THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.223, 429, 592, 593, 597, 621, 622, 623, 624, 625 and 626 of 2002 DATED:30.08.2011 BETWEEN : B.Shanker Rao & others .. Appellants and The State of A.P. & others ..Respondents THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.223, 429, 592, 593, 597, 621, 622, 623, 624, 625 and 626 of 2002 COMMON JUDGMENT : Since the judgment under challenge in all these appeals is one and same, they are being disposed of by this common judgment. All these appeals are filed being aggrieved by the common judgment dated 28.02.2002 rendered in Calendar Case No.15 of 1996 and Crl.M.P.Nos.49 of 1994 to 58 of 1994 by the learned Principal Special Judge for SPE & ACB Cases at Hyderabad. Brief facts of the Prosecution case are that: The accused officer (for short ‘AO’), who is the appellant in Crl.A.No.223 of 2002, joined in Government service as Sub-Inspector of Excise on 01.06.1966 and was promoted as Inspector on 31.07.1976, as Assistant Excise Superintendent on 24.07.1983 and as Excise Superintendent on 20.04.1987. He worked s Excise Superintendent, Medak District, till 28.12.1993. On credible information that while discharging his duties as a public servant, AO acquired assets disproportionate to his known sources of income in the form of movable and immovable properties, a case in crime No.16/ACB/Nizamabad/93 was registered against him on 14.12.1993 and simultaneously searches were conducted in his house at Hyderabad and Medak. The searches revealed that the AO was in possession of the following assets worth of Rs.29,67,851-72 ps. as on 14.12.1993: ANNEXURE – I Abstract of Assets : 1) Net cash found in H.No.4-1-677, Jambagh, Rs. 21,77,296- 00 Hyderabadon 14.12.1993 2) Net cash found in Govt. cash chest in the Rs. 79,110- 00 O/o.The Excise Supdt.Medak at Sangareddy un-accounted for on 14.12.93 3) Net cash found on person of AO Rs. 2,490-00 4) Bank balances Rs. 1,61,738-97 5) Reinvestment Plan Deposit receipts of Rs. 79,000-00 Indian Bank, Putlibowli Br. held in the name of AO & his family members 6) Post office savings A/c.No.225757 in Rs. 571-75 Begum Bazar held in the name of AO 7) National Savings Certificates in f/o AO Rs. 25,000-00 8) Contributions to LIC policies in f/o AO Rs. 35,024-00 9) Block 31 Flat 4 MIGH Baghlingampalli, Rs. 75,000-00 Hyderabad 10) Purchase of H.No.12-1-5, Sitarambagh, Rs. 20,012-00 Hyderabad 11) Purchase of H.No.14-2-34, Goshamahal, Rs. 58,541- 00 Hyderabad in the name of B.V.Raj S/o.A.O. 12) Purchase of Hut No.11-60, Gaddiannaram, Rs. 1,115- 00 Hyd. in the name of mother of AO 13) Purchase of plot No.303, Vinayak nagar, Rs. 913- 00 R.R. District in the name of AO’s wife 14) Purchase of gold jewellery Rs. 1,12,320- 00 15) Purchase of Fiat car No.ADR 612 in f/o. Rs. 28,000-00 AO’s wife 16) Purchase of Scooter No.ADR 5001 in the Rs. 5,000-00 name of AO’s brother 17) Earnest money deposit in Housing Board Rs. 1,000- 00 18) Household articles found at the house Rs. 85,470-00 of AO at Hyderabad 19) Household articles found at AO’s quarter Rs. 18,710- 00 at Sangareddy 20) Deposit made for Telephone No.43179 Rs. 1,000-00 by AO ------------------------ Total : Rs. 29,67,851-72 ----------------------- The income of the AO from known sources was assessed at Rs.7,30,470-35 ps. the details of which are as follows: ANNEXURE-II Abstract of Income : 1) Net salary income Rs. 5,27,794-00 2) Bank interests accrued: a) S.B. A/c.No.3883 of Indian Bank Rs. 5,203-37 b) S.B. A/c.No.5890 of Indian Bank Rs. 3,883-25 c) S.B. A/c.No.6702 of Canara Bank Rs. 6,752-92 d) S.B. A/c.No.6763 of Indian Bank Rs. 2-00 e) S.B. A/c.No.3559 of Indian Bank Rs. 21,662-81 f) Post office A/c.No.225757 of Rs. 20-00 Begum bazaar 3) Payment of Survival Benefit towards Rs. 12,500-00 Policy No.640203007 4) Loan on LIC policy No.38180739 Rs. 14,760-00 5) Matured amount of LIC policy Rs. 3,302-00 No.37851039 6) Rental income from Flat 4 Block 31 of Rs. 1,00,100-00 MIGH Baghlingampalli, Hyderabad 7) Rental income from H.No.12-1-5, Rs. 22,550-00 Sitarambagh, Hyderabad 8) Rental income from H.No.13.3.1094/5/1 Rs. 11,940-00 in Ziaguda, Hyderabad -------------------------- Total : Rs. 7,30,470- 35 -------------------------- The total expenditure incurred by the AO was assessed at Rs.5,21,237.75 ps. the details of which are as follows: ANNEXURE - III Abstract of Expenditure : 1) Household expenditure Rs. 3,11,203-00 2) Rentals paid for family members Rs. 32,180- 00 3) Rentals paid by AO at his places Rs. 17,790-00 of postings 4) Electrical charges for H.No.4.1.677 Rs. 6,716-75 Jambagh, Hyderabad 5) Telephone rentals & charges Rs. 15,406-80 6) Membership & charges of Hyderabad Rs. 