THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.916 OF 2008 ORDER: 1 Questioning the conviction and sentence of simple imprisonment for a term of one year and also to pay a fine of Rs.2,000/- in default, to suffer simple imprisonment for a period of six months, imposed on him for the offence punishable under section 13 (2) r/w 13 ( 1) (e) of Prevention of Corruption Act, by the learned Special Judge for SPE & ACB Cases, Vijayawada, by judgment dated 15.07.2008, the accused in C.C.No.11 of 2002 preferred this appeal. 2 The factual matrix, germane for setting the law into motion, is that the appellant being a public servant acquired assets in his name and in the name of his dependents which are disproportionate to the known sources of his income during the check period from 14.09.1978 to 30.12.1996 i.e. between the date of his entry into Government service till the date of search of his house conducted on 30.01.1997. Basing on the source report furnished to the Additional Director, ACB, Hyderabad to the effect that the appellant acquired assets disproportionate to his known source of his income, the Additional Director, ACB, A.P. Hyderabad issued orders vide proceedings in RC.No.5/MSB- II/VJA/97, dated 24.01.1997 authorizing the Inspector of Police, ACB, Vijayawada Range to register a case under section 13(2) r/w 13 (1) (e) of the Prevention of Corruption Act (for short ‘the Act’) against the appellant and investigate into the same. Accordingly a case in Cr.No.3/ACB-VJA/97 for the offences 13 (2) r/w 13 (1) (e) of the Act was registered by the Inspector-1, ACB, Vijayawada Range, Vijayawada and obtained search warrants from the court and conducted searches on the residential premises of the appellant and his relatives on 30.01.1997 and 31.01.1997 and it disclosed that total income of the appellant from all known sources of his income during the check period is Rs.12,15,360/- and the expenditure during the check period was worked out at Rs.7,95,002/- and the likely savings during the check period would be Rs.4,20,358/- against his possession of assets of Rs.14,05,478/- and hence the appellant was found in possession of disproportionate assets worth Rs.9,85,120/- to his known sources of income for which the appellant failed to account for satisfactorily though sufficient opportunity was given. After obtaining necessary sanction orders, the charge sheet was filed. 3 In support of its case the prosecution examined P.Ws.1 to 45 and got marked Exs.P.1 to P.100 and M.O.1 cash of Rs.5,000/-. However, the defence could succeed in getting marked Exs.D.1 to D.9 besides examining D.Ws.1 to 3. Exs.X.1 to X.11 were marked by Court through witnesses. After analyzing the entire evidence, the trial court came to the conclusion that the appellant is having disproportionate assets to the known sources of his income and accordingly convicted and sentenced him, as stated supra. 4 The contention of the learned Senior Counsel Mr. Padmanabha Reddy appearing for the appellant are two fold. Firstly, the authorization to conduct investigation was given only to P.W.44 the then Investigating Officer vide proceedings dated 24.01.1997 but P.W.45 conducted investigation and filed charge sheet and as such the entire proceedings are vitiated. In this context the learned senior counsel placed reliance on the ratio between State – Inspector of Police Vs. Surya Sankaram Karri[1]. Secondly, that at the time of marriage the adoptive parents of his wife gave an extent of 5 acres of land and some gold and silver articles towards pasupu kunkuma and the income derived from out of that land was not taken into consideration by the court below. Secondly, it is his contention that the court below had not taken into consideration the income derived by the wife of the appellant. According to him, the wife of the appellant is an advocate and she set up practice as a junior under D.W.3 and she also worked as typist in the office of D.W.1 for some period and if these items are also taken into consideration there is absolutely no disproportion at all to the known sources of the income of the accused officer. In support of the said contention, the learned Senior Counsel relied on Bhubaneswar Naik Santoshrai and others Vs. The Special Tahsildar Land Reforms Tekkali and others[2] and Gandevalla Jayaram Reddy Vs. Mokkala Padmavathamma and others[3]. 