IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1182 of 2004 DATE:15.06.2011 Between: P.Anjaiah …… Appellant And State – rep. by A.C.B …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1182 of 2004 JUDGMENT : The accused/appellant was working as Sub-Inspector of Excise at Hyderabad. The Additional Special Judge for S.P.E and A.C.B cases, Hyderabad by judgment dated 26.03.2004 in C.C. No.4 of 1997 convicted the accused for the offence under Section 13(1)(e)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced him to rigorous imprisonment for two years and fine of Rs.5,000/-. Questioning the same, this appeal is filed by the accused. 2) The accused joined in service as lower division clerk in the Department on 13.10.1972 and he was promoted as Sub- Inspector of Excise on 02.08.1976. The accused married his first wife in June, 1966 even prior to he joining in service. They have one son born in the year 1970, one daughter born on 11.08.1973 and another son born on 17.02.1977. Subsequent to getting promotion as Sub-Inspector of Excise, the accused married P.W-41 namely Vijaya as his second wife on 02.12.1979. The accused has one son through his second wife. The accused and P.W-41 divorced from each other by executing mutual consent letter or deed on 26.08.1992. Searches in this case in the properties of the accused and his family members took place on 18.11.1992. Therefore, the prosecution took the check period as 13.10.1972 to 18.11.1992. 3) According to the prosecution, the accused had total income of Rs.7,14,795/- and expenditure of Rs.5,05,849/- and net savings of Rs.2,08,946/- during the above check period. The lower Court found that the accused was having total income of Rs.8,27,934/- and total expenditure of Rs.4,36,150/- and net savings of Rs.3,91,784/- during the check period. According to the prosecution, the accused was possessing 74 items of assets mentioned in the charge sheet worth Rs.16,19,597/-; whereas the lower Court found that accused was possessing assets worth Rs.14,50,886/-. After deducting the savings, the prosecution alleged that the accused was having assets disproportionate to his income to the extent of Rs.14,10,651/-. The lower Court after deducting savings of the accused, found that he was possessing assets worth Rs.10,59,102/- which are disproportionate to his income. The lower Court also gave 10% margin of his income and deducted Rs.82,793/- from the above figure and ultimately came to the conclusion that value of disproportionate assets held by the accused was Rs.9,76,309/-. Therefore, the lower Court found the accused guilty of the charge under Section 13(2)(e)/13(2) of the Act. 4) In this appeal the senior counsel appearing for the appellant contended that 33 items out of 74 items belonged to P.W-41 and their total value is Rs.10,06,255/- and that if value of the said items are deducted from value of the assets found to have been held by the accused, then there is no holding of any assets by the accused disproportionate to his income. The items which are stated to be that of P.W-41 are item Nos.2 to 5, 10, 19, 20, 21, 23, 24, 25, 31, 34, 36, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, 58, 59, 62, 63, 67, 68, 70, 71, 72 and 73. It is further contended for the appellant that consideration for purchase of item No.1 was provided by D.W-1 who is sister of the accused to the accused and that therefore this item also should be deleted from the assets held by the accused. It is nextly contended that the lower Court erred in placing reliance on the correspondence of third parties with the investigating officer/P.W-43 as if the said correspondence is substantive evidence even though the persons who addressed the said letters were not examined in the lower Court. 5) At the outset, it may be noted that second wife of the accused who is examined as P.W-41 deposed that she purchased only 2 or 3 share certificates in her name and she lost the same and that she did not purchase any other share certificates and that she does not know who purchased the same in her name. Share certificates or debenture certificates standing in the name of P.W-41 were found in the house occupied by the accused along with his first wife i.e., item No.1. There is no cross-examination of P.W-41 on this aspect of the case. The accused did not examine himself as a witness in this case to explain the share certificates and debentures standing in the name of his second wife P.W-41 and found in his house. It is nobody’s case that any other person than the accused and P.W- 41 purchased those share certificates and debentures in the name of P.W-41. Therefore, the lower Court is justified in including value of those share certificates etc., in the assets held by the accused. 6) Item No.10 of the assets is Maruthi 800 car standing in the name of P.W-41. On the date of search, this car was found parked at item No.1 which is the residential flat of the accused along with his first wife’s family. Even by the date of search on 18.11.1992, differences arose between the accused and P.W-41 and they became separated by executing a mutual divorce document on 26.08.1992 itself. P.W-41 also filed O.S. No.955 of 1992 against the accused in respect of certain properties registered in her name. Ex.D-6 plaint in O.S. No.955 of 1992 on the file of Principal District Munsif, East and North, Rangareddy District shows that the said suit was instituted on 11.09.1992 itself. In spite of separation between P.W-41 and the accused and in spite of bitter feelings resulting in civil litigation between them, Maruthi 800 car bearing No.AP 11A 9549 was found at item No.1 which is the residential house of the accused and not in item No.5 where P.W-41 was residing. 