Government employee have no responsibility towards the family members legally separated. : Telangana High Court

Vaidya Aditya vs The State Acb on 17 March 2021 Telangana High Court Vaidya Aditya vs The State Acb on 17 March 2021 Bench: G Sri Devi THE HONOURABLE JUSTICE G. SRI DEVI CRIMINAL APPEAL No. 5420 This Criminal Appeal is filed by the appellant under Section 11 of the Criminal Law Amendment Ordinance 1944 being aggrieved by the order of interim attachment of his properties dated 04.01.2020 passed by the I Additional Special Judge for SPE and ACB Cases City Civil Court Hyderabad in Crl.M.P.No.220 arising out of Cr.No.25 RCA CR 2 2018 of ACB City Range 2 Hyderabad. The said Crime is registered against V.Vara Prasad the then Additional District Judge who is the father of the appellant During the course of investigation the respondent herein filed Crl.M.P.No.220 seeking ad interim order attaching movable and immovable properties of the Accused Officer and his family members as per Annexure I to V of G.O.Ms.No.21 dated 10.04.2019 of LawDepartment dated 10.04.2019 It is the submission of the appellant that when the property of the appellant was attached the appellant moved an application before the Special Judge claiming that the said property belongs to him and his father Accused Officer has not contributed any part of consideration while purchasing the said property but however the Special Judge orally observed that such claim will be considered during the course of trial. As such he filed the present appeal to set aside the impugned order in respect of attachment of his properties mentioned in Annexure III of G.O.Ms.No.21 dated In the grounds of appeal the appellant contends that there is documentary evidence in the shape of bank accounts to show that he has contributed the entire consideration for the acquisition of the property. It is submitted that the appellant is an earning member working in USA and while studying abroad he was remitting his salary income to his Bank Account in USA from which it was transferred to his Bank Account in India and from that account only the consideration is paid to the It is further submitted that when the father of the appellantapplied for permission for acquisition of the property by his son the Additional Special Judge replied that because the appellant is not dependent on the accused no such permission is necessary for purchase of the property. It is therefore submitted that the Special Judge without applying his mind to the material on record simply refused to exercise his jurisdiction to adjudicate upon the claim of the appellant and committed irregularity. To substantiate such contention the learned Counsel for the Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 appellant placed reliance on the judgement of this Court in K. Somasekhara Reddy & others vs. The State represented by its SHO Inspector of Police Kadapa1 The learned Special Public Prosecutor for ACB while supporting the orders of the Special Judge strenuously contended that all the documents produced by the appellant to show that the consideration was paid by him and that accused has not contributed anything for acquisition of property have to be considered at the time of trial of the case on the charge of his possessing assets disproportionate to his known sources of income. He argued that without evidence relating to documents it is not desirable to lift the interim attachment order on the property and hence he urged to dismiss the appeal Having heard the arguments of both the learned Counsel I have considered the documents filed along with the appeal. The facts of the case appearing from the arguments and the documents are required to be referred for appreciation of the case of both sides The facts of the case are that respondent officials registered a case in Cr.No.25 RCA CR 2 2018 of ACB City Range 2 against 2015ALT32 father of the appellant herein by name V.Vara Prasad the then Additional District Judge Under Sections 13and Section 13of Prevention of Corruption Act alleging that he possessed disproportionate assets worth of Rs.74 44 460 and issued FIR dated 13.11.2018. Subsequently the Director General Anti Corruption Bureau of Telangana State submitted a proposal to the Government seeking authorisation to file an application before the I Additional Special Judge for SPE & ACB Cases Hyderabad in the above crime vide Letter in RC.No.122 RCA CR.2 2018 S.2 dated 12.02.2019 for attachment of certain properties stood in the name of Vaidya Vara Prasad and his family members. Accordingly the State Government issued G.O.Ms.No.21 LawDepartment dated 10.04.2019 authorizing respondent herein to file the petition for attachment of properties of Vaidya Vara Prasad and his family members worth of Rs 1 28 56 042 as described in Annexure I to Annexure V under section 3 of Criminal Law Amendment Ordinance 1944. Pursuant to the said G.O. the respondent filed petition in Crl.M.P.No.220 under section 3 and 4 Criminal Law Amendment ordinance 1944 before the I Additional Special Judge for SPE & ACB Cases HyderabadAppellant completed his Engineering Education in