3,565-00 Boats Club 7) Expenditure towards Credit Card of Rs. 200-00 Vijaya Bank 8) Educational expenditure of AO and Rs. 1,09,712-00 his four sons 9) Payment of municipal taxes Rs. 1,466-00 10) Weston Radio licence fee Rs. 149- 00 11) Maintenance of Fiat Car ADR 612 Rs. 6,440-00 12) Maintenance of Scooter Rs. 16,410-00 -------------------------- Total : Rs. 5,21,237- 75 ------------------------- The likely savings of the AO after deduction of his expenditure from income came to Rs.2,09,232-60 ps but he was found in possession of assets worth Rs.27,58,619-12 ps. as on 14.12.1993. Thus, the assets of the AO were found disproportionate to his known sources of income. Though ample opportunity was given to the AO to satisfactorily account for the disproportionate assets, he failed to give any reply. The investigation officer after securing various documents by addressing letters to the government and to other private agencies sent final report to the government through the Director General ACB AP. The government of A.P. issued G.O.Ms.No.12 dated 03.01.1996 permitting prosecution of the AO for the offence punishable under the provisions of Corruption Act, 1988. Hence, the charge. AO was examined under Section 239 Cr.P.C. wherein he denied the allegations leveled against him. Charge under Section 13 (1) (e) read with 13 (2) of P.C. Act was framed, read over and explained to AO, to which he pleaded not guilty and claimed for trial. In order to prove its case, Prosecution examined PWs 1 to 10 and marked Exs.P.1 to P.84. On behalf of AO DWs 1 to 23 were examined and Exs.D.1 to D.36 were marked. After closure of Prosecution evidence, AO was examined under Section 313 Cr.P.C. wherein he denied the incriminating evidence put to him. AO also filed a written statement. Further, Crl.M.P.Nos.49 to 58 of 1994 were filed by the respective petitioners claiming refund of their respective amounts out of the cash seized from the house of the AO. After evaluating the entire evidence both oral and documentary available on record, the learned trial Judge rendered the impugned judgment convicting the AO as stated above and also dismissing the miscellaneous petitions filed for refund of the amounts seized from the house of the AO. The evidence of P.W.1, the Senior Assistant, is that on 10.12.1993 AO called him to his chambers and handed over a sum of Rs.79,110/- and asked him to keep the same in safe custody. He placed the same in the Cash Chest of the Office. On 14.12.1993 ACB officers conducted search in the offence room of the AO and also searched the cash chest of the office. He informed the ACB officers that cash of Rs.79,110/- available in the Cash Chest belongs to A.O. A.O. did not inform him any particulars about the said amount. One Balaraju, Sub-Inspector Excise, died about two months prior to the date of raid. They did not pool up any money from their staff or from any other persons to help the family members of said Balaraju. The salary pass book of AO from the year 1983 onwards is being maintained by this witness. Ex.P.1 is the personal note book of A.O. containing salary particulars and Ex.P.2 is personal note book of A.O. The evidence of P.W.2, the Assistant District Registrar, goes to show that the licence of one Stamp Vendor by name Vishal Ahmed Naqvi was cancelled vide Ex.P.4 proceedings for not maintaining the required records, not selling at the authorized place etc. The said stamp vendor was asked to surrender the original licence and register by 31.08.1993 and accordingly he surrendered the stamps, registers for the year 1993 with a letter dated 30.09.1993. According to the Sales Register of the above said stamp vendor for the year 1993 he has maintained the Register upto 22.06.1993 ending with serial No.2171. According to this witness, there was no entry in Ex.P.8, the sale register of Non-judicial stamps for the year 1993, showing the sale of stamp papers bearing Nos.4113 and 4114 with dates 06.04.1993 and the said sale register is ending upto 22.06.1993 only. P.W.3 K.Purushotham Reddy, independent witness, deposed that on 14.12.1993 he along with one Sekhar Reddy, Rama Goud- complainant, and the DSP ACB with his staff went in a jeep to Sangareddy to the office of the Excise Superintendent wherein a trap was laid and mediators report was drafted and the raid was concluded at about 1 p.m. He further deposed that the Cash Chest available in the chambers of AO was also checked wherein a cash of Rs.1,60,250/- was found. In addition to the above cash, Rs.5,400/- was also found in the table drawer of Accountant by name Vittaiah. According to him, time was given to the Accountant to update the cash book. The