7) P.W-41 in her examination-in-chief deposed that no share certificates were seized from her house at the time of search. She further says that she does not know about the car purchased in her name by the accused. In cross-examination, P.W-41 admitted the suggestion of the defence counsel that she purchased Maruthi Car bearing No.AP 11A 9549 with her self- earnings. She did not file any income tax returns to show that she had declared to the income tax authorities during the relevant year about her purchase of the car. 8) P.W-11 is the person who booked car covered by item No.10 with the dealer. He addressed Ex.P-16 letter to the investigating officer/P.W-43 in this regard along with its annexures Exs.P-16(a) to Ex.P-16(c). P.W-11 speaks to contents of the said documents. It is the evidence of P.W-11 that he was allotted Maruthi 800 CC car by the dealer viz., Mithra Agencies, Himayath Nagar, Hyderabad and that the accused approached him to sell his car which was booked by him in December, 1990 with the dealer and that he agreed to sell the car to the accused and that he sold his car for Rs.1,26,000/- and odd as there was increase of price of the car by the date of delivery of the vehicle to him. It is his evidence that the accused paid Rs.50,000/- by way of demand draft and paid Rs.70,000/- and odd by cash and that the vehicle was handed over to the accused directly from the show room and that he (P.W-11) gave delivery letter of the said vehicle in the show room itself to the accused. In cross-examination P.W-11 deposed that he had no friendship with the accused prior to the transaction. As per Ex.P- 16(a), copy of the demand draft, the demand draft was obtained by one K.Y.Reddy, director of Trinethra Super Bazar, Hyderabad for Rs.50,000/-. P.W-41 deposed that K.Yalamanda Reddy is her cousin. It is not P.W-41’s evidence that the said Yalamanda Reddy advanced any amount to her for purchase of the car. Even though P.W-41 filed civil suit against the accused in respect of immovable property, no such civil litigation was started by P.W-41 against the accused in respect of the movable properties including the car, share certificates/debentures etc., In those circumstances, it cannot be said that the lower Court went wrong in including the car covered by item No.10 in the assets held by the accused. 9) The main controversial items are item Nos.2 to 5 of the assets appended to the charge sheet. Originally item No.2 was purchased as A.C.sheet roofed house at Dilsukhnagar, Hyderabad on 20.09.1985 and after demolition of A.C.sheet roofed house located in that property, gradually item Nos.3 to 5 were constructed in the same site covered by item No.2. Item No.5 consists of a double storied building located by the site of item Nos.3 and 4 in the same site. The registered sale deed dated 20.09.1985, copy of which is marked as Ex.P-10, is standing in the name of P.W-41. It is in respect of the property covered by items 2 to 5 P.W-41 filed O.S. No.955 of 1992 against the accused subsequent to their separation. The said suit was filed for perpetual injunction restraining the accused from interfering with her peaceful possession and enjoyment of the suit property therein. Even though P.W-41 claims that the said suit was decreed, no document was filed to prove the said fact. P.W-43 expressed ignorance about decreeing of the said suit. It is nobody’s case that the said suit was decreed exparte or unopposed by the accused. It is not known on what grounds the said suit was decreed. As per Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 the prohibition of enter into benami transactions does not apply to purchase of property by any person in the name of his wife or un-married daughter. There is also a legal presumption contained therein to the effect that unless the contrary is proved, the said property had been purchased for the benefit of the wife or the un-married daughter as the case may be. Therefore, decreeing of the suit O.S. No.955 of 1992 by the civil Court, even if true and correct, it cannot have any bearing on this criminal case. It has to be seen herein whether it was the accused who purchased the house property in the name of his second wife P.W-41. 10) In Krishnanand Agnihotri V. State of M.P[1] the Supreme Court laid down the law relating to burden of proof in a criminal case of this nature to prove benami nature of a transaction, to the following effect: “It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. (Vide Jayadayal Poddar V. Mst. Bibi Hazra (1974(2) SCR 90 = AIR 1974 Supreme Court 171). It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence.” 11) The appellant’s senior counsel also placed reliance on P.SATYANARAYAN MURTHY Vs. STATE OF ANDHRA PRADESH[2] and M.KRISHNA REDDY Vs. STATE[3] of the supreme Court on the same aspect and to the same effect as above. 