Sri A.V.Ravindra Babu
SESSIONS JUDGE, MAHILA COURT-CUM-VI ADJ
Prl District Court Complex, Visakhapatnam · Visakapatnam · Andhra Pradesh
Sri A.V.Ravindra Babu, SESSIONS JUDGE, MAHILA COURT-CUM-VI ADJ, is posted at Prl District Court Complex, Visakhapatnam, Visakapatnam, Andhra Pradesh, India. 458 court orders on record since 2011. 27 judgments with full text available. Primarily handles OS, OP, CC cases.
Featured Judgments
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CALENDER AND JUDGMENT
21/2006 CC
CASE TRIED BY SPECIAL JUDGE FOR SPE 7 ACB CASES, VISAKHAPATNAM.
D A T E OF: OFFENCE … 09-04-2002
REPORT OR COMPLAINT NIL
APPREHENSION OF ACCUSED NIL
RELEASE ON BAIL NIL
COMMENCEMENT OF TRIAL 10-09-2014 CLOSE OF TRIAL 01-05-2015 SENTENCE OR ORDER 15-05-2015
EXPLANATION FOR DELAY AND REMARKS:-
Accused appeared and copies of documents are supplied. Charge under Sec.13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 framed against accused on 22.8.2014. The Special Public Prosecutor for ACB Cases, Vizianagaram/Srikakulam Range appeared for the Complainant and of Sri G.V.P.B.S. Murthy, Advocate appeared for AO. P.Ws.1 to 41 are examined and Ex.P.1 to P.142 and further during the course of cross examination of P.W.39, Ex.X.1 and X.2 are marked on behalf of the prosecution. After the closure of the evidence of the prosecution, AO is examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing in the evidence let in by the prosecution for which the AO denied the incriminating circumstances and stated that he will file written statement and that he will adduce defence evidence. During the course of defence evidence AO got examined D.Ws.1 to 20 out of whom D.W.20 is no other than the AO and Ex.D.1 to D.47. Arguments on both sides heard on 1-5-2015 and the Judgment is pronounced on to day i.e., 15-5-2015. Hence, the delay.
JUDGMENT IN CALANDER CASE NO.21/2006 ON THE FILE SPECIAL JUDGE
FOR SPE and A.C.B. CASES VISAKHAPATNAM
COMPLAINANT: State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam
NAME OF THE ACCUSED: Sri Jagarapu Ganesh, S/o Apparao, 41 years, Forest Range Officer, Formerly Narsipatnam, Visakhapatnam
FFENCES: O U/s 13 (2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 against the accused
FINDING OF THE COURT:- AO IS FOUND GUILTY for the charge U/s. 13 (2) r/w 13(1) (e) of P.C. Act and he is convicted of the same under Section 248(2) Cr.P.C.,
SENTENCE: In the result, the AO is found guilty of the charge under Section 13 (1)
(e) read with 13 (2) of Prevention of Corruption Act and he is convicted of the same under Section 248 (2) Cr.P.C., In the result, AO is sentenced to suffer rigorous imprisonment for 5 (Five) years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) in default to suffer simple imprisonment for 1 (One) year for the charge U/sec.13 (1)(e) read 2 with 13 (2) of Prevention of Corruption Act. The period of remand undergone by AO during the course of investigation shall be set off against the term of imprisonment (NIL). Item No.1, Item No.2, Item No.3, Item No.4, Item No.7, Item No.10, Item No.12 (1), Item No.13 (2) (3) (4)(5)(6)(7)(8)(9)(10) (11)(12)(13)(14), Item No.14 (1)(2) and (3) and item No.17 (1)and (2) and to an extent of Rs.7,062/- from item NO.12 (10) shall be confiscated to State after appeal time is over and subject to result of the appeal, if appeal is filed. A copy of this judgment is ordered to be forwarded to the Head of the department of AO under Registered post with Ack. Due. Fine Amount of Rs.1,00,000/- (Rupees One Lakh is paid by AO)
Sd/-A.V.Ravindra Babu
III Additional District and Sessions Judge -cum Special Judge for SPE & ACB Cases Visakhapatnam.
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IN THE COURT OF SPL. JUDGE FOR SPE AND ACB CASES
-cum-III ADDITIONAL DISTRICT AND SESSIONS JUDGE'S COURT,
VISAKHAPATNAM.
Present: A.V.Ravindrababu,
Spl. Judge for SPE & ACB Cases, Cum-III Addl. District AND Sessions Judge, Visakhapatnam. Friday, this the 15th day of May, 2015.
