THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.1126 of 2003 JUDGMENT: The original appellant Sri Chenna Prasad (hereinafterwards for convenience referred to as ‘AO’ i.e. Accused Officer) was the accused in C.C.No.12 of 1998 on the file of the Court of Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad (trial court). He was tried on a charge under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act) relating to possession of assets/wealth disproportionate to his known sources of income. His plea was one of denial. He came up with the defence that some of the assets which admittedly stand in the name of his wife Smt.Satyavathi belong to her and he has nothing to do with them and therefore they have to be excluded from those assets. Even with regard to his income and expenditure during the relevant period he came up with the plea that the prosecution has boosted his expenditure and has deliberately shown reduced income and if his pleas are accepted he has to be acquitted of the charge. 2. The trial court, after considering the oral and documentary evidence let in by the prosecution and also the AO, by its judgment dated 23.10.2003 convicted him of the above charge and sentenced him to undergo rigorous imprisonment for five years and also to pay a fine of Rs.50,000/- with a default clause prison sentence of rigorous imprisonment for two years. Further the trial court also ordered confiscation of items 1, 2 and 3 and also item 8 of the assets to the extent of the value of the disproportionate wealth of the AO fixed by it. Questioning the said judgment of the trial court the AO filed this criminal appeal. 3. Pending the appeal the AO died. Thereafter his widow Smt.Satyavathi (hereinafterwards referred to by her name) filed Crl.A.MP.No.2125 of 2005 seeking leave to prosecute the appeal as the legal representative of the AO and that was ordered. It is clear that she came on record as the pension of her husband and confiscation of certain assets claimed as belonging to her are involved in the appeal. 4. Now turning to the merits in the appeal, the AO late Sri Chenna Prasad entered into service in the Social Welfare Department of the Government of Andhra Pradesh on 05.05.1977 and by 21.07.1994, he was working as Deputy Director, Social Welfare Department, Warangal. He was placed under suspension on 21.07.1994 and his houses/ premises were searched on 09.11.1994 in connection with the present charge. The other details are all mentioned in the trial court’s judgment. 5. The prosecution has chosen the check period from 05.05.1977 to 09.11.1994 for the purpose of calculating his disproportionate wealth. The value of the assets acquired and possessed by the AO in his name and his wife’s name, his total income and total expenditure during the check period along with his savings and the value of the disproportionate wealth are setout by the prosecution in the charge sheet and they are as follows. (i) Aggregate value of assets (11 assets) - Rs.36,54,819/- (ii) Total income (9 items) - Rs.12,42,353/- (iii) Total expenditure (16 items) - Rs. 7,95,960/- (iv) Savings (income-expenditure) - Rs. 4,46,393/- (v) Value of the assets disproportionate to the known sources of income - Rs.32,08,426/- 6. The trial court after considering the evidence let in by the both sides partly accepted the version of the AO while rejecting his other defences and fixed the values of the above five items as follows. (i) Aggregate value of assets (11 assets) - Rs.32,63,488-40 ps. (ii) Total income (9 items) - Rs.11,87,389-00 ps. (iii) Total expenditure (16 items) - Rs. 4,89,696-00 ps. (iv) Savings (income-expenditure) - Rs. 6,97,693-00 ps. (v) Value of the assets disproportionate to the known sources of income - Rs.25,65,795-40 ps. 7. Having reached the above conclusion, the trial court found that the AO is guilty of the charge to the extent of Rs.25,65,795-40 ps. which it fixed towards the value of his disproportionate assets and convicted and sentenced him as aforesaid. In this appeal, it should be mentioned that the learned counsel for the AO did not raise any objection regarding the validity of the sanction accorded for prosecution of the AO and he did not also raise any objection with regard to the procedure adopted by the trial court in trying the case and he argued the matter only on merits of the charge. 