In the High Court of Judicature at Madras Dated: 19.02.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.1598 of 2008 and M.P.No.1 of 2008 1. Mallika 2. R.Punithakumar ..Appellants ..vs.. 1. State of Tamil Nadu, rep.by Inspector of Police, Vigilance and Anti-Corruption, City Special Unit-I, Chennai-28. 2. G.Ramachandran 3. Selvi Chandrakumari ..Respondents Civil Miscellaneous Appeal filed under Order 41 Rule 96 C.P.C., against the order dated 31.08.2007 made in Crl.O.P.No.2 of 2006 on the file of Chief Judge, Court of Small Causes, Chennai. For Appellants : Mr.G.Thangavel For Respondents : Mr.R.Muthian, G.A., (C.S.) for R1 JUDGMENT This appeal is preferred against the order of the learned Chief Judge, Court of Small Causes, dated 31.08.2007 in Crl.O.P.No.2 of 2006, whereby the interim attachment already ordered was made absolute. 2. The brief facts, which are necessary to dispose the appeal, are as follows: (a) The 1st appellant is the second wife of the 2nd respondent G.Ramachanran. She married the 2nd respondent after the death of his first wife, namely, Kasturi. The 2nd appellant is the son of the 2nd respondent through his first wife Kasthuri and the 3rd respondent is the daughter of the 1st appellant and 2nd respondent. The 2nd respondent joined the Government service on 05.06.1965 as a Temporary Section Writer and worked in various places under various capacities and finally, he worked as a Sub-Registrar during the period from 01.01.1991 to 31.07.2000 at different places. During the said period, he had purchased movable and immovable properties in his name and also in the names of his wife, son and daughter, who are shown as the appellants and the 3rd respondent herein to the tune of Rs.25,31,965.15 for a total disproportionate amount of Rs.44,80,480/-. Since the properties purchased by the 2nd respondent in his name as well as his family members are disproportionate to the known sources of income, based on the orders of the Government in Letter No.6190/H1/99-7 dated 29.05.2000, a detailed enquiry was conducted against the 2nd respondent on the allegation that he misused his official position as Sub-Registrar and amassed wealth in the form of movable and immovable properties in his name and also in the name of his family members, which are disproportionate to the known sources of his income. Since on enquiry, it revealed that there is a prima facie case against the 2nd respondent, a case was registered in Crime No.2/AC/2001/CC-II dated 12.06.2001 under section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 against him. Pursuant to the same, the 2nd respondent was placed under suspension from service. Challenging the same, the 2nd respondent filed a quash petition before the Tamil Nadu State Administrative Tribunal, Chennai, wherein the order of suspension was revoked and he was posted as the Deputy Register. Subsequently, again he was placed under suspension on the date of superannuation on 26.02.2003 as per G.O.(D)40 dated 28.02.2003 AN and after conducting a departmental enquiry, the 2nd respondent was dismissed from service on 27.04.2004. Pending a criminal case in C.C.No.3/2005 on the file of VI Additional Sessions Judge against the 2nd respondent pursuant to the complaint registered on 12.06.2001, the Government passed an order in G.O.Ms.No.59, Commercial Taxes and Registration (H1)Department dated 04.07.2006 in exercise of the powers conferred by sub-section (1) of Section 3 of the Criminal Law (Amendment) Ordinance, 1944, authorising the 1st respondent herein to make an application before the Chief Judge, Small Causes Court, Chennai, for attachment of the properties set out in the Annexure to the said G.O., which are believed to have been procured by means of the said offence committed by the 2nd respondent. In pursuance of the same, the 1st respondent has filed an application under Section 3 read with Section 4 of the Criminal Law (Amendment) Ordinance, 1944, (hereinafter referred to as "Ordinance") for attachment of the properties mentioned in the Annexure to the petition in Crl.O.P.No.2 of 2006 and he has also filed Crl.M.P.No.2701 of 2006 seeking an order of interim attachment. (b) The 1st appellant and the 2nd respondent have filed the separate counters stating that the properties set out in the Annexure were purchased by them from out of their own earnings. Item No.16 of the property in the Annexure was already sold in favour of one Mohanraj, son of Chandran. The 1st appellant is an income tax assessee and she was deriving income from the properties which have been clearly mentioned in the income tax account. (c) Before the trial court, the 2nd appellant as well as the 3rd respondent were set ex parte. On the side of the 1st respondent, a proof affidavit was filed by the Inspector of Police and the G.O.Ms.No.59, Commercial Taxes and Registration (H1) Department dated 04.07.2006 was marked as Ex.P-1. Neither any witness was examined nor any document was marked on the side of the 2nd appellant. After considering the entire materials, the trial court allowed the petition by making absolute the order of interim attachment already made in Crl.M.P.No.2701 of 2006. Aggrieved over the same, the wife and son of the 2nd respondent have come forward with the present appeal. 3. Learned counsel for the appellants contended that the appellants were not the accused in the case filed against the 2nd respondent in C.C.No.3 of 2005 and hence, the properties cannot be attached in a separate proceeding. Moreover, the criminal case is still pending before the VI Additional Sessions Judge, Chennai. Unless the guilt is proved as against the 2nd respondent, neither the properties of the 2nd respondent nor the properties of the appellants can be attached. Moreover, the properties by the appellants were purchased in their own name out of their own earnings. The 1st appellant is also an income tax assessee. Under such circumstances, based on the criminal case filed against the 2nd respondent, the properties of the appellants cannot be attached. Moreover, the authority has no right under law to attach the properties of the appellants when they are not the accused in the said criminal case. Further, no opportunity was given to the appellants and without hearing the legitimate grievance of the appellants, the competent authority had issued the G.O. Under such circumstances, the attachment order passed by the trial court was not legally sustainable and as such, the same has to be set aside. In support of the same, the learned counsel for the appellants has also relied on the judgments reported in 2006 (1) Crimes 68 (SC) (D.S.P., CHENNAI ..vs.. K.INBASAGARAN), (2007) 1 MLJ (Crl.) 100 (STATE ..vs.. K.PONMUDI) and (2007) 1 MLJ (Crl.) 86 (G.MALLIGA ..vs.. STATE). 