June,23,2015: Coinciding with Tamil Nadu Chief Minister Jayalalithaa hitting the campaign trail for the R.K. Nagar by-election, the Karnataka government on Tuesday filed a special leave petition (SLP) in the Supreme Court against her acquittal by the State High Court in the disproportionate assets case.
The petition called the acquittal a "gross miscarriage of justice." It described the judgment delivered on May 11 by Justice C.R. Kumaraswamy as “cryptic, lacks reasoning and illogical.” It ridiculed the calculations arrived at by the judge, which resulted in the exoneration of Ms. Jayalalithaa and three others in the corruption case.
The SLP, while detailing the "erroneous" valuation of various items in the judgment, including construction and marriage expenses, said Justice Kumaraswamy calculated the “rates for construction of a sentry shed to fix the value of posh and palatial multi-storied buildings”.
The petition, filed through State counsel and Supreme Court advocate Joseph Aristotle, said the judge did not even bother to record cogent reasons for reversing the “well-considered judgment” delivered by trial court judge John Michael D' Cunha on September 27, 2014.
The government contended that the High Court judgment committed a grave mistake in totalling the 10 items of loans by arriving at a figure of Rs. 24,17,31,274, when on proper totalling, the same ought to be Rs. 10,67,31,274.
This, it said, resulted in the erroneous decision that the disproportionate assets was only to the extent of 8.12 per cent of the income, when actually it works out to 76.7 per cent, the disproportionate assets being Rs. 16,32,36,812 and the income as found being Rs. 21,26,65,654.
"With a pre-conceived notion, the learned HC judge proceeds to consider the case on a few aspects and then concluded that in the present case, the disproportionate assets is only to the extent of 8.12 per cent and, therefore, all the accused are entitled to an order of acquittal," the petition contended.
The judge further erred in holding that the loans from nationalised banks were not taken into consideration by the prosecuting agency, while in fact, the same was taken into consideration. The HC judge “failed in his duties as an appellate judge” and his verdict was vitiated for his erroneous approach and failure to consider material evidence on record, it said.
The SLP noted that the conclusions reached in the judgment bordered on perversity. It strongly hit out at Justice Kumaraswamy's reasoning that lack of reasonable opportunity given to the government to act as a prosecuting agency was only a "curable irregularity."
The petition reinforced the government's position as the “sole prosecuting agency” in the case. It pointed to how the accused persons had never impleaded the government in any of the proceedings, including in the Supreme Court.
The petition also objected to how Justice Kumaraswamy went the extra mile by glossing over the fact that Karnataka was reduced to a non-entity in the appeal proceedings before the High Court.
“The learned judge observes that pendency of the appeals have been widely reported in the media and, therefore, the Karnataka government must have been aware of the proceedings,” it said.
The petition further contended that the appeals were heard without even a valid appointment of a special public prosecutor.
It said the reasoning used in the Agnihotri case did not apply here, as the assets ran up to crores. The precedent in the Agnihotri case was that there would be no offence made out if the disproportionate assets were found to be less than 10 per cent of the income. “In the Agnihotri case, the excess asset found was Rs. 11,350 and the check period was 13 years. The Supreme Court had acquitted the accused in that case since the excess is comparatively small.”
Moreover, at one point, the HC judge erred by ignoring the admissions of the accused themselves as regards consideration paid towards sale of immovable property in determining the cost of construction and business income of Jaya Publications, it said.
The HC judge ignored settled principles of law by also not considering the case of conspiracy and abetment involving the accused persons, it said.
The clinching argument
The value of disproportionate assets was Rs. 2.82 crore and this value was not enough to convict them on charges of corruption, said Justice C.R. Kumaraswamy in his verdict while disagreeing with the verdict of the Special Court, which had computed the value of DA at Rs. 53.6 crore.
How DA came to account for less than 10% of income
Vigilance probe’s findings:
Construction costs: Rs.27,79,88, 945
Marriage expenses: Rs.6,25,04,222
High Court’s findings:
Construction costs: Rs.5,10,54,060
Marriage expenses: Rs.28,68,000
Construction costs: Rs.2,69,34,885
Marriage expenses: Rs.6,16,36,222
Vigilance estimate – Exaggerated value
Total assets – Total income
Rs.37,59,02,466-Rs.34,76,65,654 = Rs.2,82,36,812
Rs.2,82,36,812 x 100/Rs.34,76,65,654= 8.12%
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