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Jayalalitha CRL Appeal PDF
Jayalalitha CRL Appeal PDF
/2014
And:
State, by the Superintendent of Police,
Vigilance and Anti-Corruption
Special Investigation Cell
Chennai 600 006
Complainant/Respondent
1.
2.
3.
India Anna DMK and she was holding the post of Chief Minister of
Tamilnadu during the years 1991 to 1996. The Appellant demitted
office as chief minister of Tamilnadu in May 1996. Subsequently the
Political opponent of the Appellant viz., the DMK party came to
power and a case in Crime No. 13/AC/96/HQ was registered on
18.09.1996 against Appellant herein and 3 others for the alleged
offences under section 13(2) R/W 13(1) (e) of Prevention of
Corruption Act and after investigation charge sheet was filed on
04.06.1997 before the Special Judge, Chennai against them. At this
juncture it is also relevant to note that initially a private complaint was
filed by one
The Appellant submits that the Respondent has alleged that she
has acquired pecuniary resources in her name and in the names of A2, A-3 and A-4 and in the names of various companies floated by her
and to the tune of Rs. 66,65,20,395/-, which are disproportionate to
6.
The Trial of the above case commenced before the Spl. Judge at
and marked 384 exhibits on there behalf. After the trial, the Spl. Court
pronounced the judgement on 27th September 2014 and sentenced A-1
to the periods which have been referred to earlier.
GROUNDS
9.
10.
The learned judge has omitted to take into account the income
The Learned Judge has failed to see that the income pleaded by
the accused have all been accepted by the income tax authorities right
upto the level of Income tax Tribunal.
12.
The learned judge has also failed to see that the findings
rendered by a judicial forum has an effect and force and could not be
brushed aside in a manner as has been done by the learned Spl. Judge.
13.
The learned Judge has failed to see that the Appellant has
proved her defense with overwhelming evidence and the Income tax
Department itself having gone into the question of her income has
accepted it to be true and genuine. Since the burden of proof on the
Accused is only preponderance of probabilities, the lower Court ought
to have held the Appellant not guilty, especially when on the same
parameters, the income tax department has accepted the income of the
Appellant.
15.
The lower Court ought to have held that the findings rendered
The learned Judge has failed to see that the Appellant acquired
only one property and made a renovation and only two constructions
which also have been duly accounted for in the Income tax Returns
and accepted by them. As regards the properties in the name of others,
the prosecution has not proved the benami nature of holding.
17.
The learned Judge has failed to see that no evidence worth the
19.
The learned Judge has failed to see that the entire case, right
from its inception has been engineered by the political opponent of the
Appellant, which on the face of the case of the prosecution itself is
patent and obvious.
22.
The learned judge ought to have held that the income of Jaya
The learned Judge has failed to see that the prosecution has
25.
during the enquiry under sec.202 Cr.p.c have been relied upon when
the final report is filed u/s 173(2) of the code. This procedure is wrong
for the following reasons. Apart from the reasons it involves two
grave violations
[a] The evidence/materials collected during the course of enquiry have
been used in the final report as if it is an investigation done under
chapter 12 of the code. Thus, the learned Judge taking cognizance of
the case, had been informed that 98% of all documents and statement
of 300 witnesses were collected during the enquiry u/s 202 and
therefore they cannot be considered as materials gathered during the
investigation then the Learned Judge could not have taken cognizance
of the case at all.
[b]
The accused has been also misled until the examination, at the
fag end of the trial, when (Pw.240) and (Pw.259) were examined that
they did not form part of the investigation done under the chapter 12
of the code. The learned Judge, though noticed the violations has
submitted in the arguments as not given any finding in this regard or
shown how despite the grave mistake the proceedings are still valid.
26.
The Learned Judge has failed to see that the proceedings in the
27.
The Learned Judge has failed to see that the materials gathered
including bank officers have been examined in this case but without
following safeguards under the code.
i). The witnesses are not shown to have been examined u/s.161 of the
code.
