some minor error in assessment which has no bearing in the decision, this Court finds the trial court judgment has appreciated the law as well as the fact. For the contention of the learned Senior counsel for the appellants that the change in the law after 2018 though it is captioned as amendment it is only a substitution to the old provision of law under the Prevention of Corruption Act governing disproportionate of asset, this Court finds that even such liberal interpretation is given to the provision of law, it will not be of any use for the appellants herein. The law expects satisfactory explanation for the source of income, in this case, that is missing. The claim and attempt made by the appellants to project the explanations through their witnesses and documents in fact had exposed suppression of their income from other sources. After the search and recovery of huge currency, an attempt make believe story of prior sale agreements and suits for enforcement of the sale agreements been created. The trial Court has rightly held that these documents are ante dated. After close scrutiny one document namely the agreement with JKK Rangammal Charitable Trust where the accused has probalized that they have entered into an agreement and received sale consideration 12 lakhs for other transactions the view of the trial Court is confirmed. Therefore, the Court ever after, due credit for that receipt of Rs.12,00,000/- as income during the check period, find a vast difference between their known source of income and the value of assets which they have invested is very huge and the disproportionality is shocking event if it is estimated moderately. Therefore, this Court confirms the judgment of the trial court. Accordingly, the order of conviction passed in C.C.No.3 of 2009 is confirmed. The Criminal Appeal No.3 of 2009 is dismissed. Taking note of the age of the appellants, this Court grants 30 days time for them to surrender, failing which, the respondent police shall secure them and commit to prison to undergo the remaining period of sentence.
Conclusion:
Taking note of the fact that, out of 12 properties listed for confiscation three have locked in litigation and third party right has come into force due to court intervention and therefore, this Court is of the opinion the confiscation order be modified, instead of ordering forfeiture of all the property. As far as the order of confiscation, the same is modified to the effect that in lieu of forfeiture, the appellants jointly and severally shall pay a sum of Rs.25,00,000/- which shall be around 50% of the value assessed as disproportionate to the known source of income.
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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.