5 So far as the first submission is concerned, this court looked into the said proceedings dated 24.01.1997 issued by the Additional Director, Anti Corruption Bureau. As seen from the proceedings, it is clear that the same are not given in the name of P.W.44. The said proceedings read as follows: PROCEEDINGS OF THE ADDITIONAL DIRECTOR (A) ANTI CORRUPTION BUREAU, HYDERABAD Present: Sri B. Prasada Rao IPS R.C.No.5/MSB-II/VJA/97 Dated: 24.01.1997 Sub: Public Servants – Allegation of acquisition of assets disproportionate to the known sources of income against Sri Sikharam Satyanarayana, Inspector of Police, Gudiwada Town, Krishna District – Registration of case – Orders issued. . . . It is reported that Sri Sikharam Satyanarayana, Inspector of Police, Gudiwada Town, Krishna District is in possession of assets disproportionate to the known sources of his income by corrupt means. As this constitutes an offence U/s.13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act, 1988, I, under the powers vested in me u/s.17 of the Prevention of Corruption Act, 1988 do hereby authorize Inspector of Police, Range-I, ACB, Vijayawada Range to register a case U/s. 13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act, 1988 against Sri Sikharam Satyanarayana, Inspector of Police, Gudiwada Town, Krishna District and to conduct investigation and send the repot at an early date. By virtue of the powers vested in me under the proviso to sanction 18 of the Prevention of Corruption Act, 1988, I also hereby authorize Inspector of Police, Range I, ACB, Vijayawada, Vijayawada Range, to inspect any bankers’ books of the accused officer or of any other person concerned with the affairs of the accused officer and take or caused to be taken certified copies of the relevant entries there from for the purpose of investigation. Sd/-x x x x x Additional Director (A) Anti Corruption Bureau Hyderabad. To The Inspector of Police, Range – I, A.C.B, Vijayawada, Vijayawada Range. 6 From the above it is clear that the authorization is given in the name of Inspector of Police, but not in the name of any individual. If the said proceedings are issued in the name of P.W.44, probably, the said contention raised by the learned senior counsel can be countenanced and the judgment on which reliance was placed will also be of some help. But for the reason that the said authorization is given to the Inspector of Police, and not in the name of any individual, whether it is P.W.44 or P.W.45 who conducted investigation and filed charge sheet is immaterial. P.W.45 succeeded P.W.44 in the office and he conducted investigation and filed charge sheet. Therefore the ratio in Surya Sankaram Karri (1 supra) relied on by the learned senior counsel in this regard has no relevance to the case on hand and hence the said contention is rejected. 7 So far as the other contention that the prosecution as well as the court below did not take into account the income derived from the properties given to the accused officer by his in laws and also the income of his wife and if the same are taken into consideration there will not be any disproportion in the income of the accused officer is concerned, this court is of the opinion that the entire material on this aspect has to be looked into. 8 No doubt, the court below, by probing deep into each and every aspect on the known sources of income of the appellant and by giving elaborate discussion, has come to the conclusion that the appellant was in possession of assets to a tune of Rs.13,80,378/- and the income of the appellant during the check period was Rs.12,87,695-50, the accepted additional income was Rs.1,26,662-10, and the expected expenditure was Rs.7,26,125-43. The trial court calculated the likely savings of the appellant at Rs.6,88,232-17 ps and thereby, after giving 10% deduction, held that the appellant got disproportionate assets to a tune of Rs.6,22,931-25 ps. 9 Now the point for consideration is whether the trial court has calculated the cost of assets on the properties and the items possessed by the appellant and the approximate and acceptable expenditure of the appellant and the additional income correctly or not. 10 Before adverting to the said point, I deem it appropriate to deal with the decisions relied on by the learned Senior Counsel Mr. Padmanabha Reddy with regard to the gifting of landed property and other gold and silver articles to the wife of the appellant by her adoptive father. 