10
11
34.
The learned Judge has not examined the fact that for almost
12
38.
that he registered the FIR has the Government had passed a three page
order requiring him to register the FIR against the A-1. Thus PW 241
not only taken over the discretion of PW 259 he had surrendered the
discretion vested in him and acted at the behest of an outside authority
like the Government.
39.
The learned Judge failed to see that on account of this the FIR
The learned Judge failed to see that the concept of the prejudice
13
42.
The learned Judge failed to see that since 1971, the case of
The learned Judge failed to see that this has two aspects [a]
The learned Judge failed to see that as stated earlier, the FIR
14
46.
15
learned Judge has failed to pose proper question and therefore has not
reached the proper conclusion.
51.
Exb. P.2265 is given only u/s 17 of the Act and therefore PW 259
could not have done any investigation relating to bank records.
Whereas he did so.
[i]
16
authorization given by PW 241 there also invalid has they do not give
reasons. Secondly, it is not even mentioned in the authorization has to
whom the authorization is being given. Further, no authorization u/s
18 of the Act is marked. Thus, there has been no valid authorization at
all in this case.
53.
The learned Judge failed to see that the decision report in State
The learned Judge failed to see that Exb. P. 2309 and Exb.P.
2267 to 2272 are invalid for both the above stated reasons.
55.
remarked that PW 249 has buckled under pressure and disowned his
own statement. The learned Judge could not have pleaded for the
prosecution. It is settled law that where a prosecution witness deposes
then it must be taken and would be used against prosecution unless he
is declared hostile and cross examined to impeach the testimony.
17
56.
cited in this regard has not even chosen to say what though judgments
hold nor the learned Judge has attempted to follow the same.
59.
The learned Judge ought to have held that the charges has
framed is clearly invalid, as they are vague and indefinite. The further
observations in the judgment in paragraph 36.5 that there is no
necessity to specify the individual instances of acquisition of property
or modus operandi adopted by the accused, it is submitted, is a clear
mistatement of law.
18
61.
The
learned
Judge
failed
to
see
that
the
charge
check period. All the six companies are not floated by A2 to A4. In
fact some of them were Directors without even being Shareholders for
a brief period. Hence, plainly charge cannot include those companies.
[e]
existence early to the check period. They also must stand excluded on
a plain reading of the charge. Above factors show the charge has not
given the accused a proper case to meet. What is not plainly covered
in the charges as framed has been sought to be included in this case.
62.
The learned Judge failed to see that the second charge mentions
19
specifying the extent of properties, are its value?. It is text book case
of vagueness in charge vitiating the trial.
63.
and companies who are not accused in the case. This is directly
contradictory to the decision in Anitha Hada vs God Father Travels
2012 5 SCC 661.
[a]
If the court conducting the trial comes to the conclusion that the
company has abetted the accused by acquiring the properties with her
funds and keeping them in their name, then it would amount to its
having committed an offence. According to the above judgment the
company has a reputation of defend. This reputation cannot be
20
The procedure will violate fairness and article 300A which says
that all persons are entitled to right to property and they shall not be
deprived of the same except in accordance with law. The properties of
the company therefore cannot be dealt with and ultimately forfeited
without giving them an opportunity to show cause.
[c]
proved that the company acquired properties with its own funds. It
will amount to causing an impossible burden on the accused to prove
that somebody else acquired the property lawfully.
66.
The learned Judge has not met any one of the arguments
advanced before him. The theory that the owners of the property
would be given opportunity in the attachment proceedings under the
Criminal Law Amendment Ordinance is clearly erroneous.
[i]
21
properties in the name of the companies who have not been made a
party to the proceedings in the prosecution.
68.
The learned Judge ought to have held that the registration of the
FIR and filing of the final report are vitiated by malafides. As stated
earlier, the registration of the FIR was under the direction of the
Government final report is also not the independent opinion of PW
259. How could PW 259 refuse to file the final report when the FIR it
was registered at the instance of the Government and by his superior.
