news Monday, May 11, 2015 - 05:30
The total value of J Jayalalithaa’s assets disproportionate to her known sources of income was “within permissible limit” and therefore, she was "entitled to acquittal", Justice C R Kumaraswamy of the Karnataka High Court said while setting aside her conviction. In the 919-page judgment, over 800 pages recalls the judgment, delivered by judge Michael John D’Cunha convicting Jayalalithaa, Sasikala, Sudhakaran and Ilavarasi for amassing wealth disproportionate to their known sources of income. Justice Kumaraswamy notes that judge D'Cunha's reasoning "suffers from infirmity", and from page 890 onwards, explains the reasons for his decision to acquit Jayalalithaa, and thereby the other accused as well. He goes on to say that the total legitimate income of the accused, firms and companies was Rs 34.7 crore, and that the lack of proportionate amount was Rs 2.8 crore. The percentage of disproportionate assets therefore, was “relatively small” at 8.12 percent, and was therefore “within permissible limit”. Citing the Krishnanand Agnihotri case, he says that the law was clear that the value of the disproportionate assets must be more than 10 percent of the stated income for a conviction. Taking inflation into consideration, the margin of error could be 10-20 percent, Justice Kumaraswamy said. "It is well settled law that according to Krishnanand Agnihotri’s case, when there is disproportionate asset to the extent of 10%, the accused are entitled for acquittal. A circular has been issued by the Government of Andhra Pradesh that disproportionate asset to the extent of 20% can also be considered as a permissible limit. The margin of 10% to 20% of the disproportionate assets has been taken as a permissible limit, taking into consideration the inflatory measures." - Page 914, of the judgment  Conspiracy  On page 894 , Justice Kumaraswamy says that the prosecution failed to prove the allegation of conspiracy.  Referring to acquisition of certain properties, the judge said that there was little evidence to suggest that all the accused had conspired to achieve a common goal. "The prosecution mainly relies on evidence of the Sub-Registrar and brokers and also the sale deeds. Except marking the sale deeds, there is no other evidence. The burden lies on the prosecution to establish benami transaction. The prosecution has not adduced any evidence with regard to allegation of benami transaction. Accused No.1 is cine actress. She has filed returns since she was a minor." The judge noted, "Mere Accused Nos. 2 to 4 living with Accused No.1 (Jayalalithaa) does not itself contemplate offence of conspiracy. Conspiracy construes any combination or agreement between two or more persons to do an unlawful act. There must be reason to believe that there was conspiracy and accused persons were members of that conspiracy." The judgement then goes on to say that the plot on Chennai's Poes Garden and Natya Kala Nikethan were acquired by Jayalalithaa's mother Sandhya. Sudhakaran's wedding expenses The judge dismissed Cunha’s assessment that Jayalalithaa spent Rs 3 crore for her foster son Sudhakaran’s wedding, arguing that Cunha had relied too much on the statements of witnesses who had periodically changed their statements to the court during the course of the trial, which made it “unsafe” to rely on them. Expressing disagreement with Cunha's calculation of the marriage expenses, Justice Kumaraswamy said, "In our Hindu customs, it is bride’s family members who take care of marriage expenditure. Nominal expenditure will be borne by bridegroom’s family. Just because Accused No.1 was Chief Minister at that time, we cannot saddle all the marriage expenses on her part."  Party workers erected the pandal, and Jayalalithaa spent Rs 28 akh and the bride’s father Narayana Swamy spent Rs 18 lakh.  He says that if one removed the exaggerated value of the cost of construction and marriage expenses the value of disproportionate assets would be Rs 37 crore, of which much had been borne by others including AIADMK part workers, the bride's father and others. He also says that certain expenditure could not be verified and proved. "Due to insufficient and vague evidence, it is difficult to assess as to what is the 908 expenditure that is incurred. Besides, some expenses are not verifiable expenditure," the he said. He says that relying on income tax returns, Jayalalithaa had spent around Rs 28.68 lakh. Justice Kumaraswamy also said that the prosecution had mixed up the assets of accused, firms and companies, and added the cost of construction, marriage expenses when evaluating the quantum of disproportionate assets, thus arriving at the value of Rs 66 crore.  The judge has accepted Rs 4 crore as legitimate income from Jaya Enterprises. Taking into consideration the evidence of the defence witnesses, the judge said "even if there is a delay in filing the Income Tax returns, this cannot be a factor to reject the whole claim of the assessee. The evidence adduced by the defence will have some force. This aspect has to be taken into consideration while assessing the income spoken by the defence side." The judge adds: "Jaya Publications’ activities are Printing text books, Publishing, Real Estate and Namadhu MGR – newspapers, in my view, a sum of Rs 4,00,00,000/- has to be taken as an income earned by Jaya Publications." The income from Sasi Enterprises could be accepted as Rs 25 lakh. Justice Kumaraswamy had also calculated that loans worth Rs 18 crore could be included as income.  Read- When Subramanian Swamy turned his attention back on old friend and enemy- J Jayalalithaa