12) Therefore, it has to be seen whether the prosecution has made out that item No.2 was purchased by the accused and kept the same benami in the name of his second wife, PW41. After relationship between the accused and PW41 became strained and both of them separated from each other, PW41 filed O.S.No.955 of 1992 against the accused for permanent injunction in respect of the property covered by items 2 to 5 herein. It is stated that after the accused and PW41 separated from each other, PW41 married another person by name Indrakiran Reddy who was working as Deputy Superintendent of Police. By the time of purchase of item No.2 in the year 1985, PW41 was living with the accused as his second wife. Irrespective of legality of marriage and relationship between the accused and PW41, there is no dispute of the fact that both of them lived as man and wife from 22.12.1979 to 26.08.1992 when a deed of divorce was entered into by them. Though PW41 was not de jure wife of the accused, she was de facto wife of the accused. Apart from live-in relationship between the accused and PW1 as man and wife, they have a son born to them during the year 1982. 13) Originally, item No.2 belonged to one Devatha Nageshwar Rao of Mailavaram, Krishna District. Initially, the accused purchased the said property from Nageshwar Rao, but obtained Ex.P13(e) registered irrevocable General Power of Attorney dated 05.11.1984 instead of obtaining registered sale deed therefor. Thereafter, the accused as General Power of Attorney holder of Devatha Nageshwar Rao executed Ex.P10 registered sale deed for item No.2 in favour of PW41. Consideration for item No.2 is mentioned as Rs.35,500/- in Ex.P10. But, on the date of and under Ex.P10, no amount was paid by PW41 either to the accused or to Nageshwar Rao. Ex.P10 reads that total consideration of Rs.35,500/- was already received from the purchaser by the vendor. From Ex.P10, one fact is evident to the effect that PW41 did not make any payment of any portion of consideration to the vendor thereunder. Details of the alleged prior payment of consideration are not mentioned in Ex.P10. Since Ex.P10 is between the accused and his second wife PW41, it was executed without payment of consideration. 14) It is contended for the appellant placing reliance on K.Goverdhan Vs. State of A.P.[4] of this Court that it cannot be assumed that the accused purchased the property with his funds on the mere ground that the alleged binamidar has no sufficient income to purchase the property. It was a case where the alleged binamidar was mother of the accused. But, in the present case on hand, it is a case of the property standing in the name of second wife of the accused, who is a family member of the accused. In fact, it was the accused who executed Ex.P10 sale deed in favour of his second wife without obtaining any consideration and he had irrevocable general power of attorney of the original owner, Devatha Nageshwar Rao. The fact that the accused obtained irrevocable general power of attorney from the original owner in respect of item No.2 and thereafter transferred the property in the name of his second wife, indicates that the accused was instrumental in obtaining item No.2 in the name of PW41. 15) Though it is contended for the appellant that PW41 was having cloth business and was earning money from cloth business and was an income tax assesse since the year 1983, the appellant/accused could not prove the said fact either by examining himself or by filing necessary documentary proof therefor or by examining relevant witnesses to speak to the said facts. As per Exs. P62 to P66, PW41 filed income tax returns during the year 1987-88 onwards. Purchase of item No.2 was in the year 1985, long prior to PW1 filing income tax return of her annual income. As per Ex.P62 return, PW41 had income of Rs.2000/- from house property and Rs.8,644/- from her saree business during the year 1986-87. After removing A.C. sheet roof house in item No.2, item No.3 was constructed between October,1985 and August,1986 consisting of ground floor with two rooms, kitchen, out house room and compound wall. Item No.4 consisting of first floor on item No.3 was constructed between September, 1986 and November, 1986. By the side of the property covered by items 3 and 4, a double storied building was constructed subsequently as item No.5. PW7 who is a Deputy Director Engineer in ACB valued the said properties and there is no dispute about their valuation. Item No.2 was valued at Rs.35,500/- as per the value mentioned in Ex.P10 sale deed. Item No.3 was valued at Rs.68,800/-. Item No.4 was valued at Rs.63,000/-. Item No.5 was valued at Rs.2,95,200/- When PW41 was having meager income from her saree business as returned by herself in Exs.P62 to P66, there was no material to show that she constructed the house covered by items 3 to 5 with her own income. It is contended for the appellant that since PW41 is a third party to the criminal case, she cannot be expected to produce evidence before the Court to prove passing of consideration for item No.2 under Ex.P10 sale deed and expenditure for construction of items 3 to 5 in item No.2. This Court does not expect PW41 to lead evidence on her behalf against the prosecution case. In fact, the prosecution intended to rely upon PW41’s evidence and examined her as one of the prosecution witnesses even though she happened to be second wife of the accused. PW41 was one of the family members of the accused, in as much as she is not a kept mistress of the accused. Formality of marriage was undergone between the accused and PW41 and they lived as man and wife for nearly 13 years, during which period they had one son also. Inspite of the marriage between PW41 and the accused being not in accordance with law, the factum remains that PW41 was always a family member of the accused, she being a member of the second family of the accused. 