69.
The learned Judge has erred in not giving effect to the Ex.D 370
to 373 they are the orders and final report of previous disproportionate
assets case registered against A-1. These documents show that A-1
had as on 30/01/1991 certain extent of property which taken into
consideration would result in addition of Rs.62,42,338.60 which
would have to be added to the Annexure-1 which is the extent of
property held by A-1 before the check period. The reasons given by
22
The final report has been accepted and the case closed. The
reasoning of the learned Judge whether the final report is what was
closed in the order is not known is unacceptable. Firstly, it is nobodys
case that during the same period there was yet another case for which
a final report came about. Hence, the closure report must refer only to
the final report marked through DW 99. Secondly, this also does not
matter as the period is important this refers only to the period
immediately before the check period in the present case. Thirdly, the
final report is a product of investigation which is accepted in the
judicial order. Fourthly, the decision would operate has issue estoppel.
Therefore, the learned Judge ought to have taken the value of assets
before check period as Rs.2,64,26,295.13 plus Rs. 62,42,338.60
totaling Rs.3,26,68,633.73.
71.
Re Agricultural Income:
The learned Judge ought to have accepted the agricultural
23
The learned Judge failed to see that she had been returning
24
The order notes the price from NABARD was obtained. It is only
after deep consideration, physical inspection ascertaining the grape
vines the Officer accepted the agricultural income returned.
76.
The learned Judge failed to see that the department obtained the
details from the DV & AC or moved by DV & AC had sought to reopen the assessment. The assessments were re-opened and but on reappraisal of the material including those produced by DV and AC, I T
authorities accepted the agricultural income returned by the A-1. It is
submitted that the same is binding on the trial court.
77.
produced the evidence before the trial court to show that the land had
the potential to yield the agricultural income. This reasoning is wrong
[i]
25
78.
land of 14 acres calculates on his own basis only for 10 acres. Why
this is not mentioned thus the reasoning of the learned Judge is clearly
arbitrary.
79.
income has returned by A-1 and which have been accepted upto the
Tribunal level has correct and proper. It may be mentioned that A-1 is
required to lead rebuttal evidence after lapse of more than sixteen
years. It would be impossible to lead evidence and what was
cultivated during the check period. That exercise had been done by the
Income-tax authorities.
80.
The learned Judge has found as a fact that the gifts were all
26
Judge as to why she had not received such gifts in later years is
answered in ground No.73.
82.
The learned Judge failed to see that the drafts in which the gifts
were received from the party men itself was taken from unmarked
documents and marked through defense witnesses examined by
accused.
83.
about the receipt of the gifts by A-1 and how he had examined
seventy five persons who have given the gifts and accepted that the
gifts were genuine. Thus Investigation Officer himself has accepted
27
the gifts has genuine and received. Significantly PW 259 does not say
even a word that the gifts were not legal and not otherwise acceptable
as a resource available to A-1. Thus A-1 was never asked to face a
case of the gifts not being legal.
[ii]
The learned Judge has not even adverted to, which is a grave
mistake that in respect of the gifts at the instance of the then DMK
Government who were inimically disposed towards A-1, the matter of
gifts was referred to CBI for prosecution. The CBI registered an FIR
ultimately filed a charge sheet. The CBI filed the charge sheet only in
respect of 19 draft among numerous drafts received as gift. Thus, CBI
did not find anything unlawful in respect of majority of drafts
received as gift. Further, the case instituted by CBI in respect of only
19 drafts was challenged before the High Court, Madras which was
pleased to quash the entire prosecution. The documents in this regard
has been marked in evidence. It is also a reported judgment which
report had also been submitted to the court. Thus on account of these
factors the gifts ought to have been accepted.
86.
The learned Judge failed to see the above case law had also
been quoted in the written submissions filed. The A-1 submits that the
learned Judge has chosen to over look a significant document filed on
behalf of A-1 has apparently he had considered it to be inconvenient.