8. It should be noted here that items 1 to 3 and 8 in the list of assets which are two houses and a flat and certain gold ornaments/jewelry whose ownership was disputed by the AO are important. The values of the said items have been fixed by the trial court as Rs.20,63,400/-, Rs.2,83,824/-, Rs.3,70,000/- and Rs.2,50,000/- respectively. The aggregate values of these four items itself would cross the value of the disproportionate wealth fixed by the trial court. However, after giving certain deductions and allowances in income and expenditure it found the value of the disproportionate wealth of the AO at Rs.25,65,795-40 ps. 9. Sri Padmanabha Reddy, the learned senior counsel appearing for the AO’s counsel, mainly contested the findings of the trial court on the above four items on the premise that if his contentions are accepted the judgment of the trial court cannot be sustained. He also argued with regard to certain other items of assets, income and expenditure to show that the judgment of the trial court cannot be sustained and they will also be taken up. Sri R.Ramachandra Reddy, the learned standing counsel for the Anti Corruption Bureau (for short ACB)/ prosecuting agency opposed all the contentions raised on behalf of the AO and pointed out that going by the evidence on record there is no ground to interfere with the judgment of the trial court. In the course of arguments, the correctness of the confiscation order of items 1 to 3 and 8 was also canvassed on behalf of the AO and I shall deal with that contention at the appropriate stage. 10. Before I proceed further, one aspect about the trial court judgment has to be mentioned and that is this. I have already setout supra how the trial court has come to its own conclusions in reducing the value of the disproportionate assets of the AO from Rs.32,08,426/- which is pleaded by the prosecution to Rs.25,65,795-40 ps. as held by it. The prosecution did not file any appeal questioning this finding of the trial court. It may however be noted that Sri R.Ramachandra Reddy, the learned standing counsel for the ACB could not convincingly show any reason to hold that the trial court’s valuation of the disproportionate assets at Rs.25,65,795-40 ps. is wrong and that the values given by the prosecution should be restored though he could argue the said aspect having regard to the scope of power of this court under Section 386 Cr.P.C. even in an appeal by the accused from conviction. Hence the appeal is being disposed of on the values of the disproportionate wealth, income and expenditure as fixed by the trial court by examining whether it was right in doing so. As this is an appeal from conviction and is in the nature of a regular first appeal all the contentions raised on behalf of the AO and his wife are proposed to be taken up in detail. Now the contentions raised on behalf of the AO with regard to items 1 to 3 and 8 of the assets are first taken up. 11. Now coming to item 1 of the assets, this is a house (No.18A) bearing municipal No.7-1-397/109, situated at Sanjeevareddy Nagar, Hyderabad. Ex.P.14 in the sale deed dated 19.4.1993 for Rs.6,00,000/- and it shows that it stands in the name of Satyavathi who is the widow of the AO. The vendor under the said sale deed is one Sambasiva Rao. After the purchase of the said house, it was demolished and after obtaining permission from the municipal authorities/ corporation authorities, ground floor and first floor were constructed and the total plinth area works out to more than 4,000 square feet including balconies and this is not in dispute and the construction also took place during the years 1993 and 1994. 12. The plea of the AO was that he had nothing to do with the above house and his wife Satyavathi raised money for initially buying the said house and also for new constructions made on its site. P.W.10-P.V.Subba Rao, the then Deputy Director of Engineering Wing of ACB evaluated the new construction and estimated it to be Rs.16,26,000/- and adding the sum of Rs.6,00,000/- which was the value of the old house he fixed the total valuation of the said house at Rs.22,26,000/-. The trial court after discussing evidence and also the valuation report of D.W.4- R.S.Sreerama Murthy, a retired Engineer, who also earlier worked for ACB and who gave the value of the construction at Rs.10,74,500/- on behalf of AO ultimately came to the conclusion that the value of the construction can be fixed at Rs.14,63,400/-. In doing so, the trial court granted 10% allowance on the SSR rates on which P.W.14 calculated the valuation. Adding Rs.6,00,000/- for which the old house was admittedly purchased, the trial court fixed the valuation at Rs.20,63,400/-. The trial court elaborately considered the documents relating to the above valuation of the new construction and no circumstance has been brought to my notice to hold that the conclusion of the trial court on this aspect of valuation is perverse and calls for interference. 