Wednesday, 19 April 2017

Why the Jayalalithaa case of Disproportionate Assets matters

The late Chief Minister J. Jayalalithaa’s 20-year-old Disproportionate Assets (DA) case is no ordinary one. Its ramifications, legally, in the country are wide-ranging and severe. A case regarding acquisition of disproportionate assets by a public servant, under the Prevention of Corruption Act, stands on a slightly different footing from an ordinary criminal case. In the case of possessing disproportionate assets, the allegation is that a public servant amasses wealth by illegal means and the object of law is not merely to punish the offender but also to see that the offender or his/her legal representatives do not own or enjoy such illegally acquired assets.
The Chief Minister passed away on December 5, 2016. Orders in the DA case had been reserved six months prior to this, after all hearings had concluded on June 7, 2016. On February 14, the Supreme Court upheld the ‘guilty’ verdict of the Bengaluru trial court, sending the other three accused — V.K. Sasikala, J. Ilavarasi and V.N. Sudhakaran — to jail, with a penalty of ₹10 crore each. The first accused, Jayalalithaa, was no more and hence the court held that the charges against her had abated.
On March 21, the State of Karnataka filed a review petition challenging that part of the order which held that the case against Jayalalithaa had abated. Our argument was that when the death of the accused takes place long after the arguments are concluded but before a judgment is pronounced, there will be no question of abatement of appeal.
But the Supreme Court, by dismissing on April 5 the review petition filed by the State of Karnataka, missed an opportunity to settle this issue. Consequentially, what the highest court of the country has done is to set a bad precedent in helping corrupt public servants.
Take the instance of an accused public servant choosing to commit suicide after acquiring huge property by illegal means. Legal representatives or heirs of the accused, according to the Supreme Court, can later enjoy the benefits of the illegally accrued wealth and property left behind, as the case against the accused public servant abates. This is a retrograde step in the march towards eradication of corruption in public life.

The question of abatement

Apart from the question as to whether a criminal appeal filed with leave under Article 136 of the Constitution of India will ever abate on the death of the accused, this particular case raised other equally important questions regarding alleged abatement where death has taken place after conclusion of the arguments and the judgment was reserved.
It is settled law that there is no hiatus (a break or a gap) between the date of conclusion of arguments and the date on which the judgment is ultimately delivered. A judgment is expected to be pronounced immediately after the conclusion of the arguments and pronouncing the judgment on a later date is only for the convenience of the court. Any event occurring between the date the judgment is reserved and the actual date it was delivered on could not have any effect on the judgment which is ultimately pronounced.
Order XXII Rule 6 of the Code of Civil Procedure in unambiguous terms states that there will be no abatement of an appeal if the death is after judgment is reserved. It further clarifies that such judgment pronounced shall have the same force and effect as if the judgment was delivered on the date on which the arguments were concluded.
The Supreme Court itself has constitutionally applied this rule in quite a few civil appeals by holding that there is no abatement of appeal where the death is after the judgment was reserved. The Supreme Court rules also provide that in the case of an election petition, the proceedings will not abate on the death of a candidate if death is after judgment is reserved once arguments are concluded.

There is no principle or authority which can be pressed into service to hold that a different view is possible in the case of a criminal appeal. The Supreme Court, in clear terms, held that the provisions of the Code of Criminal Procedure are not applicable to the appeals filed before the Supreme Court, by applying for Special Leave under Article 136 of the Constitution, though for the purpose of uniformity principles therein can be applied in suitable cases. The Supreme Court rules also do not provide for abatement of any criminal appeal. It can therefore be safely concluded that there is no constitutional or statutory provision providing for abatement of appeal, especially in a case where death has taken place after the judgment is reserved.
The abrupt conclusion of the Supreme Court that the appeal against Jayalalithaa has abated ignores the above said principle of law. It is also relevant to note that the case was never posted for further hearing after the death of the accused.
When judgment was pronounced on February 14, the court stated that the case against Jayalalithaa had abated, without any discussion on the questions involved. This finding was recorded without hearing the parties. Under the circumstances, it would have been appropriate for the Supreme Court to at least afford an opportunity to the parties to address arguments on this question and take a suitable decision. However, the court dismissed the review petition on merits, rejecting the request for oral hearing.
The legal implications arising out of the death of the accused after the judgment is reserved was not debated but the dismissal was recorded based on an erroneous view of law. The principle of sub silentio (action taken without notice, in legal terms) is thus applicable to the facts of the present case.

