What is the case against Ponmudy?
K. Ponmudy had served as the Minister for Higher Education and Mines in the Dravida Munnetra Kazhagam (DMK) government led by the then Chief Minister M. Karunanidhi between 2006 and 2011. After the All India Anna Dravida Munnetra Kazhagam (AIADMK) led by Jayalalithaa came to power in the State pursuant the 2011 Assembly election, the Directorate of Vigilance and Anti Corruption (DVAC) registered a First Information Report (FIR) against him on September 26, 2011.
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The charge was that he and his wife P. Visalakshi had amassed ₹1.7 crore disproportionate to their known sources of income. The DVAC’s final report stated that the couple had assets worth ₹2.71 crore at the beginning of the check period on April 13, 2006 and that their assets had increased to ₹6.27 crore at the end of the check period on May 13, 2010. After deducting their admissible income and expenditure during the said period, the couple were unable to account satisfactorily for ₹1.7 crore, the prosecution claimed.
Therefore, it pressed the charge of criminal misconduct against the Minister under Section 13(2) of the Prevention of Corruption Act (PCA), 1988 and accused his wife of abetting him.
What happened at the trial court?
After holding a full- fledged trial, pursuant to the filing of the charge sheet, a special court for Prevention of Corruption Act (PCA) cases in Villupuram acquitted both of them on April 18, 2016.
One of the prime reasons given by the trial court for the acquittal was that the prosecution had failed to prove that the Minister had given his allegedly ill-gotten money to his wife for acquiring the assets. The special court pointed out that the Minister’s wife had individual income flowing through agriculture as well as certain businesses run in her name.
“It has also been seen that A2 (Minister’s wife) has been paying advance taxes for her business. It is not axiomatic that an individual, for that matter a wife living with her husband, who is a public servant, would have abetted him for acquiring disproportionate assets using his public office. Even if A1 and A2, who are husband and wife as in the present case, live under one roof, it cannot be presumed that A2 had abetted A1 and acquired disproportionate assets. It is for the prosecution to prove it with sufficient oral and documentary evidence... In the present case there is no iota or shred of evidence to hold that A2 had abetted A1 and acquired disproportionate assets,” special judge T. Sundaramoorthy wrote.
“It is also worthwhile to notice that the prosecution has not let in any credible evidence to establish that A1 being a public servant has funneled money to A2 for acquiring disproportionate assets. The prosecution has miserably failed to put forth any oral or documentary evidence for proving that money has been transferred by A1 to his wife who is A2,” the special judge had concluded.
When did the DVAC appeal against the verdict?
The DVAC preferred an appeal against the special court verdict in 2017 since the AIADMK government had continued to be in power in the State for two successive terms beginning from 2011.
Interestingly, it was Justice G. Jayachandran of the Madras High Court who had ordered notices to the Minister as well as his wife on the DVAC’s appeal on February 2, 2017 when it was listed for hearing for the first time before the High Court. Thereafter, the appeal was listed before various judges in the last six years only to be adjourned from time to time for one reason or the other.
After Mr. Justice Jayachandran was allocated the MP/MLA portfolio from October 3, 2023, he decided to give preference to old appeals pending for long and took up the 2017 DVAC appeal for final hearing. Senior Counsel N.R. Elango and R. Basant argued on behalf of the Minister and his wife respectively and Additional Public Prosecutor Babu Muthu Meeran represented the DVAC before the judge reserved his verdict on November 27, 2023.
What fault did High Court find in trial court verdict ?
Delivering the judgment on December 19, 2023, Mr. Justice Jayachandran held that the trial court’s acquittal order was “palpably wrong, manifestly erroneous and demonstrably unsustainable.”
He said: “This court finds that the trial court, on superficial reading of the evidence, had proceeded with the process of decision making on the premise that A1 and A2 are separate entities and they both cannot be clubbed together. This is basically a fallacious approach by the trial court. The trial court has failed to understand that the substance of charge against A2 is that she being the wife of A1 (public servant) was holding the assets of A1 which he had acquired through unknown source. Whether, the lack of capital/source to yield income proportionate to the properties acquired in the name of A2 during the check period is the point which ought to have been first examined by the trial court. Instead, it has ignored all the material evidence placed by the prosecution to show that the business and the agricultural land of A2 had not yielded income sufficient to acquire the wealth held in her name.”
The judge also wrote: “In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence for the purpose of ascertaining as to whether the accused really committed any offence or not.” Therefore, he reversed the acquittal order, convicted both the Minister and his wife and ordered their appearance on December 21, 2023 to give them an opportunity of hearing before deciding the sentence to be imposed on them.
What does the law say on disqualification of a legislator in such circumstances?
The Minister’s disqualification, from being a legislator, would fall under Section 8(1) of the Representation of the People Act, 1951 and not Section 8(3) under which Member of Parliament Rahul Gandhi had got disqualified after his conviction and two year sentence in a criminal defamation case.
Section 8(1) lists out select offences such as those which fall under the Narcotic Drugs and Psychotropic Substances Act, Foreign Exchange (Regulation) Act and Prevention of Corruption Act and states that a conviction and mere imposition of fine under those laws would be sufficient for a legislator to be disqualified for a period of six years from the date of conviction.
Section 8(1) also states that if a legislator gets imprisoned for those select offences, then he must be disqualified from the date of conviction till the entire term of imprisonment and also for a further period of six years from the date of release from prison.
Unlike Section 8(3) under which a legislator would suffer disqualification only on being imposed with a minimum sentence of two years, no such minimum requirement had been stipulated under Section 8(1) which provides for disqualification just on imposition of fine or imprisonment even for a single day.
Though Section 8(1) does not use the words ‘shall stand disqualified’ to mean that the disqualification would be automatic on account of conviction and there would be no need for a notification to that effect from the Legislative Assembly Secretariat, it uses the words “shall be disqualified from the date of conviction” meaning that the disqualification notification must necessarily be given effect from the day when a legislator gets convicted.
