New Delhi, February 14 (The Hindu): The Supreme Court on Tuesday set aside AIADMK General Secretary V.K. Sasikala’s acquittal by the Karnataka High Court in the Jayalalithaa disproportionate assets case and “restored in full” the trial court conviction of September 2014.
Sasikala is thus in for a four-year prison term and a six year bar on contesting elections thereafter.
A Bench of Justices P.C. Ghose and Amitava Roy also set aside the acquittal of her two co-accused J. Ilavarasi and V.N. Sudhakaran and restored their conviction in the case. The SC said the appeals filed by Karnataka government and others, including DMK leader K. Anbazhagan, against the former Chief Minister has abated after her death on December 5, 2016.
Clearing the decks for Mr. Panneerselvam to continue as the Chief Minister and unify the party under his leadership, the Supreme Court ordered Sasikala, Ilavarasi and Sudhakaran to surrender forthwith before the trial court concerned.
Even after Sasikala comes out after serving her four-year sentence, she would be disqualified to contest elections for the next six years as per the Supreme Court judgment in Lily Thomas versus Union of India of July 2013. The voluminous main judgment authored by Justice Ghose held that the trial court conviction of the three accused – A2 to A4 – on September 27, 2014 has been restored in full along with the consequent directions, including payment of fine and attachment of properties.
The trial court had sentenced Sasikala, Ilavarasi and Sudhakaran under Section 109 IPC read with Section 13 (2) of the Prevention of Corruption Act — abetment of criminal misconduct of a public servant — to simple imprisonment for a period of four years each and pay a fine of Rs. 10 crore each. In case of default, they would have to further suffer imprisonment for another year.
For the offence of criminal conspiracy leading to criminal misconduct of a public servant (Section 120 (B) IPC read with Section 13 (2)) of the Prevention of Corruption Act, all three were sentenced to simple imprisonment for six months and a fine of Rs. 10,000 each.
Special Judge John Michael Cunha had ordered the attachment properties held by Indo-Doha Chemicals and Pharmaceuticals Pvt Ltd., Signora Enterprises Pvt. Ltd., Ramraj Agro Mills Ltd., Meadow Agro Farms, Riverway Agro Products.
The prosecution had alleged that these companies were operating “for and on behalf of Ms. Jayalalithaa.”
The prosecution had submitted that, in essence, these companies were used as receptacles of ill-gotten cash for which no explanation was given during investigation nor during the trial. In his separate but concurring judgment, Justice Roy said in the open court that he had expressed the court’s “deep concern about escalating corruption in the society.”
The judgment has come seven months since the Supreme Court reserved the appeal for judgment on June 7, 2016 after 20 days of hearing arguments. The hearing had started on February 23 last year.
The Bench had issued notice in July 2015 on the appeals. In its arguments, the State government had argued that the bare fact that it was neither considered nor ignored as the “sole prosecuting agency” in the corruption case would by itself vitiate the High Court judgment.
The State wanted the Supreme Court to address on what would be the effect of not repairing this omission throughout the appeal hearings in the High Court till they were disposed off.
The State’s document filed by advocate Joseph Aristotle and settled by senior advocate B.V. Acharya, had contended that its appeals were not vitiated as the duly appointed Public Prosecutor was “never given the opportunity” of an oral hearing. His role was reduced to just handing over written submission, that too on the orders of the Supreme Court, at the fag end of the appeals in the High Court.
The State government pointed out that the acquittal can be set aside by just correcting the “totalling mistake” to show that the disproportionate assets of the accused comes to Rs. 16.32 crore, that is 76.7% of the income as against the 8.12% arrived at by the High Court.
“Consequently, the judgment of acquittal is liable to be converted into one of conviction even as per the purported principle in Krishnanand Agnihotri’s case,” the State government contended.
The 1977 case law, quoted by the High Court, had held that an offence was not made out if disproportionate assets was found to be less than 10% of the income. It said the logic does not apply in this case in which the disproportionate assets run to crores.
The defense counsel had argued that Karnataka had no authority to “interfere in the internal affairs of Tamil Nadu” and a violation of the federal scheme enshrined in the Constitution. They had invoked Article 162 of the Constitution, which prescribed that the executive power of the State Executive is co-extensive with that of the State Legislature. The defense had argued that only Tamil Nadu had the “exclusive jurisdiction” to file the special leave petition or appeal against the Karnataka High Court judgment of acquittal on May 11, 2015 as Ms. Jayalalithaa was a “public servant of the State of Tamil Nadu.”