Reasons for review petition

In a section of the media an erroneous impression has been created that the State of Karnataka, in its greed to collect the fine amount of ₹100 crore imposed on Jayalalithaa by the trial court, has filed the review petition. The DA case was originally filed by the State of Tamil Nadu and Karnataka had to step into the case only after the direction of the Supreme Court, which transferred the case on a finding that the process of justice was being subverted in Tamil Nadu as the main accused held the post of Chief Minister of the State at the time.
The Supreme Court declared that the State of Karnataka is sole prosecuting agency in the case. It is only in obedience of the order of the Supreme Court that Karnataka has performed its role as sole prosecuting agency, so that there was a fair trial of the case. The State of Karnataka has no individual interest in the matter. The fine amount collected as also the confiscated assets could only benefit Tamil Nadu. Karnataka is not a beneficiary.
The right of the State of Karnataka is only for reimbursement of the expenses incurred in connection with the litigation (legal expenses) as ordered by the Supreme Court. Karnataka filed the review petition as it felt that an important question of law has been erroneously decided. It has chosen to do so only to fulfil its constitutional obligations. Now that the review petition has been dismissed, the case has ultimately reached its logical end. Karnataka can have the satisfaction of knowing that it has effectively performed the obligations imposed on it by the Supreme Court.
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B.V. Acharya- served as special public prosecutor and special counsel in the disproportionate assets case involving the late Tamil Nadu Chief Minister Jayalalithaa and AIADMK general secretary V.K. Sasikala

Wednesday, 29 March 2017

Panchayat employee in Kerala wears his campaign against corruption on his sleeve.

"No bribes needed here", says Abdul Saleem

A smiling panchayat clerk who welcomes visitors and even wants their rating at the end of a visit to the local body would seem cinematic, but not in Kerala’s largest grama panchayat in Malappuram district.
Abdul Saleem Palliyalthody is the face visitors look for at the Angadipuram panchayat office when they go for service. At 42, he has been employed at the local body for three years now.
Mr. Saleem makes no secret of his public service enthusiasm. On his table is a prominent notice that declares his opposition to bribery.
The notice in Malayalam reads: “The government pays me Rs. 811 a day (Rs. 24,340 a month) to serve you. If you are not happy with my service, please tell me about it.” He has updated his pay whenever it changed since he put up the notice in 2014.
The ‘anti-corruption’ notice went viral when a curious visitor posted it on social media recently.
“Service is the essence of any government job. People coming to us for different things should not return empty-handed. They should return satisfied,” says Mr. Saleem, whose panchayat has a staff strength of 17.
No one entering the office can miss the central figure. He offers to help even if it is not part of his job, which involves issue of various certificates and documents on buildings. “His approach makes people aware of their rights,” says his superintendent, I.P. Peethambaran.

Polio does not deter

Mr. Saleem says panchayat secretary, K. Sidheek, who is himself a State best secretary awardee for 2011-12, let him be outspoken. Mr. Sidheek says his junior colleague has had a positive impact on the entire staff.

Motivating effect

Panchayat president O. Kesavan welcomes the ‘motivating’ effect. Unlike other local body staff, Mr. Saleem is from the same village and worked elsewhere, including in West Asia, before returning to home base.
He does not let his 40% polio disability affect field visits done on his scooter. The Vigilance Department had recently said local bodies and revenue offices were among the most corrupt government offices.

Source- The Hindu

Saturday, 28 January 2017

True lies of police statistics: Traffic violations dipped

HYDERABAD: Statistics can be deceptive. While Hyderabadis zip past on streets by violating rules, traffic police have churned out figures to state there has been a 50% dip in cases of triple riding, signal jumping and cell phone driving in 2016 compared to last year.

While one might believe statistics are an outcome of better enforcement and awareness, an independent inquiry proves the opposite.

In 2016, especially after August, a combination of factors like heavy rains and demonetisation crippled traffic police.

When rains damaged city roads between August and October, traffic cops were redeployed to help Greater Hyderabad Municipal Corporation officials with road repair. Enforcement of rules took a back seat.

The next big slowdown came in wake of demonetisation. No major drive was taken up against violations between November 8 and December 31, except for a few glaring cases being booked.The drop in three categories was both in terms of those being booking on the spot and through e-surveillance.Between 2015 and 2016, the dip in cases of triple riding was about 56.9%, 68.3% for signal jumping and a massive 71.7% for driving while on the phone.