C.C.No.21/2006
Between: State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam …Complainant
And: Sri Jagarapu Ganesh, S/o Apparao, 41 years, Forest Range Officer, Formerly Narsipatnam, Visakhapatnam…Accused Officer
This case is coming on 1-5-2015 for final hearing before me in the presence of learned Spl. Public Prosecutor for ACB Cases, Visakhapatnam and of Sri G.V.P.B.S.Murthy, Advocate for Accused Officer, and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
The State represented by the Inspector of Police, Anti-Corruption
Bureau, Visakhapatnam filed a charge sheet against the Accused Officer namely
Jagarapu Ganesh (who will herein after be referred as AO for the sake of convenience) in Cr.No.5/RC-WLR/2002 under Section 13 (2) read with 13(1)(e) of
Prevention of Corruption Act, 1988 of Visakhapatnam, alleging in substance that the AO joined in Government Service i.e., in Forest Department on 8.11.1993 as
Forest Range Officer Trainee and underwent training from 8.11.1993 to 31.10.1995 at Balaghat, Madyapradesh and worked as ARO Vizianagaram Division from 1.11.1995 to 31.10.1996. He worked as Forest Range Officer, K.D. Peta,
Visakhapatnam District from 6.11.1996 to 24.6.2001 and he also worked as Forest
Range Officer, Narsipatnam from 25.6.2001 to 9.4.2002. By virtue of the post held by him, he falls under the category of public servant as defined under Section 2 © of Prevention of Corruption Act, 1988.
02. On credible information that the AO while working as public servant had indulged himself in corrupt and dubious practices and acquired huge assets in his name and in the name of his family members, the ACB registered a case in
Cr.No.5/RC-WLR/2002 and during the course of investigation they conducted searches at various places on 9.4.2002 i.e., at his residential premises and houses 4 of his near relatives and seized several incriminating documents pertaining to his
Assets, Income and Expenditure. For the purpose of investigation, the check period has been taken from 8.11.1993 i.e., date of entry into service to 9.4.2002 i.e., the date of house searches.
03.The abstract of the assets as shown by the investigating agency in
Annexure-I of the charge sheet in tabular form is as follows:
ANNEXURE-I
ABSTRACT OF ASSETS
1.Purchased commercial complex styled as bhargavi 9,60,000.00 plaza in Anakapelle in the name of his wife Smt. Lalitha Kumari
2.Developments made on the above house8,20,000.00 (item No.1)
3.Purchased house site at Saradanagar, Narsipatnam13,000.00
4.Purchased a flat constructed by the builder on the 3,00,000.00 above total site, in his name
5.Developments made in the above flat50,000.00
6.Constructed RCC building in lalam Koduru 1,80,000.00 Atchutapuram mandal
7.Purchased agricultural land in papaiahpalem in the 4,90,000.00 name of his wife
8.Purchased agricultural land in Papaiahpalem in the 7,20,800.00 name of his father
9.Purchased commercial complex in daspallah lay out, 23,00,000.00 Visakhapatnam in the name ofhis father