The defense had asked whether Karnataka was entitled to maintain the petition against the High Court’s judgment setting aside the confiscation of assets of five companies which the prosecution alleged were owned by the accused persons. That too when there was no charge levelled under the Benami Prohibition Act.
The main issues in the case and how the Karnataka High Court set aside trial’s court’s order forcing Karnataka government to appeal to the Supreme Court
- Valuation of buildings spread across 1,66,839.68 sq. feet:
After PWD valuation and 20% deduction, Trial Court fixes total cost at Rs. 22,53,92,344.
High Court re-evaluates the cost of construction of the buildings and arrives at total cost of Rs. 5,10,54,060.
Compares cost of construction of “posh and palatial multi-storied buildings” to construction of a PWD “shanty shed”.
The total cost of Rs. 5.10 crore arrived at by the HC is even less than what the accused persons themselves admitted is the cost, Rs. 8,60,59,261.
2. Marriage expenditure of co-accused and “foster son” V.N. Sudhakaran:
Prosecution calculated expenses at Rs. 6,45,04,222
Trial Court arrives at sum of Rs. 3,00,00,000
High Court reduces to “paltry sum” of Rs. 28.68 lakh solely on the basis of Ms. Jayalalithaa’s IT statement.
3. Loans as income:
Karnataka government says the ‘most serious and glaring infirmity’ in the judgment delivered by Justice C.R. Kumaraswamy is in the matter of considering loans as income.
Directorate of Vigilance and Anti-Corruption (DVAC) found the value of loans borrowed by the accused is Rs. 5,99,85,274.
High Court judgment holds DVAC ignored 10 items of loans borrowed from nationalized banks valued at Rs. 24,17,31,274. This despite the accused having never raised any such point either in their appeals or their voluminous written submissions before the High Court.
Karnataka government exposes “mathematical error” in the High Court judgment. Says totaling of all 10 loans comes to only Rs. 10.67 crore and not Rs. 24.17 crore.
4. DA is 76.7 pc of income and not 8.12 pc:
Karnataka government’s calculations in the petition is Rs. 37,59,02,466 (total assets) subtracted by Rs. 21,26,65,654 (total income) is equal to Rs. 16,32,36,812.
How Karnataka government calculates the percentage of disproportionate assets: The value of 16,32,36,812 (disproportionate assets) multiplied by 100, the value of which is divided by Rs.21,26,65,654 (total income) is equal to 76.7 percent.
5. Income from grape garden:
Prosecution computes total agricultural income from grape garden at Hyderabad as Rs. 5,78,340.
Ms. Jayalalithaa computes income from the property as Rs. 52,50,000
Trial Court computes the income as Rs. 10,00,000
High Court judgment computes the income as Rs. 46,71,600
6. Gifts as income:
High Court judgment treats gifts worth Rs. 1.5 crore received by Ms. Jayalalithaa on her 44th birthday as her “lawful income”.
Karnataka petition argues that a CBI case on this issue is pending before the Supreme Court and the accused failed to bring this fact to the High Court judge’s notice.
Further, the petition contends that any gift received as a lawful source of income should be intimated to the authorities as per law Prevention of Corruption Act.
7. Income of SASI Enterprises:
Trial Court rejected plea by accused that SASI Enterprises (a partnership firm between Ms. Jayalalithaa and second accused N. Sasikala Natarjan) had a rental income of Rs. 12,60,800 and only Rs. 6,15,900 was taken into consideration by the prosecution.
High Court judgment arrives at an “abstract figure” of Rs. 25,00,000 on “guess work”, Karnataka petition contends.
8. Income of Jaya Publications and “theory of Namadhu MGR”:
When accused said total business income from Jaya Publications is Rs. 1.15 crore, the High Court judgment raises it inexplicably to Rs. 4 crore by “erroneously treating the total amount of turnover as net profit”.
HC judgment further rejects Trial Court conclusion that the evidence regarding Namadhu MGR scheme is “false” and “fabricated”.
9. Income of Super Duper TV Pvt Ltd:
Accused number 3 and company proprietor, V.N. Sudhakaran, claimed the company made a “legitimate income” of Rs. 1.10 crore during the check period.
Trial Court rejects the claim.
High Court judgment sets aside the trial court finding, “unilaterally assesses” income as Rs. 1,00,00,000.
10. Assets:
Trial Court records 146 sales of immovable properties, making net worth from real estate sales to nearly Rs. 20 crore.
High Court judgment, for no reason, ignores 49 of the 146 sales and reduces total value of sale proceeds to Rs. 6,24,09,120.