11 In Bhubaneswar Naik Santoshrai case (2 supra), the apex Court while dealing with the question whether a gift of land made, under Exs.P.1 and P.2 in the said case, in favour of daughter or sister towards ‘pasupu kunkuma’ as marriage provision requires to be conveyed by a registered document, held that they do not require any registration, for they are not gifts within the meaning of Section 122 of T.P Act nor do they fall in any one of those transactions enumerated in section 122 of the T.P. Act requiring thereby any registration and they are not actually the gifts but the expression of intention to give away the property can be used for the purpose of evidencing the fact of the property being given away towards ‘pasupu kunkuma’ and the same are admissible in evidence. 12 In Gandevalla Jayaram Reddy case (3 supra) a Full Bench of this court held that the Hindu Adoption and Maintenance Act obliges a parent to maintain a married daughter in certain circumstances, but that would not mean that any transaction of immovable property as a result whereof, the right, title and interest is passed on; be she a daughter or sister at the time of her marriage or otherwise, would not be compulsorily registrable. 13 So, keeping in view the above decisions this court looked into the record. While computing the total assets of the appellant in respect of certain item the prosecution as well as the trial court have not assessed the same correctly. The case of the appellant is that the adoptive father of his wife by name Subbarayudu had gifted 5 acres of land and Rs.50,000/-of cash and gold and silver articles worth the same. In support of the said contention Ex.P.23 dated 09.03.1982 was pressed into, which was marked through P.W.9. However, no further examination with regard to who purchased the stamps was done. Further, P.W.14 stated that crop loans were sanctioned to the appellant and his wife. If at all the wife of the appellant was not gifted any land, question of applying for crop loan does not arise. Further, in any Hindu family gifting of land or some other valuable immovable properties is nothing but common. When once it came on record that the wife of the appellant was given in adoption it cannot be held that she was not given any land by way of gift i.e. towards Pasupu Kunkuma at the time of marriage particularly when she has her natural father and an adoptive father. Though there is a document marked as Ex.P.23, the trial court brushed aside the same and did not take the same into purview for the reason that it is not a registered document. Even the investigating Officer PW.44 also stated that the adoptive father of the wife of the appellant by name Subbarayudu was owning 17 acres of land but as on the date of his investigation the said Subbarayudu was in possession of only 12 acres of land. Hence and in view of the ratio laid down in the above two judgments i.e. Bhubaneswar Naik Santoshrai and Gandevalla Jayaram Reddy cases, though the said document Ex.P.23 is an unregistered document, it has to be treated that the adoptive father of the wife of the appellant had gifted 5 acres to the wife of the appellant. 14 Further, it is there in the evidence that the said land was given on lease, but the amounts, which the tenant (P.W.7) has spoken to with regard to lease amount appears to be somewhat artificial. P.W.7 stated that he used to give rents to the wife of the appellant at the rate of Rs.5,000/- per acre per annum in the year 1986 and subsequently it was enhanced to Rs.10,000/- per acre. I do not think that an amount of Rs.5,000/- was paid in the year 1986 towards lease per acre per annum. But if a minimum amount of Rs.5,000/- per annum per acre is taken on average, for the entire 5 acres of land, it would amount to Rs.3,50,000/- for the entire period of 14 years i.e. from the date of the marriage of the appellant till the date of check (Rs.5,000/- X 5 X 14 = Rs.3,50,000/-). 15 It is the contention of the appellant that in respect of item No.8 in the abstract of expenditure i.e. maintenance of scooter the prosecution as well as the court below assessed at Rs.25,459-00 but the department will provide the maintenance charges of the scooter for the official purpose. In this context, it is the evidence of P.W.45 that the appellant would be provided conveyance amount. Hence, the said amount has to be deleted from the caption of expenditure items. 