10. Purchased house site in gandhi nagar, anakaple in the 1,50,000.00 name of his wife;
11. Purchased house site in G.M ward, anakapalle in the 2,00,000.00 name of his father.
12. Bank Balances
1. S.B.Account bearing No. ASB/01/00551134 in 2,04,772.32 Andhra Bank, woodpeta, Anakapalli in his name
2. S.B Account bearing NO. SB/SRS /41 in Visakha 33,000.00 Grameena Bank, Narsipatnam
3. S.B. Account bearing No. SB/SRS/132 in 47,200.00 Visakhapagrameena Bank, Narsipatnam
4. S.B Account bearing NO. 8515 in Bank of India , 9,35,082.00 Anakapalle
5. SB.Account bearing No. ABG 20148 in Andhra 1,005.00 Bank, Narsipatnam
6. SB Account bearing No 00106083 in State Bank of 24,909.00 Hyderabad, Anakapalle
7. S.B account bearing NO. 8517 in Bank of India, 2,722.00 Anakapalle
8. S.B account bearing NO. 22635 in Visakhapatnam 1,008.00 Co-operative Bank Visakhapatnam 5
9. S.B. Account bearing NO. ABS 553101 in Andhra 265.00 Bank, Woodpeta,
10. S.B. Account bearing No. 8699 in Bank of India, 8,937.00 Anakapalle.
11. S.B. Account bearing NO. 006001005256 in ICICI 4,780.00 bank, Dwarakanagar, Visakhapatnam
12. S.B. Account bearing NO. 9025 in Bank of India, 1,00,375.00 Anakapalle in the name of Sri. K.Krishnamurthy.
13. Fixed Deposits
1. The A.O has deposited Rs. 5,00,000/- in Bank of 5,00,000.00 India, Anakapalle in the name of his father Sri.Jagarapu Apparao vide A/c No. DBD 5142
2. The AO has deposited Rs. 4,50,000/- in Bank of 4,50,000.00 india, Anakapalle in the name of his wife Smt. J.Lalitha Kumari vide A/c No. DBD 5356
3. The A.O has deposited Rs. 45,000/- on 29-12-45,000.00 2000 in State Bank of Anakapalle in th e name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326407
4. The AO has deposited Rs .45000/- on 29-12-2000 45,000.00 in State Bank of Hyderabad Anakapple in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326408
5. The A.O has deposited Rs. 55,000/- on 29-12-55,000.00 2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttarakumar @ lalithakumari vide TDR No. 0326409
6. The A.O has deposited Rs. 45,000/- on 26-12-45,000.00 2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326396
7. The AO has deposited Rs. 45,000/- on 26-12-2000 45,000.00 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326397
8. The AO has deposited Rs. 45,000/- on45,000.00 26-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326398
9. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326401
10. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326402
11. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326403
12. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326404 6 45,000.00 13.The AO has deposited Rs. 45,000/- on 26-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 03263975 14.The AO has deposited Rs. 45,000/- on 45,000.00 29-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326406 14Investment in unit trust of india in the name of children
1. The AO invested an amount of Rs. 50,000/- in Unit 50,000-00 Trust of India under Children Growth Gift fund scheme in the name of his daughter Jagarapu Sindhuja vide application NO. 996200575 dated 6-7-99.
2. The AO invested an amount of Rs. 50,000/- in Unit 50,000-00 Trust of India under Children Growth Gift fund scheme in the name of his daughter Jagarapu Jahnavi vide application NO.996200574 dated 6-7-99. 3.The AO invested an amount of Rs. 50,000/- in Unit 50,000-00 Trust of India under Children Growth Gift fund scheme in the name of his daughter Jagarapu Jahnavi vide application NO. 996200575 dated 6-7-99.
15.Investment in sriram investment bonds in the name 45,1,000.00 of AO and his wife
16. Security deposit paid towards electrical connection to 1,000.00 the house of Smt. Lalitha Kumari w/o AO at Anakapalle vide SC NO. 22778
17.Purchased shares and debentures
1. In the name of Children and others:1,04,000.00
2. AO purchased 2500 equity shares each face value 25,000.00 of Rs. 10/- all worth Rs. 25000 in Sri. Ram Investments limited, 123, Angappa Naikan Street, Chennai in the name of his brother-in-law Lalam Prabhakara rao vide Regd folio NO. 48629
18. The AO deposited an amount of Rs. 25000/- in Indian 25,000.00 bank Maharanipeta, Visakhapatnam in the name of his daughter Sinduja
19. Deposit made towards telephone bearing NO. 35683 2,000.00 in the name of AO
20.Purchased 1.5 tonn ac machine in the name of his 26,500.00 father
21.The AO purchased titan watch in his name10,500.00
22.The AO purchased bajaj motor cycle A.P 31 8294 in 35,200-00 his name
23.House hold articles found in the residential premises of AO and his relatives A) House hold articles found during the house search 3,20,154.00 of the house of AO located at D.No.5-37-1 (belonging to Sri Vemulapudi Narsimhamurthy), near Singh Doctor Hospital, KD Peta Road, Narsipatnam 7
B) House hold articles found during the house search 10,3752.00 of the house of Smt. Jagarapu Lalitha Kumari, w/o AO situated at D.No.4.3.33, (Bhargavi Plaza), Woodpeta, Anakapalle
24.Gold ornaments found in locker No.30 and 13 Sate 90,000.00 Bank of Hyderabad, Anakapalle in the name of Lalam Uttara Kumari @ Lilitha Kumari w/o AO
25. Lending amount to Sri Jagarapu Appala Naidu of 40,000.00 Dupperu village Total Assets Rs. 1,00,42,961.32
04.The abstract of the expenditure as shown by the investigating agency in Annexure-II of the charge sheet in tabular form is as follows:
ANNEXURE-II
ABSTRACT OF EXPENDITURE
1.Expenditure for the maintenance of family of AO from 3,95,023.09 8.11.93 to 9.4.02
2. Expenditure towards education of the children of AO.1,14,600.00
3.Expenditure incurred towards registration fee and 5,79,842.00 stamps for purchasing immovable assets
4.Expenditure incurred towards payment of LIC 93,821.00 premiums
5.Expenditure incurred towards payment of telephone 81,077.00 bills
6.Expenditure incurred by AO for availing credit in 1,700.50 Andhra Bank
7.Expenditure incurred towards payment of 1,332.00 consumption of power charges for SC22278 belonging to the house of Smt. Lalitha Kumariw/o AO
8.Expenditure incurred towards payment of 8,310.00 consumption of power charges for SC 6440 at Narsipatnam on KD Peta road under the occupation of AO
9.Expenditure incurred towards payment of house tax 16,500.00 by J. Lalitha Kumari at Anakapalli
10.Expenditure incurred towards regularisation of 2 floor 3,350.00 of Bhargavi plaza, Anakapalli
11.Expenditure incurred towards processing fee for 6,105.00 sanctioning housing loan
12.Unexplained expenditure made from SB A/c 10,41,236.90 No.SB/SRS/41, Visakha Grameena Bank,Narsipatnam
13.Unexplained expenditure made from SB A/c 4,54,000.00 No.006001005256inICICIDwarakanagar, Visakhapatnam
14.Unexplained expenditure made from SB A/c 44,37,058.00 No.SB/SRS/132,VisakhaGrameenaBank, Narsipatnam.
