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TMI Blog2018 (6) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable with the accused. It was merely assumed that the accused/appellant had not any savings despite of submitting the material and documents and also from his spouse, son Rakesh and Avinash. Adjudicating Authority ought to have complied with all the principles of duly conducting a judicial proceeding where rights of the parties are to be based on the cogent findings based on the evidence led in the case, as every proceedings under the PMLA 2002 is a judicial proceeding within the meaning of section 50 of PMLA Act 2002. No appeal has been filed against the acquittal order and quashing of charge sheet ( as informed by the parties). The complaint was decided on merit. The respondent was aware about the said trial. No steps were taken to have the consolidated-trial under schedule offence and prosecution complaint. The prosecution has examined large number of witnesses and documents were marked. The statement of the accused u/s 313 of Cr.P.C. was also recorded. The case of the accused is of total denial. Once the acquittal order is passed against the appellant holding that he was not involved in the Prevention of Corruption Act and he has purchased/ acquired the properties in legal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 17/2015 dated 28.07.2015 filed by the Karnataka Lokayukta, Gulbarga under Section 13 (1)(e)& 13(2) of the Prevention of Corruption Act, 1988 in the Hon'ble Special District and Sessions Court, Gulbarga against Shri Shankar Kollur, Retd. Revenue Officer, City Corporation, Gulbarga for possessing disproportionate assets to the extent of ₹ 42,25,859/- which was in excess of 55.53% of the said Officer's known sources of income. (ii) As offences under Sections 13 (1)(e)& 13(2) of the Prevention of Corruption Act, 1988 are Schedule Offences under Section 2(1)(y) of PMLA, 2002 and prima facie a case of Money Laundering appeared to have been made out, an Enforcement Case Information Report (ECIR) No. 12/BGZO/2009 dated 26-10-2009 was registered by the Directorate of Enforcement for necessary investigation under theprovisions of PMLA, 2002, (iii) During the course of investigation, Summoned Shri Shankar Kollur, Smt. Parvati Kollur W/o Shri Shankar Kollur, Shri AvinashKollur S/o Shri Shankar Kollur, Shri Rakesh Kollur S/o Shri Shankar Kollur, Smt. Chandrakala W/o Shri AvinashKollur and Smt. Apeksha W/o Shri Rakesh Kollur, recorded their statements under Section 50(2) & (3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cases. d) The learned Authority drawn the conclusions about sources of income and brought forward savings hurriedly without corroboration of substantial documents and materials filed by me. ii. a) Purchase of plot measuring 50x70 at Sy No. 76 M.B. Nagar, Gubbi Colony, Gulbarga is allotted by City Corporation Gulbarga on 24.05.1980 on payment of initial amount of ₹ 11840/-. Further, I have paid balance amount of ₹ 45,177/- during April, 1997 to City Corporation Gulbarga. Sources were, for payment of ₹ 11,840/- (1980) and ₹ 45,177/- (1997) salary income of the year ₹ 6363/- and also brought forward savinhs out of salary income of ₹ 17,038/-. I have joined the City Corporation during the year 1976 and my details of salary drawn 1976 to1980 are as under:- Year Salary Drawn Savings 1975-76 222.00 4,622.00 Rs.5000 was on hand at the time of joining the City Corporation 1976-77 1,375-00 5,347.00 1977-78 3,261-00 8,308-00 1978-79 4,673-00 12,481-00 1979-80 5,182-00 17,038-00 To substantiate above fact, I am herewith enclosing receipt and payment summary (cash flow) for the period 1975-76 to 2009-10 based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Parvati Kollur, at Sundar Nagar, Gulbarga, which is situated in the centre of the city. 4) On 22.08.1982, Smt. Iravva mother of my spouse gifted house to my spouse Smt. Parvati Kollur, at Ashok Nagar Gulbarga, which is situated in the centre of the city. 5) My spouse has leased out these two houses and shop at G.K. Complex on monthly rental during the period 1976-77 to 2008- 09 and earned rental income as under:- Year Rent (Rs.) 1976-1991 50,000 1991-92 20,000 1992-93 20,000 1993-94 28,000 1994-95 28,000 1995-96 28,000 1996-97 33,000 1997-98 34,000 1998-99 42,000 1999-00 62,000 2000-01 1,04,000 2001-02 1,07,000 2002-03 1,05,000 2003-04 1,05,000 2004-05 1,05,000 2005-06 1,05,000 2006-07 1,05,000 2007-08 1,05,000 2008-09 1,50,000 2009 to 22.09.2009 75,000 Total 14,11,500 6) My spouse has carried on the business of tailoring at the house and the details of income as under:- Year Rent (Rs.) 1991-92 2,150.00 1992-93 6,150.00 1993-94 5,550.00 1994-95 7,850.00 1995-96 10,450.00 1996-97 8,450.00 1997-98 16,150.00 1998-99 20,550.00 1999-00 24,980.00 2000-01 10,820.00 2001-02 13,630 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Impugned Order. It appears that the OC No. 577/2016 was confirmed merely on the basis of the allegations made in the FIR no. 20/2009 registered by Karnataka Lokayukta and also the charge sheet no. 17/2015 dated 28.07.2015 filed by the Karnataka Lokayukta under section 13(1) (e )& 13(2) of Prevention of Corruption Act, 1988. 7. By order passed on 27.04.2017 the Special Judge (Lokayukta) and Principal Sessions Judge, Kalaburagi has struck down and set-aside charge sheet no.18 of 2015 filed by 'The Karnataka State, Lokayukta Police Station, Kalaburagi'. "Accused - Shankar S/o BhimshyaKollur is found not guilty of the offence under section 13(1) (e ) R/W section 13(2) of the Prevention of Corruption Act, 1988. Accordingly, exercising the power under section 235(1) of Cr.P.C. accused is acquitted for the offence under section 13(1) (e ) R/W section 13(2) of the Prevention of Corruption Act, 1988." 