‘One totalling error has resulted in her acquittal’

Print edition : June 12, 2015
Interview with B.V. Acharya, Special Public Prosecutor.

B.V. ACHARYA, Special Public Prosecutor (SPP), has given this univocal advice to the Karnataka government: “Appeal the verdict of the Special Bench of the Karnataka High Court acquitting Jayalalithaa in the Supreme Court.” Acharya has 58 years of legal practice behind him, right from the court of the tahsildar to the Supreme Court of India, and in almost all branches of law, including constitutional, civil and criminal, on the original and the appellate side, besides stints as the Advocate General of the State, the Chairman of the State Bar Council, and Member of the Law Commission of India. Although reluctant to divulge specific details of the report he submitted to the Karnataka government until the Siddaramaiah government takes a decision, Acharya said that “the public was agitated by the acquittal” of Jayalalithaa in the appellate court and wanted the government to appeal in the Supreme Court. He said: “In these days of transparency, it is difficult for me or anyone to just keep quiet. That is why I have publicly stated that I have already submitted my report/legal recommendations to the government.” Excerpts from an interview he gave Frontline:

Did the Supreme Court err in not allowing you to submit oral arguments before the Special Bench of the Karnataka High Court?

Yes. But I don’t want to go into that now.

When it struck down G. Bhavani Singh’s continuation as the SPP, the Supreme Court asked the High Court judge, Justice C.R. Kumaraswamy, presiding over the Special Bench in the case to make a “complete and comprehensive evaluation and appreciation of the evidence in its entirety before rendering a judgment”. Do you think that happened?

If that had happened, there would be no grievance for the State [and prosecution]. In my view, this direction has not been strictly followed by the Special Bench. Even without that direction, an appellate court, particularly when it is reversing an order and wants to reverse every one of the findings and the reasons upon which [the trial court based its conclusion], should scrutinise and find fault with the reasoning and it must say why it is finding fault. Then, it must give its own cogent reasons for the contrary conclusions it is making. That is the difference between a conforming judgment and a reversing judgment.

Are you saying that this methodology was followed in the judgment of the appellate court?

Here, it is a reversing judgment. You read the appellate court’s judgment and you read the trial [lower] court’s judgment. Except for broadly saying that the lower court has not appreciated the evidence, which is too broad and general a term, the court has not specifically said that this part of the judgment is bad because of this reason or the other.

So you feel that you have sufficient grounds to appeal?

Certainly. I can [be apprehensive] in a judgment where there is a minor defect in the law. [But] here is a judgment where apart from all other things one totalling error alone has resulted in acquittal in such an important case. We will go in appeal where we will tell the court in temperate, moderate language that the High Court has erred in that calculation. We are not criticising the judge, we are criticising the judgment.

Yes, this calculation….

There can be disagreement on law, on representation of evidence, on theory… but there cannot be disagreement on numbers. On page 852 of the judgment, 10 items [loans taken by the accused and their firms/companies] are mentioned and the total given is Rs.24,17,31,274. But a totalling of these same 10 items shows it as only Rs.10,67,31,274. How can there be different figures [totals] for the same numbers?

But the defence has pointed out that donations were also made and could be part of this…

The judge has never referred to anything being left out. If there are any omissions, let them be pointed out. And even if there are omissions, that can’t make the totalling right.

How do think this glaring totalling error came about?

I don’t know. I have never seen such a glaring mistake in 58 years of my legal practice, that too in a matter of such importance. In a disproportionate assets case, you find out what the resource lawfully available is, and, here, while considering the lawfully available resource, what the judge says is the loans they had borrowed from nationalised banks have not been taken into account by the prosecution. He refers to some private loans. The accused have claimed that they borrowed loans from X, Y, Z. It could be manipulation and the judge need not believe it. But borrowings from nationalised banks you can’t dispute, so the judge says ‘I will take into account only loans from nationalised banks’ and then says ‘there are 10 items’. He gives the particulars and says the ‘total loans come to Rs.24,17,31,274’.