13. The AO however made an attempt to show that his wife Satyavathi raised resources on her own for buying the old house and also making new constructions after its demolition and he has nothing to do with it and it cannot be treated as his asset. This lady, Satyavathi, it should be noted, though she is not the accused, did not choose to give evidence in the trial court to support her beneficial interest though the AO let in evidence of other witnesses to show that the house belongs to her. This is the first minus point for the AO and as well as the said lady who is now prosecuting the appeal. In the trial court D.W.2, D.W.10, D.W.11, D.W.13, D.W.14, D.W.17, D.W.19 and D.W.1 were examined by the AO to show that Satyavathi raised loans or got money from the above witnesses for the purpose of new construction. The trial court rejected their evidence and concluded that their evidence was unreliable and they gave evidence only to accommodate the AO and his wife. The learned senior counsel attacked the reasoning of the trial court in rejecting the evidence of the above witnesses and argued that their evidence ought to have been accepted. This contention has now to be examined. 14. D.W.2-Paleti Subba Rao is father-in-law of the AO and father of Satyavathi. His version is that he gave 30 tulas of gold ornaments and two kilograms of silver articles and cash of Rs.10,000/- to his daughter at the time of her marriage which is said to have taken place on 15.11.1975. He then added that in the year 1994, he gave cash of Rs.5,00,000/- to Satyavathi for the purpose of making new construction in the site of item 1 house. The trial court discussed the evidence of D.W.2. A perusal of the answers given by him in the cross-examination would show that his bank balances at the relevant time in two banks i.e. Central Bank, Kalyan Nagar branch and Andhra Bank at Nidumolu, Krishna District had meager balances of Rs.521/- and Rs.405/- respectively. 15. Further under Ex.D-6-sale deed dated 25.6.1994 under which he is said to have sold some lands in Krishna District shows that he sold the said lands for a sum of Rs.25,600/-. In his evidence, D.W.2 was not in a position to show the source from which he raised a sum of Rs.5,00,000/- which cannot be said to be a small amount to give it to his daughter. It also discussed about sales of other lands by D.W2 which are of 1953, 1954 and some other years long prior to 1990 but rejected them. The trial court in my opinion rightly held that D.W.2 was speaking only to accommodate the AO and was not in a position to give Rs.5 lakhs to Satyavathi. 16. The AO then examined D.W.10-Mohammed Ibrahim, D.W.11-V.Venkata Durga Prasad, D.W.13-B.Krishna Reddy, D.W.14-L.Chenna Reddy (a cousin of D.W.13) and D.W.19- P.N.Satyanarayana Yadav of various places to show that Satyavathi borrowed amounts from them for the purpose of making new construction on item-I. The AO also examined his youngest brother D.W.17-Venkataramaraju Chenna to speak about the giving of gold ornaments (shown as item-8 in assets) to his wife which are said to have been pledged with a bank for raising money for the purpose of new construction made on the site of item-I. The trial court elaborately discussed the evidence of each of the above witnesses and rejected the defence version and observed that the above witnesses only gave evidence to accommodate the AO and his wife and that the said loan transactions were not believed. Sri Padmanabha Reddy argued that the reasoning given by the trial court for rejecting the evidence of above witnesses is not sound and that the evidence of the above witnesses has to be accepted. It may be noted that Satyavathi herself, to repeat, did not enter into the witness box and speak about the above loan transactions and the borrowals said to have been made her and as already mentioned this is the first minus point for the defence. Added to this, the evidence also does not show that Satyavathi herself had a repaying capacity. As will be presently seen the trial court also rejected for good reasons her plea that she was employed and had an independent source of income. Each one of the above witnesses is said to have advanced a sum ranging from Rs.1.5 lakhs to Rs.3 lakhs and the trial court had discussed these aspects. None of them filed their accounts or any material to show that their evidence is worthy of being relied upon. 17. The alleged loans said to have been given by the above witnesses