Hyderabad. Later he left for U.S.A. in August 2012 to study M.S. While he was a student he was offered internship with his employer Thomson Routers) and he was earning and sending money to his parents. Copy of employment letter dated 01.05.2013 is filed in proof of the same Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 b) Appellant after completion of his M.S. education in U.S.A. joined as Software Engineerin Tech Leaders INC Company situated at Plano Texas U.S.A. w.e.f c) The employer used to deposit pay salary into his two bank accounts in U.S.A. i.e.Bank of America with Account bearing No.29013308100Marlborough with Account No.18496935. These account particulars are made available d) On 27 12 2013 appellant entered into an Agreement of Sale to purchase Flat No.B 608 Aditya Sunshine Apartments Kondapur Hyderabad for a sale consideration of Rs.53 Lakhs. His grandfather Sri. Uma Shanker who is a practicing Advocate paid Rs.3 Lakhs towards advance to the vendor in two instalments i.e.Rs.1 50 000 each as indicated by Document No.10 and 11 Subsequently appellant obtained the executed registered sale deed No.5942 2017 dated 08 06 2017by paying balance of Rs.50 Lakhs through 5Cheques each worth of Rs.10 LakhsAppellant submits that he purchased Flat No.B 608 Aditya Sunshine Apartments Kondapur with his own funds. He also availed hand loan from his sister s husband Ravishankar Siddapuram family friend Sri. D. Raj Kumar through account transfers. He repaid the said hand loan of D. Raj Kumar and part of hand loan to his brother in law Ravi Shankar Siddapuram through account transfers much prior to registration of the case against his father. The said transactions are reflected in Canara Bank Statement of Appellantand Bank Statements of Rajkumar Document No.24). Basing on these documents it is submitted by the appellant that his father the accused in the case is in no way concerned with the said property. His father has not contributed any money to purchase the said Flat No.B 608 f) While inviting my attention to the above documents the learned Counsel for the Appellant argued that the appellant is not dependent on his father at the time of acquiring the subject attached property as per Document No.23 and therefore he cannot be considered as member of the family for the purpose of this case g) As rightly pointed out by the learned Counsel for the appellant the word family member is clearly defined in Section 2 v) of AP Civil ServiceRules 1964 as follows Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 Member of the Family" in relation to a Government employee includes the spouse son daughter step son or step daughter of such employee whether residing with such employee or not and any other person related to and residing with such employee and wholly dependent on such employee but does not include a spouse legally separated from such employee or a son daughter step son or step daughter who is no longer in any way dependent upon such employee or of whose custody such employee is deprived by law Inasmuch as the documents produced by the appellant before the Special Judge and also before this Court abundantly proves that he is the salaried person and has independent income in USA and is not dependant on his father the accused as such the above items of properties of appellant should not have been added to the assets of his father One more circumstance that is lost sight of by the authorities as also the learned Special Judge is that the Memo No.623 SPL.C A1 2008 1 of GAD Government of Andhra Pradesh dated 15.10.2008 which clearly states that "...the properties of kith and kin of the Accused Officer should not automatically be added to the properties Proper analysis of the sources of such assets of Kith and kin and friends should be undertaken before arriving at a decision to include the same in the properties of the accused officer Therefore as rightly submitted by the learned Counsel for the appellant there is no document produced by the Respondent to show that in compliance of the mandate of the above G.O the authorities have conducted proper analysis of sources of income of the appellant. This mandate is obviously intended to protect innocent kith and kin of the accused and prevent the authorities to abuse the power given to them by the Ordinance to attach the property which is believed to be belonging to the accused public servant. This rule is evidently given a go bye by the Respondent The arguments of the learned Special Prosecutor as also pleaded in the counter are that as per the Bank Transactions a total amount of Rs.38 84 683 was received from U.S.A. and Credited to the Bank Account No.1179101024044 of Canara Bank Kundanbagh Branch from 03.02.2016 to 07.11.2018 which stands in the name of appellant Aditya Vaidyawhere it is stated that "as per the instructions of Vaidya Vara Prasad Davalji Rajkumar transferred Rs.12 34 000 in two transactions to the Canara Bank Kundanbagh Branch account stands in the name of appellant Aditya Vaidya In page 15 of the Counter again it is stated that "Ravishankar Siddapuram brother in law of appellant transferred Rs.10 Lakhs on 22.05.2017 