Speaking to TOI, deputy commissioner of police (traffic) A V Ranganath admitted to a slowdown in enforcement for almost five months last year. Heavy rains from August required better regulation of roads and this was the focus of traffic cops, he said. After demonetisation, "people were busy depositing old notes in banks. There was an acute shortage of lower denomination currency too because of which cops were deployed to ensure transactions happened without unrest. We will now intensify the drive against traffic rule violators," he said.

Pointing out another possibility for the drop in cases in just these three categories, road safety experts alleged traffic police focused more on enforcing the helmet rule in 2016 because of which not many cases were booked for other traffic violations. Admitting to the danger of lack of enforcement, police admitted most accidents occur due to signal jumping, which often turn fatal. Yet they were unable to give statistics for the number of deaths in this category, or for the other two, which they said were equally dangerous. Dr K Prashant, consultant psychologist, Yashoda Hospital, said it was important to send a strong message to erring drivers.

"It is essential from enforcement point of view to send a clear message to motorists that no one can escape if they violate rules," he said, adding that the severity of punishment and penalty should be enough to be a deterrent.

Social activist T S Gupta said police officers at the highest level must take strin gent action against cops who themselves violate traffic rules by speaking on the cell phone while driving or while standing at junctions instead of regulating traffic.


Indian Road Safety Federation chief functionary Vinod Kumar Kanumala said intensifying the drive against signal jumping, triple riding and cell phone driving would not be enough. A continuous education programme in schools and colleges is needed to change the mindset of people, he said.

SOURCE- TIMES OF INDIA

Wednesday, 30 November 2016

Bribes take e-wallet route, keep cops on tenterhooks

KOLKATA: 'Greasing the palms' is now passe. One can rephrase it greasing the mobile, instead. In times of liquidity crunch, bribery has undergone a metamorphosis -it has become `ebribe'. It no more changes hands, but mobile. The cyber crime section of the city police has come across complaints where bribe was demanded on mobile wallets against SIMs issued to fake identities.

Bribery , which is as ancient as human race, takes a new route. Kolkata Police, which has been keeping a track on the inflow and outflow of black money ever since demonetisation was announced, has come across the most ingenious ways to keep the tradition alive.The complaints are against officials of some enforcement agencies like income tax and sales tax, revenue intelligence and customs, who find it hassle-free and less risky to receive bribe on mobile wallets. Some cops, too, are under scanner.


Police have come across a complaint against a sales tax official who demanded bribe on three different mobile wallets. After receiving the money , he went to a department store. Because of his prior understanding with the store manager, he got cash back, with the department store keeping aside 10% margin. But the investigation hits a wall as the mobile is found to have been acquired against a fake name and the SIM was cautiously discontinued after a couple of similar transactions, said an officer. One, who is paying, certainly needs a bank account or credit account to transfer the money from the said account to his or her mobile wallet, but one does not need to have the bank account linked with the mobile wallet to receive the fund. The corrupt officials have found this handy to receive bribe without running the risk of being caught red handed. Money leaves a trail but this kind of transaction does not need to have the bank account linked with the mobile wallet to receive the fund. The corrupt officials have found this handy to receive bribe without running the risk of being caught red handed. Money leaves a trail but this kind of transaction does not after a point.Each and every wallet needs to be linked with bank accounts, only then the trail can be traced, said another officer.

There is belief that the SIM issued against fake identity is used only by terrorists. Now we suspect that many of these SIMs are used by corrupt officials for such transactions. Recently , the detective department tracked more than 80,000 SIMs issued against fake identities. Police checked voters list and found hundreds of fake documents against the names.Even the unique IMEI numbers of phones are frequently changed with easily-available software to erase the electronic footprints of such seedy transactions.

Source- TIMES OF INDIA

Thursday, 17 November 2016

BDA scam: Chargesheet against 2 IA&AS babus

Bangalore Mirror d 18/11/16
The CID wing of Karnataka police is gearing to file a chargesheet in the infamous BDA mutual fund scam against senior Indian Audit and Accounts Service (IAAS) officer and former senior Coffee Board officer Sharada Subramaniam and her husband Sandeep Dash, another IAAS officer who was formerly heading the finance wing of Bangalore Development Authority ( BDA) for their alleged involvement in the scam. The bureaucrat couple will be charged for embezzlement and diversion of government funds from Coffee Board to invest in private mutual funds and afer suffering losses diverting funds from BDA to cover up the deficit amount. The CID has also framed similar charges against eight others involved in the scam with a total of around Rs 2,200 crore involving five former BDA officials and two private bank managers.