16) Loan of Rs.50,000/- by PW41 from Canara Bank, Dilsukhnagar Branch with guarantee of the accused was obtained on 14.04.1991 for the purpose of saree business of PW41. Ex.P6 contains relevant documents and account copy relating to that loan. PW3, who is manager of the said bank, filed the said record in the lower Court. Therefore, no amount covered by loan from Canara Bank obtained by PW41 in the year 1991 was used for construction of items 3 to 5 in item No.2, which took place long prior to that loan. 17) Apart from genesis for purchase of item No.2 being the accused as per Ex.P16(e) irrevocable General Power of Attorney and lack of passing of consideration under Ex.P10 sale deed between the accused and PW41 who are parties to it, there is another circumstance which drives conclusion in favour of PW41 being binami of the accused in respect of items 2 to 5. During searches made by ACB officials, title deed for item No.2 and the documents relating to permission for construction of items 3 to 5 were seized from the possession of the accused and they were not in custody of PW41. Another important circumstance to be proved in a case of binami is the motive for secreting the property in the name of binamidar. Even though the accused is a public servant and even though PW41 is his second wife with whom the accused was living separately in item No.5, the accused did not declare items 2 to 5 to the Government and did not obtain any permission from the Government for purchase of item No.2 by showing source for consideration either for purchase of item No.2 or for construction of item Nos.3 to 5. According to the prosecution, it was the reason or motive for the accused to keep item Nos.3 to 5 in the name of PW41 as binamidar. Also, it may be a reason that the accused intended to benefit PW41 because of his relationship with her as man and wife and because PW41 delivered a son through him in the year 1982 itself. The starting fact that it was the accused who obtained registered irrevocable General power of attorney deed from the original owner Devatha Nageshwara Rao for item No.2, undoubtedly indicates that it was the accused who purchased item No.2 initially from Devatha Nageshwara Rao. Otherwise, nothing is let in to show any relationship between the accused and Devatha Nageshwara Rao for entering into irrevocable General Power of Attorney deed as per Ex.P16(e) in favour of the accused for item no.2. Thus, for my own reasons narrated above, I am of the opinion that item Nos.2 to 5 are the assets of the accused and that item No.2 was purchased by the accused and item Nos.3 to 5 were constructed by the accused as his own and kept benami in the name of his second wife, PW41. The lower Court came to a correct conclusion that items 2 to 5 are liable to be included in the assets of the accused . 18) Insofar as Item No.1 is concerned, It is a flat bearing No.215 at Moosarambagh standing in the name of 1st wife of the accused by name P.Mani. There is no dispute that 1st wife of the accused has no independent source of income. It is the contention of the accused/appellant that DW1, who is the sister of the accused, gave money for purchasing the said flat. The flat is valued at Rs.1,20,000/-. DW1 deposed that with the amounts accumulated by her in money lending business and with the sale proceeds of gold, she purchased the said flat for Rs.1,20,000/- in the year 1986 and since then, she is staying in that flat with her brother, who is the accused. DW1’s husband is not available as her husband left her company to an unknown destination after marriage with her. PW8 is father of DW1’s husband. It is his evidence that DW1 has been residing in his house at Amberpet for about ten years after her husband left them. He says that while residing in one room, DW1 was collecting rents from tenants in three rooms in the same house at Amberpet. PW8 further deposed that about four years prior to his evidence in the lower Court, he gave Rs.50,000/- to DW1 and she left his house and she is now residing in rented house. PW8 gave evidence in the lower Court in the year 1999. It follows that DW1 left the house at Amberpet in the year 1995. According to PW8, previously, DW1 was maintaining herself with rents she was getting from three rooms in his house at Amberpet. In cross-examination, PW8 deposed that since the year 1972, till four years ago, DW1 was residing in his house at Amberpet and was enjoying the rents from that house. There is no indication on record to show that the ostensible owner namely 1st wife of the accused is not owner of item No.1. There is no acceptable evidence to show that DW1 advanced any money for purchase of the said flat. If really DW1 advanced any money for purchase of the flat, then she could have obtained the sale deed for the said flat in her own name; and there were no reasons or motive for DW1 to obtain the flat in the name of a third person. It is not as if the flat was obtained in the name of DW1’s brother. The flat stands in the name of DW1’s brother’s wife. There is no reason for DW1 to keep item No.1 benami in the name of 1st wife of the accused. In those circumstances, the lower Court rightly included item No.1 in the assets held by the accused. 19) Therefore, for all the above reasons, I have no hesitation to uphold the finding of the lower Court to the effect that the accused was possessing assets which were disproportionate to his income to the