to Canara Bank Account of appellant Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 It is the contention of the Respondent that there are illegal transactions between appellant s father Rajkumar and Ravishankar Siddapuram. Respondent further contended that appellant s father paid entire sale consideration of Rs.53 Lakhs to the Vendor of appellantand subsequently the said Vendor repaid the said amount to father of appellant i.e. after getting the registered sale deed by appellant in the year 2017 and therefore requested to dismiss the appeal The arguments of the learned Special Public Prosecutor are not convincing as they are based on assumptions and short of any prima facie evidence. The copy of agreement of sale shows that the appellant entered into registered agreement of sale dated 27.12.2013 with his father s friend Sudharshan Patipaka in respect of said Flat No.B 608. Appellant s grandfather Sri.Uma Shakar Senior Advocate) paid advance of sale consideration of Rs.3 00 000 in cash and obtained receipts which is evident from the document Nos.10 and 11 It is not in dispute that the appellant has got SB Account No.1179101024044 at Canara Bank Kundanbagh Branch Hyderabad. As per document No.19 it is clear that the appellant joined as Software Employee in TEK LEADERS Company in U.S.A. in February 2015. Appellant filed his bank statements showing that he was getting his salary amount deposited into two banks of U.S.A. i.e. Bank of Americaand DCU Bank clearly show that appellant availed hand loan of Rs.12 34 000 from his family friend D.Rajkumar and repaid the said hand loan long prior to this case through account transfer only. The Canara Bank statement of appellant also proves that the appellant availed hand loan of Rs.15 34 000 from his sister s husband Ravi Shankar Siddapuram through account transfer but subsequently appellant repaid an amount of Rs.6 50 000 through account transfer The above documents filed by appellant clearly demonstrate that the appellant purchased schedule item of property i.e. Flat No.B 608 with his own funds. There is no record to show that the father of appellant has contributed any amount to purchase the said property. The respondent should not have brought the said property of appellant for interim attachment without making any exercise to analyze the income sources of the appellant as per the mandate given in the G.O referred in the above paragraphs. In the sale deed of the said property i.e. Document No.16 the mode of payment of sale consideration of said Flat is clearly recited stating that the balance of sale consideration of Rs.50 Lakhs was paid by appellant himself through his account. Appellant also filed Axis Bank Account Statement of his Vendorto prove that the said sale consideration of Rs.50 Lakhs was credited into the account of the Vendor. The contents of the above documents prove that the said property was acquired by appellant with his own funds. Appellant being major and independent earning member in U.S.A. in order to purchase the said Flat need not seek any prior permission from the High Court which is evident from the letter addressed by the Registrar Indian Kanoon to the then District Judge Medak at Sangareddyin similar set of circumstances held thus 8. Although the petitioners herein had filed objections on 26 09 2012 along with supporting material the Special Court in its order dt.06 06 2014 in Crl.M.P.No.1714 took the view that the points raised in the objections can only be effectively considered after full trial and after examining the witnesses and documents 49. In my opinion in doing so the Court below had abdicated its responsibility to decide the objections and acted contrary to the mandate of sub Sectionof Section 5 of the Ordinance by refusing the investigating objections. Also in Crl.M.P.No.1214 when extension of the ad interim attachment was sought under Section 10 a) of the Ordinance by the respondents that too with a delay of 464 days it directed extension of the attachment for a period of one year from 06 06 2014 without assigning any reasons therefor 50. This shows the casual manner with which the Special Court is conducting the proceedings against the petitioners."Applying the observations made in the aforesaid judgement to the facts of the present case this Court finally holds that there is abundant documentary evidence filed by appellant which proves that the said Flat No.B 608 Aditya Sunshine Apartments Kondapur Hyderabad was purchased by the appellant with his own earnings. On the other hand there is no record placed by the respondent to prove that the father of the appellant i.e. Accused Officer contributed any amount to purchase the said Flat No.B 608 or that he has paid the entire sale consideration in the year 2013 itself and that the vendor has repaid the entire amount to the father of the appellant. The contents of the documents filed by appellant clearly prove that the said Flat No.B 608 is acquired by appellant with his own funds and it is exclusive property of the Indian Kanoon Vaidya Aditya vs The State Acb on 17 March 2021 a p p e l l a n t . R e s p o n d e n t s h o u l d