Hence, the gift pleaded in the form of Rs. 2,15,00,012/-.
28
87.
amount to Rs.14,10,35,000/-:The learned Judge has disallowed the entire amount towards the
scheme and it is submitted must be termed as on convoluted
reasoning.
[i]
accused the learned Judge has failed to keep in mind the requirement
that it has to be proved only by probabilities as in a Civil Case and not
by proof beyond reasonable doubt.
[ii]
In this regard, the learned Judge has not given any reason why
the decision of the Tribunal under the I T Act is not accepted by the
trial court. The Income-tax Department in scrutiny assessments had
fiercely contested the claim of deposit as the deposit being returnable
deposit could not be taxable as an income. For all the five years,
comprising the check period the Income-tax Appellate Tribunal has
accepted the receipt of deposits. It is submitted the trial court is bound
by the same.
[iii]
The learned Judge also failed to see in the light of the evidence
29
have been examined who have through whom the deposit receipts
were marked and oral evidence given for having made the deposits.
There is no reason at all why these evidences are not accepted. The
only reason given in para 50.23 is they are interested and partisan
witnesses.
[iv]
30
89.
Bank Manager had not stated that the cash deposits were subscription
money of NAMADU MGR. He only has the bank deposit and bank
deposit will show as cash. It is only the Auditor connected with
NAMADU MGR will know the nature of the deposit.
90.
scheme deposit was in existence even earlier to the check period and
deducting the initial deposit earlier to the check period the amount of
Rs. 14.10 crores has been arrived at.
92.
The learned Judge has also committed serious error and failed
31
[i]
The learned Judge is also wrong in noting that these returns and
profit and loss account statements are attested as True Copy by Sri
Vydianathan, Chartered Accountant. It has been marked without
objection. They cannot now be disputed. The decision had also be
cited. It is not even referred. Sri Vydianathan is the partner of M/s.
Venkataraman and Co., who are the Chartered Accountants of the
firm.
[iii]
upheld by the Income-tax Appellate Tribunal for all the five years of
the check period have also been marked in this case. They are based
on the same profit and loss account and return in the above exhibit.
This itself assures their admissibility. Hence, the scheme deposit
resources pleaded on behalf of the accused ought to have been
accepted.
32
93.
Re Agricultural Income of M/s. Jaya Publications:The learned Judge ought to have accepted the agricultural
income for all the five years received by M/s. Jaya Publications for
the leased hold lands ought to be accepted.
94.
accounts have been maintained and how on perusal of the same. The
Income has been determined. After 17 long years, when the accused is
called upon to lead defense evidence she cannot lead evidence as to
the agricultural produce 17 years back. The contemporaneous Income-
33
Re-Sales and Job Work Income of M/s. Jaya Publications:The learned Judge ought to have accepted the total income
34
The profit and loss account statement are not reflected in the
return and lesser figure is shown as Income and therefore, the profit
and loss account exhibited above are unreliable documents. Whole
reasoning shows that the arguments addressed explaining the accounts
were forgotten by the trial court. It also shows lack of accounting
knowledge and perusal of documents filed in this case.
[v]
shown. This document shows that as per Ex.D 219, the total income
from business is shown as Rs.16,89,680/-. However, this document
has not been kept in view. Whereas in paragraph 52 the trial court
says the income returned for the assessment year 1992-93 is
Rs.2,09,885/-. Thus the paragraph 52 of the judgment factually error.
It is unfortunate that the learned Judge has overlooked written
submission. It is more unfortunate that it has costed the accused their
liberty.
35
[vi]
The learned Judge has rejected the income under the above
head on the basis that the profit and loss account statement of M/s
Jaya Publications are unreliable. It has been stated above, how the
profit and loss account are true and duly considered by the Income-tax
authorities and accepted by them upto the Appellate Tribunal level.