According to the chargesheet to be filed in the case, Sharada Subramaniam was the Coffee Board’s director from 1998 to 2003 when her husband Sandeep Dash was heading the finance wing of BDA (1997 - 2005). The couple allegedly invested funds from the Coffee Board through brokers in the mutual fund market and also managed to earn good commission before the market tanked. The investigators have claimed that a sum of Rs 4.04 crore of government money was invested in mutual funds by Subramaniam after taking the money from BDA, and again another Rs 1 crore was routed to the Coffee Board account. The Rs 4.04 crore was given back to BDA, but to fill-up the losses suffered due to a dip in the market, she used the BDA money of Rs 1 crore.

According to the special audit, in two transactions, the husband-wife team allegedly connived to transfer out money from BDA’s accounts to Coffee Board’s accounts and then on to Zurich Mutual Funds. The modus-operandi was: Two current accounts were opened in the name of Coffee Board in Indian Overseas Bank, Kumarapark branch where BDA’s accounts were held in 2001 and 2002. The Coffee Board accounts were opened, operated and closed within two years in the same bank branch, with a clear intent to facilitate the circular transactions. Account number ****1541 was opened in November 2001 and closed in December 2002, while ****5068 was opened in November 2001 and closed in May 2003. In 2002, in two transactions, Rs 4.04 crore and Rs 1 crore were transferred from BDA’s accounts to account nos. 1541 and 5068 in the Kumarapark branch of IOB, allegedly on Dash’s instructions. Subsequently, the money was channelised into private equities; a banker’s cheque was issued by the bank in November 2002 in favour of Zurich Mutual Fund (which later got merged with HDFC). The returns on this investment were credited into the Coffee Board’s director finance account held by Subramaniam. Since these two accounts in IOB were fake, the returns apparently accrued to the couple.

Overall, with just these two illegal transfer of funds, BDA suffered a loss of interest and capital to a tune of Rs 3.6 crore. The CID sleuths who were investigating the BDA scam took up the issue and started the investigation. “We have arrested all connected to the scam other than Subramaniam,” a senior police officer from CID said.

Subramaniam has been booked under Indian Penal Code (IPC) sections 409 and 420, cheating and misappropriation which carry a maximum punishment of 7 years jail and also booked under Section 13 of The Prevention of Corruption Act.

Tuesday, 8 November 2016

Leaked audio clip exposes corruption in water supply board

The New Indian Express Bengaluru d. 7/11/16
A 15-minute audio clip has brought out the stink in the Bangalore Water Supply and Sewerage Board (BWSSB).
A recording of a telephonic conversation between Audit Officer (AO) D Byranna and the Assistant Executive Engineer (AEE) of Bangalore East G D Somashekhar exposes the corruption at various levels in one office resulting in revenue loss running into crores for BWSSB. The conversation was in Kannada.
Remarks made by Byranna reveal that the East-2 Sub-Divisional Office alone caused a loss of `250 crore. This sub-division covers Hoodi, Marathahalli, AECS Layout and surrounding areas.
“A similar situation could prevail across many of its sub-divisions across the city, with varying amounts.

The clip has revealed the malpractices that took place in just one office. What is even more damaging is that AOs who went to investigate it have now been embroiled in the corruption,” said a top official.
The conversation was recorded by the AEE when the AO indirectly sought financial gratification to omit names of staff in the sub-division in an inquiry report by the BWSSB’s audit department into irregularities at the office. Express had highlighted this episode in a report on October 20. 
The full recording made available to Express, already made the rounds in the official WhatsApp group of BWSSB and has now landed at the Anti-Corruption Bureau office too.
In a conversation with the AEE, the AO alleges that buildings were given water connections illegally without collection of pro-rata charges (one-time payment for new water connections) from owners, thereby causing a loss to the board. The officer states that old meters were being unnecessarily replaced with new meters to erase recordings of pending bills. Water Inspectors and Assistant Executive Engineers pocketed an additional `1 lakh per month by indulging in such activities, alleges Byranna.
The reasons behind Somashekhar recording the conversation and releasing it on an official WhatsApp group have also come to the fore now. According to a BWSSB source, “Somashekhar was posted as AEE just a month ago and was being asked by Audit Officers to pay up for the corruption his predecessor indulged in. The unfairness of it all must have enraged him and he decided to go in for an expose to save himself.” The post was previously held by N C Kantha, the source said.
The AOs B G Krishna Kumar and Byranna have been asked to go on leave after the audio was made public. Their inquiry report had declared Somashekhar, Assistant Engineers S B Ramesh and Hanumanthganti, and
Water Inspectors Hareeshwar and Lakshman Naik to be guilty of malpractices. Theyhave all been suspended and further probe is on.