15.Unexplained expenditure made from SB A/c No.6083 8,79,700.00 State Bank of Hyderabad, Anakapallii 8
16.Expenditure incurred towards payment of monthly installments in chits
1. Chit Group No.GL5DV-28 in the name of AO74,679.20
2. Chit Group No.GL5DV-40 in the name of AO 74,834.40
3. Chit Group No.GS3PV-24 in the name of AO2,15,538.00
4. Chit Group No.VNLF-2 in the name of Aos wife 50,040.00
17.Expenditure incurred towards payment of housing 2,50,125.00 loan in Bank of India, Anakapalli
18.Expenditure incurred towards fuel and maintenance 22,700.00 of AP 31 8294
19.Expenditure incurred towards locker rent in ICICI 1,050.00 Bank, Dwarakanagar.
20.Advances given to relatives A. Advanced to K. Sreenivasarao1,50,000.00 B. Advanced to L.Bhaskararao 69,000.00 C. Advanced to L. Prabhakar Rao10,000.00 D. Advanced to Smt. Satyavathi10,000.00
21.Unexplained expenditure incurred by AO 4,03,017.93 Total Expenditure Rs. 9444640.02
05.The abstract of the Income as shown by the investigating agency in
Annexure-III of the charge sheet in tabular form is as follows:
ANNEXURE -III
ABSTRACT OF INCOME
1.Pay and allowances of A.O, during his services516121.00
2.Income Received from LIC20000.00
3.Income obtained towards housing loan form State 190000.00 Bank of India , Agricultural Development Bank, Narsipatnam ,Visakhapatnam Dist.
4.Income obtained through housing loan in bank of 720000.00 India, Anakapalli
5.Income obtained through Loan in Bank of India, 400000.00 Anakapalle
6.Income obtained through Housing loan in Bank of 1000000.00 India,Anakapalle
7.Income obtained through demand loan in bank of 310000.00 India, Anakapalle
8.Income obtained through demand loan in bank of 200000.00 India , Anakapalle Total Income Rs. 3356121.00
06. The final abstract shown by the investigating agency in the charge sheet is as follows:
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FINAL ABSTRACT
Total Expenditure9444640.02 LESS: Income33,56,121 Excess : Expenditure6088519.02 found with AO LESS: Total Assets of A.O.10431961.32 Disproportionate assets found with A.O.1,65,20,480.34
07.The investigation and the seized incriminating documents during the course of searches revealed that the Accused Officer was found in possession of the assets worth Rs.1,04,31,961.32 ps in the shape of movable and immovable properties in his name and in the name of his dependents and other members of his family as on the terminal date of the check period. His total Income for the above said period was arrived at Rs.33,56,121/-. His total expenditure during the check period was estimated at Rs.94,44,640.02. The excess expenditure of AO worked out to Rs.60,88,519.02 (Total expenditure-Total income). Hence, the AO was found in possession of disproportionate assets worth Rs.1,65,20,480.34 ps (Total Assets+ Excess expenditure) for which he could not satisfactorily account for.
Thus the said acts of AO constitute offence punishable under Section 13 (2) read with 13 (1)(d) of Prevention of Corruption Act, 1988.
08.The Government of Andhra Pradesh being the competent authority to remove the AO from service, accorded sanction for his prosecution vide
G.O.Ms.No.13, dt.27.1.2006 of Environment, Forests, Science & Technology for -IV
Department. Hence, the charge sheet.
09.My predecessor in office on perusal of the charge sheet and the material available on record taken cognizance under Section 13 (2) read with 13 (1)(e) of Prevention of Corruption Act, 1988 against AO and issued summons to
AO. On appearance of AO before this Court copies of case documents are furnished to him as required under Section 207 Cr.P.C.,
10.My predecessor in office posted the matter for framing charges and on account of the things born out by the record, the charges could not be framed for a considerable length of period. While so, the Hon'ble High Court of A.P., in a petition filed by the AO to quash the present case granted stay in Criminal Petition 10
No.11649/2010. The matter was coming before me as stayed by the Hon'ble High
Court of A.P., While so, on 25.7.2014 it is brought to my notice by the learned
Special Public Prosecutor that the stay is vacated. For filing copy of the said order, the matter is adjourned to 20-8-2014. While so, on 14.8.2014 this Court received the orders of the Hon'ble Supreme Court of India in a petition for Special Leave to appeal (Crl.) No.5425 of 2014 which shows that when the AO filed the said Special
Leave to Appeal (Crl.) No.5425/14 against the orders of the Hon'ble High Court of
A.P., in Criminal Petition 11649 of 2010, it was dismissed. The Hon'ble Supreme
Court of India directed this Court to finalise the trial of CC 21 of 2006 within a period of six months. Under the circumstances, this Court immediately issued notice to both sides and taken up the matter. On 20.8.2014 it is found that the charges in the case are not framed till then. This Court on 22.8.2014 elaborately recorded the reasons in Crl.M.P.No.5 of 2011 which is a discharge petition to the effect that there is no need to take up that application. On 22.8.2014 on hearing both sides charge under Section 239 Cr.P.C., for the offence under Section 13 (2) read with 13 (1)(e) of Prevention of Corruption Act is framed and explained to the accused in Telugu, for which the AO pleaded not guilty and claimed to be tried.