[ii]
36
The
return of the money in each year has been shown in the profit and loss
account and on the basis of which the assessment made and accepted
the Income-tax authorities. It is not proper for the trial court assume
that the Income-tax authorities have over looked the section 269SS of
the IT Act and made the assessment order.
100. The learned Judge has filed to see that Section 269SS of the IT
Act applies only to a loan or deposit. This amount is neither a loan or
deposit. This was the amount given to both the persons for purchase
of property and since the transaction did not happened the advance
was returned. For this section 269 SS has no application.
101. The learned Judge has failed to see that when prosecution has
not suggested to DW-88 that this amount is contrary to Section 269
SS of the I T Act the learned Judge on his own accord bringing
Section 269SS of the Act to disallow the amount has being illegal
receipt. If suggestion had been made during the cross examination
37
DW-88 would have had the opportunity to explain it. Hence, the
above receipt of Rs.16,91,000/- is clearly acceptable.
102. The learned Judge has failed to see the receipt of the
agricultural income by M/s. Sasi Enterprises has also been accepted
upto the Commissioner of Income-tax[Appeals]. The reasons given by
the trial court in disallowing the same is unjustified.
[i]
income only on the above fact and therefore, the judgment on this
point is clearly wrong.
[iii]
38
produced Electrician not examined not even his name given. This is in
respect of every other expenditure.
104. The learned Judge has overlooked that the prosecution must
prove the expenditure beyond reasonable doubt. The evidence of
prosecution in this regard far short of the requirement of degree proof.
105. The learned Judge failed to see that A-1 had disclosed her
house hold expenditure in her Income-tax returns for all the years. But
39
the trial court omits to take that into consideration on the basis that
such expenditure is not supported to the documentary evidence. It is
submitted this is perverse. The expenditure has been accepted by the
Income-tax Department under scrutiny assessments. Nobody will
admit an expenditure that is against her interest. If the logic of the trial
court is correct, then her house hold expenditure declared under
Income-tax proceedings must be added to her income. What the trial
court has done amounts to taking double expenditure under the head
House Hold expenditure.
106. Re Marriage expenditure:The learned Judge in paragraph 67.8 has stated that the
evidence PW 181 regarding the cost of construction of PANDHAL is
mere estimation based on the information furnished to him by other
prosecution witnesses. This statement has two aspects.
[i]
that he agrees with the submission of the counsel for A-1 that PW
181 was neither an eye witness to marriage arrangement made at the
avenue or personal knowledge of the expenditure. If so the entire
evidence is liable to be rejected as hearsay.
[ii]
the details from six named persons. None of them are examined by the
prosecution. Two of them namely Thottadharini and another have
40
41
107.
paid by uncle of the bride. PW 196 himself speaks about the same. He
was not treated hostile. He received it by cheque it is reflected in the
Bank statement of DW 1 still in utter perversity. The learned Judge
says this expenditure must be included as incurred by A-1.
108.
by them and for that they had opened an account in State Bank of
India, Gopalapuram Branch, Chennai. This original pass book has
been marked as D-15. The learned Judge casts unwanted aspersion on
this document.
109.
42
ultimately except to the extent which A-1 admitted the expenditure all
other expenditures were deleted. This has also been upheld by the
Income-tax Appellate Tribunal. The learned Judge does not even
referred or considered the document.
110.
A-1 during the check period :The learned Judge has not independently considered the
defence evidence in this regard. Hence, whole judgment is vitiated.
On behalf of A-1, the following substantial evidence has been let in
regarding construction.
[i]
regard. The Assessing Officer was sent to Mumbai and to record the
43
The learned Judge has noted that for all the constructions
allegedly made in this case, the prosecution wants to add huge amount
but the learned Judge in paragraph 78.35 has stated
However, as the prosecution has not produced convincing evidence
in support of the value fixed by the PWD Engineers in respect of the
value of the special items and there being some dispute regarding the
payments of the architects fees, in order to meet the ends of Justice, it
44
45
kilo grms. The observations of the learned Judge that she was in
possession only 7040 grams of gold jewellery is based on no material
but overlooking the materials on record. Therefore, no amount is
liable to be added towards the expenditure relating to the Gold.