Accountant updated the cash and adjusted Rs.42,579.67 ps and a difference of Rs.79,110/- was found for which the Accountant informed them that the AO has given him Rs.80,000/- for safe custody. The DSP seized the said amount in their presence and all the details were incorporated in mediators report. P.W.4 also deposed in the same lines of P.W.3. He further deposed that on the date of raid between 3 p.m. to 6.00 p.m. they also searched the house of one S.A. Paul, Excise Inspector. Further at about 9.30 p.m. they also went to the house of brother of AO by name Kankyalal and enquired with him and observatory proceedings were drafted. P.W.5 is the independent witness participated in the search conducted on 14.12.1993 at house of AO situated in Hyderabad. He deposed all the details about the manner in which the raid was taken place and the articles and cash found during the search. He further deposed that the gold items were returned to the wife of the AO at the time of concluding the inventory. The house search and drafting of inventory and search list was commenced at about 12.30 p.m. and concluded by 8.45 p.m. When they were concluding the inventory report, AO came from Sangareddy and the ACB officers enquired him about the cash of Rs.21,77,000/- and odd which was found in the raid. As the AO did not give any explanation, the DSP, ACB, seized the same. Ex.P.12 is the search list written by the Inspector, ACB, and Ex.P.13 is the inventory report written by this witness. According to this witness, on the next day i.e. on 15.12.1993 again he was taken by the ACB officers for searching the house owned by the AO at Gosha Mahal, but nothing incriminating was found there. Ex.P.14 is the inventory proceedings written by him at the house situated in Gosha Mahal. P.W.6 deposed that on 14.12.1993 at about 1 or 1.15 p.m. ACB officers took him to the house of the AO at PWD Quarters, Sangareddy, where room-wise inventory was made and the inventory was concluded by 2.00 p.m. Ex.P.15 is the inventory proceedings written by the Inspector, ACB, and signed by his witness. P.Ws.7, 8 and 10 are the officers, who participated in the searches made on 14.12.1993 and they deposed the manner in which the raids were conducted and the inventory seized by them during such raids. P.W.9 deposed about the sanction accorded to prosecute the AO in a Court of law for the offence under Sections 13 (2) read with 13 (1) (e) of P.C. Act. In order to rebut the above said prosecution evidence, AO has examined DWs 1 to 23. DWs 1 to 7 and 9 were examined by the defence to prove the fact that in order to help the wife and children of one Balraj, who died on 01.12.1993 while working as Excise S.I., contributions were collected from various staff members of Excise Department and also some contractors and those contributions were kept with P.W.1, Accountant in Excise Department. Some of these witnesses also stated that by way of contributions the total amount accumulated is about Rs.80,000/- as informed by P.W.1. DWs 8, 10 to 12 were examined by the defence in order to prove that the wife of AO received certain amounts towards rents. DW.13 deposed that AO and his brother Kannaiahlal offered him to sell their mother’s house situated at Seetarambagh and he agreed to purchase the same for Rs.4,25,000/- and paid token advance of Rs.601/- on 01.12.1993. He further deposed that he went to Afzalgunj and purchased two non-judicial stamps of Rs.50/- each from the stamp vendor Vishal Ahmed Naqvi for preparing agreement of sale and on 05.12.1993 he paid advance of Rs.3,25,000/- to the AO and himself, AO and his brother signed on agreement of sale. He also deposed that since the original documents pertaining to the said house and the advance amount paid by him were seized by the ACB officials, AO promised him either to register the house in his name after getting the original documents or to return the advance amount taken from him after the same is received by him from the Court. D.W.14, who is the immediate neighbour of the AO house at Jambagh, deposed that on 14.12.1993 at about 12.30 noon ACB officials came to the house of AO and sought his help to search the house of AO. At about 4.45 p.m. the ACB officials came out of the house of AO with suit cases and told him that total cash found in the house of AO came to Rs.21,77,296/-. By the time they completed the search it was about 8.30 p.m. and when they were about to leave, AO came and he stated that it is an accounted money belonging to Lathur Earth Quake victims, who are his relatives. He also deposed about the agreement of sale entered into between Jaipal-D.W.13 and the AO and this witness himself