11.In the light of the directions of the Hon'ble Supreme Court of India as above, this Court has expedited the trial which is born out by the docket proceedings. During the course of trial on behalf of the prosecution P.Ws.1 to 41 are examined and Ex.P.1 to P.142 are marked and further during the course of cross examination of P.W.39 Ex.X.1 and Ex.X.2 are marked. It is found that due to inadvertence of Bench Clerk there is double marking of Ex.P.53, P.54 and P.55 which was found on 9.12.2014 and they are detailed in the deposition of P.W.21. So there are two sets of documents under Ex.P.53, P.54 and P.55. After the closure of the evidence of the prosecution, AO is examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing in the evidence let in by the prosecution for which the AO denied the incriminating circumstances and stated that he will file written statement and that he will adduce defence evidence.
12.The AO got filed a written statement contending in substance that the allegations made against him by ACB in the charge sheet particularly by M. Ramesh 11
Naidu (P.W.40), the then Inspector of Police are totally false and baseless. P.W.40 conducted the entire investigation in a prejudicial and biased manner. It is not that for the first time he is commenting or making a statement against P.W.40 but he and his family members made several representations to the D.G., ACB, Hyderabad with regard to his line of investigation and in one of the representation he requested the D.G., A.C.B., Hyderabad to change the Investigating Officer as he was conducting investigation by suppressing the statements of the witnesses and collecting negative evidence by threatening the witnesses. P.W.40 issued a notice to him to be present at his house (house of AO) for taking measurements for evaluation on 27.7.2002 but without his presence on 24.7.2002 he took the measurements before intimated date. All these facts are disclosed to the D.G.,
ACB, Hyderabad by way of a representations. Since it is caused great injustice to him he was forced to submit such representation. The copies of the said representations are herewith filed. P.W.40 investigated in to the financial status of his father (AO's father) who was in possession of 10 acres of agricultural land and who also taken lease of 52 acres from L.Ws.38 and L.W.31 even before his entering into service. With his agricultural income his father purchased 8.48 cents of land subsequently i.e., during check period but not with the sources of income of the AO.
Though there is documentary proof in respect of borrowing of Rs.13 lakhs by way of two cheques issued by Sri K. Krishna Murthy in favour of his father, P.W.40 intentionally refused to accept the same as income of his father. He, his wife and his father are income tax assessees. The assets that were standing in the name of his father and his wife were purchased by them with their sources of income. They have also borrowed bank loans. They were reflected in their income tax returns collected by P.W.40. The family back ground deposed by P.W.40 has no basis. He submitted a detailed explanation to P.W.40 by marking a copy to D.G., A.C.B., along with number of documents showing legal proof of their contentions. After submitting agricultural income certificate issued by the competent authorities along with his explanation P.W.40 also collected relevant files from the concerned M.R.O's and other relevant revenue officials but intentionally recorded false statements and that is why the prosecution did not venture to examine those witnesses though 12 they were cited. P.W.40 after coming to know that he can not make out a case, had gone to the extent of taking all withdrawals of his father, himself and his wife from the respective bank accounts alleging that they were unexplained expenditure and they were tagged to him and thereby intentionally boosted the quantum of disproportionate assets. Due to lack of accountancy P.W.40 had shown the said items including item NO.21 i.e., cash on hand shown in his income tax returns for the relevant year under the cover of expenditure. The asset belonged to his younger brother i.e., item No.6 of the asset is also tagged to him by alleging that the said house was allotted to J. Ram Krishna under housing scheme. The values of the house hold article have been boosted by the ACB officials and those values of the articles have not been informed either by the AO or his wife. Though they did not purchase any gold, the value of the gold found in the locker is shown as that they purchased it for Rs.90,000/-. The movable and immovable assets standing only in his name were purchased by him and the assets of his brother-in-law, sister, his father, his younger brother, Krishna Murthy, his wife and his father-in-law are belongs to them only and he is not concerned. So far as the investments on the said assets are concerned his father had also given amounts to his wife which were shown in the income tax returns and that P.W.40 intentionally tagged them to him.