commence from 12.12.1993 i.e. the date of the loan said to have been given by D.W.10 and extend upto 20.6.1994 which is the date of the loan said to have been given by D.W.14. The defence could not make out any strong acquaintance between Satyavathi and the above witnesses so as to believe the defence version that the above witnesses could trust Satyavathi and give the loans to her ranging upto Rs.13.5 lakhs which cannot be said to be a small amount and all of which are unsecured loans. All the above witnesses come from different places. This apart, in Ex.P.14-sale deed pertaining to item-1 Satyavathi is described as a household lady. An attempt was made to show that she had some employment and an independent source of income for initial purchase of the house but this was rejected by the trial court and in my opinion rightly and I shall deal with this aspect while dealing with additional incomes pleaded by the AO. It is quite unnatural and improbable to believe that the above witnesses would have lent in all Rs.13.5 lakhs to a household lady without any security. The above circumstances would show that the loan transactions cannot be relied upon and the above witnesses were pressed into service only to suit the defence of the AO. This apart, Satyavathi herself did not, to repeat, enter into the witness box to assert that she raised above loans and this itself shows that Satyavathi was not prepared to make herself available for cross-examination and this is a strong circumstance which shows that the defence version cannot be relied upon. Regarding valuation of this item, however, the AO could not lead any convincing evidence or show any circumstances to hold that the valuation fixed by the trial court is on higher side. 18. Sri Padmanabha Reddy argued that since the prosecution alleged that Satyavathi, wife of the AO, is a benamidar for him the burden lies upon the prosecution to prove its point and since it did not lead any other evidence from its side to rebut the defence version based on the above defence evidence, the version of AO should be accepted. There is no force in this contention. It may be noted here that Section 13(1)(e) of the Act speaks of assets or properties not only possessed by a public servant, but also possessed by anybody on his behalf and even in such a case the public servant has to satisfactorily account for the said properties. Thus according to Section 13(1)(e), in a case relating to charge of disproportionate wealth, the burden lies upon the public servant himself and this burden will be more upon him when the property in question is possessed or owned by his wife. 19. In the present case, it was not the defence of the AO that his wife Satyavathi was separately living and in fact both of them were living together and she had no independent source of income as held by the trial court. In such a case, it was the duty of the AO to show convincingly that he had nothing to do with item-1 of the assets. On evidence it can be safely concluded that the AO failed to discharge the burden cast upon him by Section 13(1)(e) of the Act. In fact this legal position holds good even with regard to items 2, 3 and 8 of the assets as will be presently seen. Accordingly, the conclusion of trial court on item-1 including its valuation is confirmed. 20. That takes me to item 2 of the assets which is again another house in Sanjeeva Reddy Nagar colony of Hyderabad which also stands in the name of Satyavathi. The plea of the AO was that this house was purchased by Satyavathi only for Rs.70,000/- on 10.12.1985 initially under an agreement of sale from D.W.3- M.Purnachandra Rao a retired Director of Animal Husbandry, but obtained Ex.P.12 registered sale deed on 28.04.1992. The Sub- Registrar concerned fixed the value of this house on the date of Ex.P.12 at Rs.2,83,824/- and levied stamp duty accordingly and therefore the prosecution valued the said item accordingly. The question is whether this item should be valued at Rs.70,000/- as pleaded by the defence or at Rs.2,83,824/- as pleaded by the prosecution. The trial court accepted the prosecution version. 21. The AO examined D.W.3-Purnachandra Rao to show that he sold the house in 1985 itself for Rs.70,000/- and gave possession of it to Satyavathi in that year itself and later on Satyavathi has also let out the said house to some concerns and used to get rents. D.W.15-D.Srinivasa Rao and D.W.12-M.V.V.Srinivasa Rao were examined as the officials of the companies to whom the said house is said to have been let out to show that Satyavathi got possession of it in 1985 itself. The trial court disbelieved their version and I think rightly, for the following reasons. 