[ii]
which also there is assessment order and return has not been seen or
taken into consideration. Thus the conclusion in the judgment that A-1
has acquired the gold and diamond jewellery worth of Rs.
2,51,59,144/- is based on no evidence and the learned Judge had made
out a third case. This itself vitiates the order.
[iv]
46
113. Re Silver:The learned Judge failed to see that in the assessment before
the check period in Ex.P 2318, it is seen that she had 116 kg silver
valued at Rs. 48,80,000/-. The total quantity allegedly recovered is
1200 kgs. Hence, there can be no addition under the head of Silver.
114.
exhibited in this case. Nor they are in possession of the court. Yet the
learned Judge has added Rs. 20,80,000/- under the head Silver
which is totally unjustified and wrong.
115.
fundamental error. The learned Judge has lumped up together all the
properties standing in the name of A-1, other accused and Companies
which companies are not parties to this case. This is fundamentally
wrong because the nature of evidence required to show the properties
47
standing in the name of A-2 to A-4 and the properties standing in the
name of the Companies on one hand and the properties standing in the
name of A-1 and the expenditure made by her in the construction on
the other hand are entirely different. This distinction has not been kept
in view by the trial court.
117.
for proof of benami character but has not given any finding nor
applied the law to the facts of this case. This significant and grave
error has vitiated the entire judgment.
119.
A-3 and A-4 were Directors of the Companies at some point of time.
48
have filed the Income-tax returns and the Income and Expenditure and
Balance Sheets have been marked.
had signed certain letters requesting loan from Indian Bank, the
property purchased by the company in its own name could become the
property of A-3 or A-1.
125.
49
126.
all to prove conspiracy between the accused. A-2, A-3 and A-4 are all
having independent income and also borrowed from Banks and Public
Institutions.
128.
50
130.
The learned Judge has failed to see that the very framing
of charge itself is defective and the learned judge has failed to remedy
it despite the order of High Court.
131.
4.30
hurry and crave leave of this Honble court to raise some additional
grounds later.
132.
payment of the huge amount of Rs. 100 crores, there may not be a
power to pass such orders for payment of fine. This is more so, when
most of the fixed deposits and cash balances are in the names of other
accused than A-1. Whereas the liability to pay the fine is cast only on
A-1.
51
134. The learned Judge further failed to see with the direction that if
the above adjustment falls short of the fine amount then gold
jewellery shall be sold except 7040 gms. There is nothing in the
judgment to identify the 7040 gms as most of the jewellery are
studded with diamonds or artificial stones. The value of such
diamonds are artificial stones are not calculated.
135. The learned Judge has further no power to direct that 5 crores
out of the fine amount shall go to the Government of Karnataka
towards the cost of trial conducted in the State of Karnataka. This is
also wrong and without authority of law. The cost of prosecuting the
person can never be recovered from the accused. Further, Honble
Supreme Court of India in the order of transfer has already provided
what should be paid by the State of Tamil Nadu. The order flies in the
face of the order passed by the Honble Supreme Court of India.
136.
plead and urge any other grounds available to him during the course
of hearing.
52
PRAYER
Wherefore, it is prayed that this Honble Court be pleased to set
aside the judgment and order of Conviction and sentence both dated
27.09.2014 and passed in Spl C.C. No. 204/2004 by the learned Spl.
Judge, XXXVI Addl. City Civil and Session Judge, Bangalore, for the
offences punishable under Section 13(1) (e) read with 13(2) of the
Prevention of Corruption Act, 1988 and Sec 109 read with 120(B) of
I.P.C., by allowing this Appeal, in the interest of justice and equity.
Bangalore,
29.09.2014
53