8. The relevant extracts of the Order dated 27.04.2017 are mentioned in paras 59, 61,62, 63 64 and 65 which are reproduced hereunder:- "59. On perusal of the evidence of PW.8 makes it very clear that on the basis of the National Consumer Index Report and also General Family Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." "63. In the instant case, every single amount received by the accused has been proved on record though the testimony of witnesses and it is also supported by contemporaneous documents and intimations to the Government. It is not the case of the prosecution that the receipts so projected were bogus or were part of a calculated device. The fact that these amounts were actually received from the sources so named were satisfactorily proved by the accused. Furthermore, these amounts and assets are well reflected in the assets and liability statements filed by the accused." "64. Insofar as other assets and income as disclosed by the prosecution are not seriously disputed by the accused. After analysing each and every items as stated supra, upon considering the oral and documentary evidence placed on record, the probative value of each items, it appears that preponderance of probability of the income and expenditure as discussed supra are to be added and deducted respectively. Upon considering all the relevant facts and circumstances of the case, this Court determined the actual income and assets held by the accused and his family members along with expenditure incurred by him whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,099/- (-) ₹ 8,51,317/- Rs.37,48,782/- ANNEXURE-C Known sources of income of the accused as per the prosecution as shown in the charge sheet Rs.76,09,437/- The items of income ordered to be deleted a) Salary difference amount Rs.2,98,296/- GRAND TOTAL Rs.79,07,733/- ANNEXURE-D a) Total assets held by the accused as determined by the Court Rs.26,79,080/- b) Total expenditure incurred as determined by the Court Rs.37,48,782/- TOTAL Rs.64,27,862/- c) Known sources of income of the accused as determined by the accused Rs.79,07,733/- d) Surplus known sources of income Rs.14,79,871/- "65. On perusal of the entire evidence adduced by the prosecution as discussed by the supra, the prosecution has failed to produce cogent corroborative and satisfactory evidence to prove the charges levelled against the accused. The evidence produced by the prosecution is insufficient to hold that the accused has committed the offence punishable under Section 13 (1) (e ) R/W Section 13 (2) of the Prevention of Corruption Act. Accordingly, I answer the above point No.2 in the negative. In the result, I proceed to pass the following final order: ORDER Accused - Shankar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. It is also submitted that the applicant has already been acquitted in the offence on the basis of allegation made. On the basis of same allegation prosecution complaint under section 45 of the Act is pending and once the appellant has been acquitted in the schedule offence, the prosecution complaint would not lie as any accused cannot be tried twice for the same offence. It is submitted that after recording the evidence of the prosecution witnesses for the offence, the appellant/alleged accused was acquitted by the Special Court. No appeal has been filed as informed by the parties. When the judgement was passed in favour of the appellant in 2017 by the Court, the prosecution complaint under Section 45 of PMLA for the same allegations was already filed in 2016. In the prosecution complaint, there is neither fresh allegations nor additional evidence under the PMLA. 15. As far as the above arguments addressed on the aspect of Double Jeopardy are concerned, the prosecution complaint under section 45 of the Act is already pending before the Special Court. All these arguments can be taken by the appellant, if so required before the appropriate court. 16. However, I am of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int were already available with the respondent. 22. No appeal has been filed against the acquittal order and quashing of charge sheet ( as informed by the parties). The complaint was decided on merit. The respondent was aware about the said trial. No steps were taken to have the consolidated-trial under schedule offence and prosecution complaint. 23. In the Judgement, it was recorded that the prosecution has examined large number of witnesses and documents were marked. The statement of the accused u/s 313 of Cr.P.C. was also recorded. The case of the accused is of total denial. 24. The respondent is now pressing for another/second trial under PMLA for the same offence/allegations against the appellant. It is not alleged by the respondent that the investigation carried out by the respondent under PMLA disclosed additional materials which may require independent trial, rather it is found that the investigation and allegation remain the same as conducted by the Police under the schedule offence. 25. I am of the considered view that once the main appellant has been acquitted by the Special Court under the Schedule Offence after the trial and no appeal has been filed by the State ag ..... 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