22. It is true that in Ex.P.12-sale deed the sale consideration is mentioned as Rs.70,000/- and further a mention is also made that the house was purchased by her pursuant to an earlier agreement of sale but the date of that agreement is not mentioned. Added to this, it is mentioned in Ex.P.12-sale deed that the vendor himself acquired title or right to the said house by virtue of a registered document No.5233 of 1988 of book-I and of D.R.R.O., Hyderabad and the registration date of the said document itself is 19.12.1988. Now if the vendor himself got the right to the said house on 19.12.1988, the question of his parting with the house in 1985 for Rs.70,000/- does not arise. The learned counsel for the AO could not explain the above aspect. This apart, Satyavathi is described as a house wife in this Ex.P.12-sale deed also. 23. It may then be noted that D.Ws.12 and 15 no doubt stated that they were the former officials of two companies to which the above house is said to have been let out by Satyavathi in 1985 or 1986 or for sometime subsequently also. They could not file any house rent receipts said to have been issued by Satyavathi or other records to prove the tenancies. The defence did not choose to examine any of the present officials of the two companies mentioned by AO to prove the tenancies. 24. The learned counsel for the AO pointed out that the trial court made a comment about the sale agreement dated 10.11.1985 pertaining to this house and the opinion of the District Registrar concerned that the Rs.5/- denomination stamp paper of serial No.18757 dated 10.11.1985 marked as Ex.P.102 was not sold at all on 8.11.1985 and that the said agreement is therefore not reliable is not justified. His contention is that since the Registrar was not examined, the trial court should not have reached that conclusion. The District Registrar has addressed a letter to the above effect to the Investigating Officer and therefore it was marked through him. It should however be noted that the recital in Ex.P.12-sale deed does not contain a mention about the said agreement of sale and added to that there is a recital in Ex.P.12- sale deed that the vendor thereunder himself got right over the said house through a registered document dated 19.12.1988 and this is already mentioned. The prosecution can be said to have discharged its burden on the above aspect by the recitals in Ex.P.12-sale deed. Thus it was for the defence to explain about the sale agreement dated 10.11.1985 and having failed to establish its case in that behalf it is not open for the defence to comment that the concerned District Registrar was not examined with regard to the sale of stamp for the agreement of sale. 25. The AO did not lead any evidence to satisfactorily prove the purchase of this house by Satyavathi for Rs.70,000/- and in the circumstances as held by the trial court it has to be concluded that the AO himself acquired it in the name of Satyavathi in 1992 for Rs.2,83,824/- which is mentioned in the sale deed. 26. Then turning to item 3 of the assets, this is a flat bearing No.202, situated in Nature Nest Apartments, Ameerpet, Hyderabad. Its value has been given as Rs.3,70,000/- by the prosecution. The prosecution version is that the AO has acquired this flat for Rs.3,70,000/- in the year 1992. P.W.11-C.Sudhakar is the then Managing Director of the builder firm M/s.Chakilam Associates which constructed the above apartment/complex. His version shows that the AO booked this flat and paid a total amount of Rs.3,70,000/-. All the relevant documents including Exs.P.38 and 39 and the evidence of P.W.11 have been discussed by the trial court. In fact no dispute has been raised by the AO regarding the acquisition of this flat for Rs.3,70,000/-. 27. The plea of the AO however was that the above flat was initially let out to one Chandrasekhar and thereupon he sold the said flat to the Chandrasekhar. P.W.11 mentioned about the sale and his version is that the AO informed him about the sale and that the Chandrasekhar also paid Rs.70,000/- to their firm by way of some balance amount or extra amount. P.W.11 however stated that his firm has not registered the flat in favour of the AO or his wife Satyavathi. The evidence of P.W.11 also does not disclose that they registered the flat in favour of Chandrasekhar. In the face of the above evidence, it was the duty of the AO to examine the said Chandrasekhar to speak about the sale of the flat to him. Further the AO also did not explain