HC acquits I-T officials convicted in lower court

Bangalore Mirror d. 7/11/16
The two were convicted on charges of causing a Rs 10-cr loss to income tax dept


The High Court has overturned the verdict of a lower court and has acquitted two senior income tax (I-T) officials convicted on July 30 for five years on charges of causing a loss to the department to the tune of Rs 10.26 crore.


It was one of the high-profile cases last year as the legal counsel of one of these officials had sought permission to cross- examine President Pranab Mukherjee for sanctioning prosecution of his client, a high-serving I-T official.


The case, when it came before Justice Anand Byrareddy, had some heavyweights (two senior I-T officials, CBI and sons of former chiefs of Karnataka Lokayukta and State Vigilance Commission) engaged in a legal battle.


On Saturday, the High Court finally ruled in favour of Dheerendra Kumar Jha, an additional commissioner and UA Chandramouli, a deputy commissioner with the I-T department, pointing out that the prosecution failed to prove specific charges leveled against the accused and also that there was no valid sanction accorded to prosecute them from the sanctioning authority, the President and former Finance Minister Pranab Mukherjee.


THE CASE


The case pertains to 2008. The CBI had registered a case pertaining to an I-T case that sleuths had taken up in August 2006, wherein a team of I-T officials led by Chandramouli had carried out an inspection at M/s Children’s Education Society (CES) in JP Nagar.


The case had been registered on charges of aiding an income tax assesse of monetary help to evade tax assessment.They were charged of entering into a criminal conspiracy with SN Narasaraju of CES in the matter of income tax. It had been further charged that a key document impounded during the survey carried out had been returned to Narasaraju without retaining copies of said documents on record and ignoring the financial transactions reflected therein while assessing the tax liability.


AT THE TRIAL COURT


Sixteen witnesses had been examined, and 47 exhibits from prosecution and 15 from defence had been marked. The trial court on July 30, 2016, had convicted the DC, additional commissioner, sentencing them for rigorous imprisonment of 6 months and fine of Rs1 lakh for offence under IPC section 120 (b) (criminal conspiracy) r/w IPC section 420 (cheating), 18 months and Rs.1.50 lakh for offence under IPC section 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) of IPC, and again five years imprisonment and Rs 2.50 lakh fine under IPC section 420.


THE ARGUMENTS


The same had been challenged by both in two separate appeals. Designated senior counsel Sheshachala, son of former lokayukta Justice N Venkatachala, put forth defense for the DC. The assessment order for financial year 2004-05 by Chandramouli was under section 144 of the I-T act and that the assessment order was a judicial order, he put forth. Further, the charge – that he returned the impounded document pertaining to assessment year 2004-05 without permission from his superior officer, was contended. He took a defence that under the I-T Act for retaining the document for more than 10 days the assessing officer should take permission and for returning the document, no such permission was required, nor the I-T Act contemplated such a contingency.


Senior counsel CG Sundar defended Jha. He maintained that latter couldn’t have interfered with the judicial order passed by DC. Charge that he did not interfere in the assessment order or in the release of fax sheet, is itself uncanny as IT act clearly mandated that no person shall interfere with the proceedings of the income tax authority by issuing orders, instructions and directions, argued Sundar on behalf of his client. The counsels also argued before the High Court that the trial court could not have convicted the duo in the absence of incriminating evidence against them and that the Income Tax commissioner had admitted before the court as a witness that there was no revenue loss to invoke recovery order section 263 of the Income Tax Act. Advocate Sundar pointed out that even the prosecution had admitted that the entire Rs 10.26 crore had been assessed contrary to the accusation made in the initially.



THE JUDGEMENT


The High Court observed that the trial court had overlooked the basic principles of criminal jurisprudence and convicted accused on conjectures and surmises rather than evidence on record. The High Court rejected the prosecution contention that illegal gratification need not be specific and stated that it shall be quantified to prove the charge since that charge should be specific and not vague. It was observed that the prosecution failed to bring home the charge against the accused persons and observed that there was no sanction under section 197 before setting aside the order of trial court judge in its totality.