4. Per contra, Mr.R.Muthian, the learned Government Advocate would submit that in the event of conviction of the accused, the money or property should be available for immediate restoration to the Government. Under such circumstances, the contention made by the learned counsel for the appellants that unless the guilt is proved beyond any reasonable doubt, the properties cannot be attached, is not legally sustainable. In fact, the Ordinance empowers the competent authority to attach the property on satisfaction of a prima facie case against the 2nd respondent. Moreover, all the properties were accumulated between 1991 and 2000, during which, the 2nd respondent had worked as the Sub-Registrar in various places. The properties in the name of appellant were also purchased only during the period between 1991 to 2000. Under such circumstances, it cannot be said that the properties of the appellants cannot be attached. Thus, the learned Government Advocate has prayed that the order of the trial court has to be sustained. 5. Heard the learned counsel for both sides and perused the materials. 6. Keeping the submissions made by the learned learned counsel on either side in mind, it could be seen that the grounds raised by the learned counsel for the appellants are two folds, namely, (1) unless the charge levelled against the 2nd respondent is proved beyond reasonable doubt in the manner known to law, the properties cannot be attached under the Criminal Law (Amendment) Ordinance, 1944; (2) the independent properties of the wife and the son, namely, the appellants herein, cannot be clubbed along with the properties of the 2nd respondent and attached when the appellants are not the accused in the criminal case. 7. Now, it is to be seen, whether the judgments relied upon by the learned counsel for the appellants can be made applicable to the facts of the case on hand or not ? In 2006 (1) Crime 68 (SC), the facts of the case would show that the husband and wife were living together and the wife was running three concerns and the accused had provided satisfactory explanation that all the money belonged to the wife and the income tax department had assessed the income in her name; initial burden was to be discharged by the prosecution; and under such circumstances, the Court has come to the conclusion that it was difficult to segregate how much of wealth belonged to the husband and how much belonged to the wife and thus, it has been held that the accused cannot be held responsible under the Prevention of Corruption Act. 8. In 2007(1) MLJ (Crl.)100, it has been held that clubbing of properties of the other accused is absolutely erroneous and the accused cannot be asked to explain the sources of income of others with reference to the properties standing in their names by which the accused has no claim or control; thus, the Court has dismissed the revision petition filed by the State holding that there is no concrete materials available to frame charges against the accused and the expenditures are within the known sources of income of the individual accused as found by the trial court. 9. In another decision relied upon by the learned counsel for the appellants reported in (2007)1 MLJ (Crl.)86, it has been held that the method of investigation adopted by the prosecution to establish the disproportionate known sources of income is absolutely erroneous; the accused cannot be asked to explain the sources of income of others with reference to the properties standing in their names over which the accused has no claim or control; thus, the Court has come to the conslusion that the prosecution has miserably failed to prove the charge beyond reasonable doubt and guilt of the accused. 10. The said judgments relied on by the learned counsel for the appellants would show that those judgments were delivered while dealing with the issues involved in the main cases and they did not speak about the attachment of the properties under section 3 read with 4 of Criminal Law (Amendment) Ordinance. Here, the question that has arisen in view of the submissions made by the learned counsel for the appellants is that, whether the properties could be attached before the guilt is proved as against the 2nd respondent? The object of attachment is to safeguard the properties and in the event of conviction, the properties should be available for restoration to the Government. Section 3 of the Ordinance empowers the competent authority to make an application for attachment of the property. Section 4 of the Ordinance defines that on receipt of an application under section 3, the District Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exists a prima facie case against whom the application is made, can pass an order of interim attachment of the property. Section 5 states that if no cause is shown and no objections are made under section 4 or before the specified date, the District Judge shall forthwith pass an order making the ad-interim order of attachment absolute. 11. A combined reading of sections 3 to 5 would show that the competent authority need not wait till the completion of the trial. If the submissions of the learned counsel for the appellants is accepted, it would defeat the very object of attachment because ultimately, if the trial ends in conviction, the property must be available for restoration with the Government. Moreover, as section 3 does not prevent the attachment of the properties standing in the name of the family members, if the competent authority has come to a conclusion that those properties were purchased out of the disproportionate known sources of income of the person against whom the charges were levelled, those properties can be attached and if the owners of the properties establish that those properties are their independent properties and were purchased by them out of their own income, then their objection could be considered. But, in the instant case, though a petition was filed that the properties were purchased by the 1st appellant in her name by her own sources of income, absolutely, no documentary evidence was produced to substantiate the said contention. Similarly, though it has been stated in the counter filed by the 1st appellant that she is an income tax assessee, no document was filed to substantiate the said contention. It is a well settled principle of law that mere averment is not an evidence unless the same is proved in the manner known to law. In the present case, the appellants have miserably failed to prove that the properties were purchased in their names from and out of their known sources. Moreover, on going through the description of the properties set out in the Annexure to the said G.O., I find that all the properties were purchased between 1991 and 2000 in the name of the 2nd appellant, who was studying, during which time the 2nd respondent was working as the Sub-Registrar in different parts of Tamil Nadu. Therefore, I am not inclined to accept the submissions made by the learned counsel for the appellant to set aside the impugned order. For the reasons stated above, the civil miscellaneous appeal fails and is dismissed. Consequently, connected M.P.is closed. gl To The Registrar, Court of Small Causes, Madras