The earlier earnings of AO before he joined into service were also informed to
P.W.40 and he did not consider his savings out of his previous earnings. His father's rental income on hiring his jeep to the department was not considered though it is on record. The rental income of his wife was also intentionally deleted.
He had intimated each and every item of assets either acquired by him or his wife to his authorities and he did not violate the conduct rules applicable to him.
Camera belonged to the department was tagged to him. There are missing salary particulars collected by P.W.40. His father and sister have invested the amounts in the name of his children. Educational expenditure of his daughter Sindhuja are incurred by his father and he stood as guardian in the application. He made his representation to the Government by placing the entire record and also about injustice done by P.W.40 and his representation have been scrutinized by the legal department and ultimately the Government issued order to delete the assets of his 13 wife and his father and others from his assets.
13.The AO got filed a list of defence witnesses and during the course of his defence evidence he got examined D.Ws.1 to 20 out of whom D.W.20 is no other than the AO. Some other defence witnesses whose particulars are not mentioned in the list are also examined by filing appropriate applications before this
Court. Ex.D.1 to D.47 are marked on behalf of AO during the course of defence evidence let in.
14.Several constraints came in the way of the Court in disposing this matter within the period of six months as directed by the Hon'ble Supreme Court of
India and under the circumstances, this Court submitted a letter on 21.2.2015 in
Dis.No.164 to the Hon'ble Supreme Court of India through the Principal District
Judge, Visakhapatnam and through the Hon'ble High Court of A.P., seeking
extension of six months time and in the light of the subsequent changed circumstances which are born out by record, the Court submitted another letter dt.2.3.2015 in Dis.No.183 seeking extension of four months time only instead of six months time as prayed in the letter and this Court has information that the
Registrar, Judicial, Hon'ble High Court of Judicature at Hyderabad for the state of
Telangana and Andhra Pradesh forwarded the letters to the Hon'ble Supreme Court by marking a copy to this Court. This Court yet to receive any information whether the Hon'ble Supreme Court of India extended the time as prayed by the Court.
15.Now in deciding the charge framed against the AO, the points that arise for consideration are as follows:
1. Whether the AO was a public servant within the meaning of Section 2 © of Prevention of Corruption Act?
2. Whether the prosecution has proved that the investigating agency obtained a valid sanction order under Section 19 of Prevention of Corruption Act for prosecution of AO before the Court for the offence alleged under Section 13 (1)(e) read with Section 13 (2) of Prevention of Corruption Act?
3. Whether the prosecution has proved beyond reasonable doubt that the AO or any person on his behalf during the check period is found in possession of the pecuniary resources or property disproportionate to his known sources of income for which the AO can not satisfactorily account for?
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4. Whether the prosecution has proved the offence of criminal mis conduct within the meaning of Section 13 (1)(e) punishable under Section 13 (2) of Prevention of Corruption Act against AO?
5. Whether the prosecution has proved the charge under Section 13 (1)
(e) punishable under Section 13 (2) of Prevention of Corruption Act against AO beyond reasonable doubt?
16. Points 1 and 2: There is no dispute that AO was a public servant within the meaning of
Section 2 © of Prevention of Corruption Act and he was drawing salary every month from the account of the Government. Virtually this aspect is not at all in dispute.
17.Regarding the sanction under Section 19 of Prevention of Corruption
Act, the case of the prosecution is that the Government of A.P., being the competent authority to remove the AO from service accorded sanction for his prosecution vide G.O.Ms.No.13, dt.27.1.2006 Environment, Forest, Science and
Technology Department-IV Department. The prosecution examined P.W.39 to bring the sanction order into evidence.
18.Turning to the evidence of P.W.39 she deposed that she has been working as Section officer, Environment, Forest, Science and Technology
Department, Secretariat, Hyderabad since 2011. She is acquainted with the signature of the then Principal Secretory to the government T.Chatterjee. Ex.P93 is the prosecution sanction order of AO Vide G.O.Ms.No. 13, Environment, Forest,
Science and Technology Department, Dt. 27.01.2006. Ex.P93 bears the signature of T.Chatterjee and it was issued by considering the final report of DG, ACB, specimen sanction order and other material placed along with the final report.
During cross examination she deposed that on 27-01-2006 she was working in
General Administration department. Today she brought the file pertaining to
Ex.P93 and the said file does not contain the draft final report basing on the explanation of AO and explanation of AO. The file does not contain the documents sent by AO to the investigating officer. The specimen sanction in the file is replica of Ex.P93. It is true that the government issued G.O.Ms.No.104
Dt.10.10.2007 on representation made by AO to delete the assets, income and expenditure claimed by family members of AO and others. The said G.O. is 15 available in the file brought by her. Ex.X1 is the copy of G.O.Ms. No.104. When the ACB sought the government to reconsider the said GO the government issued
Memo. No.5547/FOR IV(1) 2002-9 Dt. 25.01.2008. Ex.X2 is the said memo( Ex.X1 and X2 are taken from the file brought by the witness at request of defence counsel). She denied that she is not competent to speak in respect of
Ex.P93. The signatory under Ex.P93 is alive.