drafted the said agreement and also signed as witness to the said agreement along with one Bhushan. This witness further stated that on 06.12.1993 the father-in-law of AO by name Vanam Rao came to the house of AO at about 6.30 or 7.00 p.m. along with 8 to 10 persons in a Maruthi Van and stayed in the house of AO for about 45 mnts. and went away. D.W.15 deposed that he is the tenant of house bearing Municipal No.4-1-677, Jambagh, Hyderabad. In the year 1985 AO approached him and requested him to permit him (AO) to stay in the said house to which he permitted on an understanding that he should pay the electricity and water charges. He also stated that in the said room, he kept certain articles belonging to him and he handed over those articles to AO under receipt. DWs 16 to 23 are the residents of Lathur. These witnesses were examined by the defence in order to prove that these witnesses kept certain amounts with the wife of AO for safe custody in view of earth quake in Lathur. D.W.23 is none other than the father of the wife of AO. DWs 16 to 22 also stated that initially the wife of AO refused to take the amounts for safe custody, but at the request of DW.23 she took the amounts and issued receipts to that effect. These witnesses also stated that on coming to know about the raids in the house of AO by the ACB officials, they came down to Hyderabad and enquired with AO and contacted the ACB DSP by name Sri Sai Baba over telephone with a request to return their amounts for which the DSP stated that the amount was already deposited in the Court and advised them to approach the Court for return of amounts and accordingly they filed petitions before the Court seeking return of amounts. On the basis of the above said evidence adduced by both the Prosecution and AO and after evaluating the same in detail, the learned trial Judge held that the disproportionate income of AO is to the tune of Rs.24,63,364/-. The learned trial Judge prepared Annexure-I after admitting some of the assets shown by the Prosecution and rejecting some of them to be treated as assets of the AO. Further, he modified Annexure-II by calculating the income of the AO from known sources of income and likewise modifying Annexure- III, the statement showing the expenditure incurred by the AO, which are listed below: THE ABSTRACT OF ASSETS OF THE AO AS DETERMINED BY THE LEARNED TRIAL JUDGE 1) Net cash found in H.No.4-1-677, Jambagh, Rs. 21,77,296- 00 Hyderabadon 14.12.1993 2) Net cash found in Govt. cash chest in the Rs. 79,110- 00 O/o.The Excise Supdt.Medak at Sangareddy un-accounted for on 14.12.93 3) Net cash found on person of AO Rs. 2,940-00 4) Bank balances Rs. 1,61,738-97 5) Reinvestment Plan Deposit receipts of Rs. 79,000-00 Indian Bank, Putlibowli Br. held in the name of AO & his family members 6) Post office savings A/c.No.225757 in Rs. 571- 75 Begum Bazar held in the name of AO 7) National Savings Certificates in f/o AO Rs. 25,000-00 8) Contributions to LIC policies in f/o AO Rs. ---- (deleted) to be added in the expenditure schedule 9) Flat 4 MIG Phase II Plot No.31 Rs. 75,000-00 Baghlingampalli, Hyderabad 10) Purchase of H.No.12-1-5, Sitarambagh, Rs. ---- Hyderabad (deleted) 11) Purchase of H.No.14-2-34, Goshamahal, Rs. 58,541- 00 Hyderabad in the name of B.V.Raj S/o.A.O. 12) Purchase of Hut No.11-60, Gaddiannaram, Rs. --- Hyd. in the name of mother of AO (deleted) 13) Purchase of plot No.303, Vinayak nagar, Rs. 913-00 R.R. District in the name of AO’s wife 14) Purchase of gold jewellery (modified) Rs. 50,000-00 15) Purchase of Fiat car No.ADR 612 in f/o. Rs. 28,000-00 AO’s wife 16) Purchase of Scooter No.ADR 5001 in the Rs. ---- name of AO’s brother 17) Earnest money deposit in Housing Board Rs. 1,000- 00 18) Household articles found at the house Rs. 50,000-00 of AO at Hyderabad (modified) 19) Household articles found at AO’s quarter Rs. 18,710-00 at Sangareddy 20) Deposit made for Telephone No.43179 Rs. 1,000- 00 by AO ------------------------ Total : Rs. 28,08,820-72 ------------------------ THE ABSTRACT OF INCOME OF A.O. AS DETERMINED BY THE LEARNED TRIAL JUDGE Abstract of Income : 1) Net salary income Rs. 6,08,488-00 2) Bank interests Rs. 37,524-35 3) Payment of Survival benefit under Rs. 12,500-00 LIC policy No.640203007 4) Loan on LIC policies Rs. 23,200-00 5) Maturity amount on LIC policy Rs. 3,302-00 6) Rental income on MIG flat of Rs. 1,00,100-00 7) Rental income from house in Ziaguda Rs. 11,940-00 Bagh Lingampalli -------------------------- Total : Rs. 7,97,054- 35 -------------------------- THE ABSTRACT OF EXPENDITURE OF THE AO AS DETERMINED BY THE LEARNED TRIAL JUDGE Abstract of Expenditure : 1) Household expenditure