Out of this loan amount of Rs.24,17,31,274, a sum of Rs.5,99,85,274 is deducted to the income assessed by the Directorate of Vigilance and Anti Corruption. The DVAC has said that the loans borrowed and outstanding from nationalised banks is Rs.5,99,85,274. The difference you get after deducting this amount from the total loans amount is Rs.18,17,46,000. This amount, the judge says, was available with the accused but has been ignored by the prosecution and it has failed to take this amount into consideration while calculating the income. He then takes this amount into account and proceeds. His contention is that the total income of the accused, their firms and companies is Rs.34,76,65,654 [against assets of Rs.37,59,02,466] and, therefore, the disproportionate assets come to Rs.2,82,36,812, with the percentage of disproportionate assets being 8.12 per cent, which the judge reasons is relatively small, being less than 10 per cent and within the permissible limit. Therefore, the accused are entitled to acquittal .

But in actual fact, if you total the 10 items listed as loans from nationalised banks, you get Rs.10,67,31,274 not Rs.18,17,46,000 as the judge has mistakenly calculated. If you take Rs.10,67,31,274, then the loans total to only Rs.4,67,46,000 and this is the final calculation that the prosecution has not added to the accused’s income. There is no dispute over the assets. But when it comes to income and the loans, which are part of the income, the amount is shown as Rs.18,17,46,000 when it should be Rs.4,67,46,000, which is the amount the prosecution has failed to account for as part of the accused’s income. And if the amount is Rs.4,67,46,000, then the total income correctly calculated comes to Rs.21,26,65654, whereas the judge put it at Rs.34,76,65,654, and the percentage of disproportionate assets, which is the difference between the total assets [Rs.37,59,02,466] and the actual legal income [of Rs.21,26,65654] multiplied by 100, amounts to 76.76 per cent.

You have pointed out that the judgment erroneously calculates Jayalalithaa’s disproportionate assets as 8.12 per cent of her and acquits her.

Yes. One totalling error has resulted in her acquittal as against conviction. If the totalling is corrected, the disproportionate assets come to 76.76 per cent and the judge himself on the face of it states that disproportionate assets above 10 per cent are liable for prosecution.

There is also another glaring scenario: according to us, the Rs.5,99,85,274 that has been taken from nationalised banks has been properly calculated. But the judge has taken all loans as per the sanctioned amount, not the amount that was actually released or received. For example, the first loan had already been repaid, so cannot be taken into account and loan number 3 was granted post-1996, after the check period. In some others [loans], the actual amount released was different from that sanctioned. The investigation officer has taken everything into consideration, and the Rs.5,99,85,274 is correct. But if these loan amounts are correctly calculated, the Rs.18,17,46,000 will get further reduced and the income becomes Rs.16-odd crore and the proportionate excess income will come to nearly Rs.21 crore, resulting in disproportionate assets of around 125 per cent. So we have two scenarios, one with only a correction of the totalling, and the second, where we take into consideration the mistake by the judge in taking into account incorrect loan amounts.

Any other points?

So many… for instance, value of buildings…. There are some 19 buildings, and they are all posh buildings. Engineers put their value at around Rs.27 crore, but the trial court reduced it to Rs.22 crore. Now the appellate court judge says that he takes a round figure of Rs.20,000 per square foot and reduces it from Rs.22 crore to Rs.5 crore. Totally wrong.

But can an appellate court judge do this?

He can appreciate evidence, but this is drastic.

Jayalalithaa’s supporters claim that she received gifts on her birthday.

Yes, Jayalalithaa has also claimed over Rs.2.15 crore as income from birthday gifts, which she received on her 44th birthday in 1992. The judge has fixed it at Rs.1.5 crore. Most of them are in the form of drafts since she wanted it on record. But regarding these gifts, the CBI after investigations filed a charge sheet against Jayalalithaa stating that by receiving 44 demand drafts worth Rs.1,26,96,540 drawn in her favour without consideration from persons with whom she had official transactions or business transactions or to be transacted with, she committed an offence punishable under Section 11 of the Prevention of Corruption Act, 1988. The Madras High Court quashed the case citing a delay in the investigations, but the CBI filed a special leave petition [number 1163-1167 of 2012] in the Supreme Court where it is still pending. How can this money be shown as income? It is like showing a bribe as income. The lower court did not accept this. But the fact that the CBI has filed a charge sheet was not brought to the notice of the appellate court.