16 The contention of the appellant is that his wife earned nearly Rs.1,75,000/- on her practice. P.W.45 admitted that the wife of the appellant practiced as advocate and that she earned an amount of Rs.2,500/- per month as junior advocate. Since the practice of the wife of the appellant was in early 1990s, the same can be valued at Rs.1,00,000/-. The appellant contended that his wife worked as typist in the office of D.W.1 and earned an amount of Rs.40,000/-. To establish the same he got examined D.W.1. D.W.1 also stated that he issued Ex.D.7 certificate showing that the wife of the appellant worked as typist in his office at a monthly salary of Rs.1,000/-. The trial court held that the said amount could not be accepted as additional income for the reason that D.W.1 did not file any document to show that in income tax returns the said amount was shown. But the explanation offered by D.W.1 that since it is a small amount, and since the same is a petty job, he did not give any appointment order appears to be proper. Hence the said amount of Rs.40,000/- can be taken as additional income. Even otherwise apparently the wife of the appellant completed law in December 1993 and she set up practice. D.W.1 stated that she worked as typist for some period in his office and D.W.3 stated that she worked as junior advocate in his office for some period. Of course, the same was not shown in the income tax returns. The fact that she is an advocate and she set up practice cannot be denied. When once her practice as an advocate is taken into consideration it can safely be presumed that she must have earned some income during the said period of three years. If we take a minimum of Rs.1,500/- p.m. it works out to Rs.18,000/- per year and for the total three years it works out to Rs.54,000/-. In those circumstances, the income of the wife of the appellant can be taken as Rs.50,000/- 17 Right from the beginning it is the contention of the appellant that his wife was given Rs.50,000/- at the time of her marriage and some gold and silver articles worth the same. The marriage of the appellant was in the year 1981 and the alleged check was conducted in the month of January 1997 i.e. after lapse of 16 years. In that view of the matter, the said money would have been doubled or so if the same was kept in any bank. 18 Further, at item No.7 of the additional income of the appellant to a tune of Rs.1,10,000/-, the prosecution as well as the trial court have not taken any consideration. In fact, the trial court, by going ahead to some extent, stated that though there is evidence of P.W.19, the brother of the appellant, but the same was not borne out by any record. Here, we have to observe some thing. In a joint family, whenever there is an occasion, the elders of the family give some gifts either by way of cash or kind. In that process, it is the evidence of P.W.19 as well as the contention of the appellant that the mother of the appellant and also his brothers gave amounts to his sons. So that aspect has to be taken into consideration and if the same is considered, an amount of Rs.1,00,000/- can be accepted as additional income. 19 The trial court has not taken all the above aspects into consideration, and if they are taken into consideration there are no disproportionate assets to the known sources of income of the appellant. Hence I am of the opinion that the prosecution failed to prove the guilt of the appellant beyond all reasonable doubt and accordingly, the conviction and sentence imposed by the trial court on the appellant are liable to be set aside. The disproportionate income arrived at by the trial court, after calculation, works out to Rs.6,22,931-25 ps. If the incomes as assessed by this court i.e. Rs.3,50,000/- towards agricultural income from out of the lands possessed by the wife of the appellant, her personal income for an amount of Rs.50,000/- and the gift articles given to the wife at the time of marriage which is working out to Rs.1,00,000/- and the additional income given to the appellant by her mother and brothers during the check period i.e. Rs.1,00,000/- are taken into account, by any stretch of imagination, it cannot be said that there is disproportion to the known sources of income of the appellant. 20 In the result, the appeal is allowed and the conviction and sentence on the appellant for the offence punishable under section 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act, by the learned Special Judge for SPE & ACB Cases, Vijayawada, by judgment dated 15.07.2008 are hereby set aside. The fine amount paid by the appellant shall be returned to him. ---------------- Sri T.G.K, J. 21.03.2011 Kvsn [1] (2006) 3 SCC (Cri) 225 [2] AIR 1980 A.P. 139 [3] 2001 (5) ALT 130 (F.B.)