Rs. 2,50,000-00 2) Rentals paid by family members of AO Rs. 32,180-00 3) Rentals paid by AO at his places Rs. 15,000-00 of postings 4) Telephone rental and charges Rs. 15,406-80 5) Hyderabad Boats Club Membership Rs. 3,565-00 charges 6) Credit Card charges Rs. 200-00 7) Educational expenditure of AO’s sons Rs. 87,210-00 his four sons 8) Car maintenance charges Rs. 6,440-00 9) Premium paid to LIC policies Rs. 41,596-36 -------------------------- Total : Rs. 4,51,598- 16 ------------------------- This Court carefully considered the evidence adduced by both sides and also heard the arguments of either side. DETERMINATION OF ASSETS OF THE AO Item No.1: Net cash found in H.No.4-1-677, Jambagh, Hyderabad, as on 14-12-1993 to the tune of Rs.21,77,296/-: Learned counsel for the AO contends that the cash of Rs.21,77,296/- recovered from the house of the AO cannot be included as asset of the AO since the same was received by his wife from her relatives, who are the victims of earth quake in Lathur prior to the date of search. Further, it is argued that even in Ex.P.13, the inventory report, the mediator also recorded the said amount as ‘an accounted money’. The learned counsel for the appellants argued that when it is recorded by the mediator as per the version of the wife of AO, the same cannot be treated as an asset of the AO. On perusal of Ex.P.13 it is true that the said amount was recorded as ‘an accounted money’, but the witness to the said mediator report i.e. P.W.5 deposed before the Court and clarified that the said amount is ‘unaccounted money’ but not ‘an account money’. Considering this evidence, the learned trial Judge proceeded in this case taking into consideration the said words as ‘unaccounted money’. Learned counsel for the appellants wants to take advantage of the mistake committed by the mediator while recording the said amount as ‘an accounted money’ instead of ‘unaccounted money’. Even assuming for a moment that it is stated by the wife of the AO that it is an accounted money, that itself cannot be an explanation to the huge money recovered by the prosecution to prove that the said amount does not belong to AO. If the said amount is taken into account as ‘an accounted money’ it is the duty of the AO to prove that the said amount was accounted before the Statutory Authority. In the absence of the same, the version of the wife of AO that it is ‘an accounted money’ cannot be accepted. Further, in support of his contention in this regard the AO examined DWs 16 to 23, who in one voice stated before the Court that they came to the house of the AO after the earthquake occurred in their place i.e. Lathur and they handed over the said amounts to the wife of AO for safe custody being afraid to have the same in their place. It is further stated by these witnesses that the wife of AO was hesitant to accept the same, but on persuasion of her father i.e. DW.23 she accepted the money. But, in their evidence, these witnesses have stated that the wife of AO gave receipts for the amounts received by her. When the wife of AO was hesitant to receive the money, the question of issuance of receipts by her does not arise. Further, the said defence is feeble in nature and also improbable. AO got filed applications before the trial Court through the said witnesses seeking return of amount by invoking provision under Section 451 Cr.P.C. only after lapse of long time. Further, in the instant case, AO was given opportunity to explain about the possession of such a huge amount, for which he has not chosen to given any explanation. As far as petitions filed under Section 451 Cr.P.C. are concerned, it is not necessary that those applications should be filed by the owner of property. Since it is the case of the AO that the said money was received by his wife from her relatives, she being the custodian of the said money ought to have application under Section 451 Cr.P.C. stating the reasons for possessing such huge money. The wife of AO has not even stated the reasons before the investigation officer or the mediators, who prepared mediator report, for which AO submitted the argument that she was ill and she could not able to inform the reasons due to the fact that she does not understand the language known to the investigation officer and to the mediators. But, on perusal of the mediators report it is evident that on information given by the wife of AO regarding the jewellery, which is found in the house during the search, the same was returned to her on the date of search itself. So, the said contention that she could not able to convey the reasons due to language problem is totally unacceptable. Further, said