19.During the course of arguments, the genuineness, validity or otherwise of Ex.P.93 is not in dispute. However, I would like to decide its genuineness, validity or otherwise in the light of the suggestions putforth before P.W.39 during cross examination that she is not competent to speak in respect of Ex.P.93. At the out set, I would like to make it clear that, Ex.X.1 and X.2 have nothing to do with
Ex.P.93. According to Ex.P.93 it has been issued by order and in the name of the
Governor of Andhra Pradesh and it has been issued in exercise of the powers conferred under Section 19 (1) of Prevention of Corruption Act. It has been signed by the Principal Secretary to the Government namely T. Chatterji. Undoubtedly it shows the application of mind by the sanctioning authority. It has been issued in exercise of the statutory functions of the State. Ex.X.1 has nothing to do with
Ex.P.93 for the reason that EX.X.1 appears to have been issued by the Government when the AO made a representation in writing to delete the assets of his wife, father and others tagged to him by the ACB. Ex.X.2 is the memo reiterating
Ex.X.1 GO when the ACB had sought to cancel the same by bringing certain facts to the notice of the Government. Hence, Ex.X.1 and Ex.X.2 have no bearing on the sanction accorded under Ex.P.93. It is to be noticed that there is nothing wrong on the part of the investigating agency to send a model sanction order so as to guide the sanctioning authority regarding the proforma of sanction etc., However, there is no dispute during the course of arguments about the validity and genuineness or other wise of Ex.P.93.
20.At this juncture, I would like to refer here the decision of the Hon'ble
Supreme Court in 2006 Crl.L.J. 518 SC. It is a trap case wherein the trial recorded conviction against accused. The trial Court up held the sanction. When the accused went in appeal before the Hon'ble High Court of A.P., the Hon'ble High 16
Court of A.P., held that the sanction order was not proved in accordance with the law. The order of conviction recorded by the trial Court was interfered by the
Hon'ble High Court of A.P., by setting aside the Judgment. Then the state went in
appeal before the Hon'ble Supreme Court of India by filing a criminal appeal and the Hon'ble Supreme Court of India had an occasion to deal with the above said sanction. It is a case where the sanction order was also issued by order and in the name of Governor of Andhra Pradesh and it has been issued by the state in discharging of its statutory functions in terms of Section 19 of Prevention of
Corruption Act. The Hon'ble Supreme Court held that the said order of sanction was a statutory action of state having been issued in the name of governor and it is authenticated and its authenticity has not been questioned and as such it was a public document within the meaning of Section 74 of Indian Evidence Act. The facts are also that the prosecution had not examined even the signatory under the said sanction namely Sri N. Madan Mohan Reddy, the Secretary to the State
Government. But the prosecution examined P.W.6 who was a Section Officer and who got acquaintance with the signature of Sri N. Madan Mohan Reddy. The
Hon'ble High Court of A.P. held that the said witness identified the siganature of N.
Madan Mohan Reddy and it is not that he was not able to identify the signature of said person.
21.Now turning to the present case on hand, it is not that P.W.39 is not capable of identifying the signature of the signatory under Ex.P.93. According to the decision of the Hon'ble Supreme Court it is not irregular to examine a Section
Officer like P.W.39 who is acquainted with the signature of the signatory under
Ex.P.93. So examining a person like P.W.39 to prove a GO which has been issued by order and in the name of the governor of a State is permissible. Having regard to the above, I am of the considered view that Ex.P.93 undoubtedly shows the application of mind by the sanctioning authority and P.W.39 duly identified the signature of the Principal Secretary to the Government namely T. Chatterji under
Ex.P.93 and Ex.P.93 has been issued in exercise of the statutory functions of the state in terms of Section 19 of Prevention of Corruption Act. Hence, I hold that the prosecution has proved clearly that the investigating agency obtained a valid 17 sanction under Section 19 of Prevention of Corruption Act for prosecution of AO
before this Court for the offence alleged under Section 13 (1)(e) read with 13 (2) of
Prevention of Corruption Act. Hence, these two points are answered accordingly in favour of the prosecution.