h a v e a d h e r e d t o t h e c o n t e n t s o f G o v e r n m e n t M e m o No.623 SPL.C A1 2008 1 dated 15.10.2008and should not have added the said asset of the appellant to the assets of his father For the foregoing reasons the appeal is allowed and the interim attachment in respect of Item No.1 and Item No.2 of Annexure III of G.O.Ms.No.21 LawDepartment dated 10.04.2019 i.e. Flat No.B 608 Aditya Sunshine Apartments Kondapur village Serilingampally Mandal Hyderabad worth of Rs.53 Lakhs is raised and the interim attachment order dated 04 01 2020 in Crl.M.P.No. 220 in Cr.No.25 RCA CR 2 2018 of ACB City Range 2 Hyderabad on the file of I Additional Special Judge for SPE & ACB Cases Hyderabad to the extent of aforesaid items is set Miscellaneous petitions if any pending shall stand closed JUSTICE G.SRI DEVI 17.03.2021 Gsn gkv Indian Kanoon 

Summary: In the case of a Government employee, “Member of the Family” refers to the employee’s spouse, son, daughter, step-son, or step-daughter, and any other person related to and residing with, such employee and wholly dependent on such employee, but does not include a spouse legally separated from such employee, or a son, daughter, step-son, or step-daughter, was refereed by Justice G.Sri Devi of the Telangana High Court in the matter of Vaidya Aditya v. State [CRIMINAL APPEAL No. 544 of 2020] This order was given for the fact that Respondent officials filed a complaint in ACB, City Range-2, against the appellant’s father, V.Vara Prasad, the then Additional District Judge, alleging that he owned ‘disproportionate assets’ worth Rs.74,44,460/- and issued an FIR dated 13.11.2018. Following that, the Director-General of the Telangana State Anti-Corruption Bureau submitted a proposal to the government, requesting permission to file an application before the I-Additional Special Judge, for SPE &amp; ACB Cases, Hyderabad, in the above crime via Letter, for the attachment of certain properties held in the name of Vaidya Vara Prasad and his family members.  Accordingly, the State Government issued G.O.Ms.No.21, Law (LA&amp;J, Spl. B) Department, dated 10.04.2019, authorising respondent herein to file a petition for attachment of Vaidya Vara Prasad and his family members’ properties worth Rs.1,28,56,042/- as described in Annexure I to Annexure V, pursuant to section 3 of the Criminal Law Amendment Ordinance, 1944. In accordance with the above mentioned G.O., the respondent filed a petition in Crl.M.P.No.20 of 2020 before the I-Additional Special Judge for SPE &amp; ACB Cases, Hyderabad, under sections 3 and 4 of the Criminal Law Amendment Ordinance, 1944. (Document No.3). As a result, temporary attachment orders were issued by the learned I-Additional Special Judge for SPE&amp;ACB Cases in Hyderabad. As a result, as correctly stated by the learned Counsel for the appellant, the Respondent has given no document demonstrating that the authorities have done a proper study of the appellant’s sources of income in accordance with the mandate of the aforementioned G.O. This directive is clearly designed to safeguard the accused’s innocent relatives and to prevent the authorities from abusing the power granted to them by the Ordinance to seize property believed to belong to the accused/public worker. The Respondent authorities have apparently abandoned this rule. According to the learned Special Prosecutor’s arguments, from 03.02.2016 to 07.11.2018, a total amount of Rs.38,84,683/- was received from the United States of America and credited to the Bank Account No.1179101024044 of Canara Bank, Kundanbagh Branch, which is in the name of appellant Aditya Vaidya (Para 4 of Counter). The payment of an Rs.3 lakh advance by the appellant’s grandfather was disallowed by the respondent. Respondent claimed that the appellant’s grandpa, Sri. Uma Shankar, Advocate, does not have the financial means to pay the sum of Rs.3 lakhs.”As per the directions of Vaidya Vara Prasad, Davalji Rajkumar transferred Rs.12,34,000/- in two transactions to the Canara Bank, Kundanbagh Branch account stands in the name of appellant Aditya Vaidya,” according to page 8 of the Respondent’s Counter submitted in this appeal. This demonstrates the Special Court’s casual approach to the petitioners’ case. Applying the observations made in the aforementioned judgement to the facts of the current case, this Court concludes that the appellant has presented ample documented evidence demonstrating that the said Flat No.B-608, Aditya Sunshine Apartments, Kondapur, Hyderabad was purchased with his own funds. The respondent, on the other hand, has not produced any evidence that the appellant’s father, Accused Officer, contributed any money to the acquisition of Flat No.B-608 or that he paid the total transaction price in the year 2013. The contents of the documents provided by the appellant clearly show that the aforementioned Flat No.B-608 was purchased with his own money and is the appellant’s exclusive property. Respondent should have followed the instructions in Government Memo No.623/SPL.C/A1/2008-1, dated 15.10.2008 and not included the appellant’s asset to his father’s holdings.