22. Points 3 to 5:
The learned Special Public Prosecutor filed his written arguments. In his written arguments he touched the A.P. Civil Services (Conduct) Rules, 196. His contention in substance is that a member of the family in relation to a Government employee includes the spouse, son, daughter, step son or step daughter, whether residing with such employee or not and only dependent on such employee as per
A.P. Civil Services Conduct Rules, 1964. Section 13 (1)(e) deals with a situation when a public servant can be said to have committed criminal mis-conduct. As per the explanation to Section 13 (1)(e) of Prevention of Corruption Act the prosecution is relieved of the burden of its investigating into source of income of an accused to a large extent. The explanation known sources of income means the income received from any lawful source and the receipt of which has been intimated in accordance with the provisions of law, rules, orders of the time being applicable to a public servant. Section 13 (1)(e) is applicable when public servant or any person on his behalf is in possession or has at any time during the period of his office been in possession for which he can not satisfactorily account for known sources of income. The Government employee may give or accept from relative or a personal friend a purely temporary loan of small amount free of interest but not in the ordinary course of business to lend or borrow or deposit amounts from private persons according to A.P. Civil Services (Conduct) Rules. In view of explanation 13 (1)(e) of Prevention of Corruption Act, the Civil services Conduct
Rules applicable to a public servant have to be considered to ascertain as to whether the receipt of income has been duly intimated to the Government as per the Civil Services Conduct Rules. The learned Special Public Prosecutor with reference to the explanation 13 (1)(e) of Prevention of Corruption Act, relied on P.
Nallammal etc., Vs. State represented by Inspector of Police 1999 Cr.L.J.
3967 (SC) and State of Madhya Pradesh Vs. Awad Kishore Gupta 2004(1) 18
ALD (Crl) 690 (SC).
23.The substance of the contention of the Special Public Prosecutor is that the AO did not comply A.P. Civil Services (Conduct) Rules, 1964 and that he indulged in purchasing the properties in the name of him and his wife and others without complying the A.P. Civil Services Conduct Rules.
24.On the other hand, the contention of the learned counsel for AO in substance in this regard is that the AO duly intimated the acquisition to the department in accordance with the rules and law and he obtained prior permission from the department to purchase the properties and if he did not obtain any prior permission the department would have initiated necessary disciplinary action against AO.
25.According to Section 13 (1)(e) of Prevention of Corruption Act a public servant is said to have committed the offence of criminal mis conduct- if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant can not satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. In the light of the explanation appended to Section 13 (1)(e) known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. According to the prosecution A.P.
Civil Services (Conduct) Rules, 1964 enjoins that a public servant can not indulge in purchasing immovable properties without any prior permission from the
Government etc., As Section 13 (1)(e) of explanation has a direct reference with regard to the rules that are being applicable to the public servant and as it is the case of the prosecution that AO did not comply the conduct rules in purchasing the properties it becomes necessary for the Court firstly have a look as to who is the member in relation to the family of AO and as to what are the rules that are applicable to the public servant regarding purchasing of immovable properties etc.,
Under the circumstances, I would like to refer here certain rules in A.P. Civil
Services (Conduct) Rules, 1964 touching the contentions.
26. According to A.P. Civil Services Conduct Rules 2 (v) it deals with as 19 to who is member of the family of a public servant. It provides that “member of family in relation to a government employee includes the spouse, son, daughter, step son or step daughter of such employee, whether they are residing with such employee or not. It also adds that member of family in relation to Government employee means 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 derived by law”.
27.Here, the case of the prosecution is that immovable properties are standing in the name of AO, his wife and also in the name of his father, brother-in- law etc., Here it is also the case of the prosecution that certain deposits were also made in the name of wife and daughters of AO. So the wife and daughters of AO are no other than the family members of AO according to the above definition. It is the case of the accused that the father of AO was having ancestral property around 10 or 11 acres and it is not in dispute. It is not the case of the prosecution that the father of AO is dependent upon the AO. Under the circumstances, the case of the prosecution is that the AO purchased immovable properties and other movable properties even in the name of his father-in-law, brother-in-law and others. So the above contention of the prosecution is to be appreciated to decide as to whether the above persons are the benamies of AO. So the wife of AO and his daughter are no other than the family members.
28.Coming to Rule 8 of A.P. Civil Services Conduct Rules, 1964 “No
Government employee shall, save in the ordinary course of business with a bank or a public limited company, himself or through any member of his family or any person acting on his behalf – lend or borrow or deposit money as a principal or agent to, or from, with, any person or firm or private limited company within the local limits of his authority or with whom he is likely to have official dealings or otherwise place himself, under pecuniary obligation to such person. It provides that no government employee shall lend any amount to any person on interest.
29.Coming to Rule 9 (1) of A.P. Civil Service Conduct Rules “No 20
Government employee shall, except after previous intimation to the Government, acquire or dispose of, or permit any member of his family to acquire or dispose of, any immovable property by exchange, purchase, sale, gift or otherwise, either by himself or through others. The proviso to Rule 9 provides that any such transaction conducted otherwise than through a regular or reputed dealer shall be with the previous sanction of the Government. So according to Rule 9 coupled with the proviso if at all any Government employee wants to acquire or dispose any property either in his name or in the name of his family member from any private person the previous sanction of the Government is necessary. Further a duty is also cast upon the Government employee that he shall not permit any member of his family to acquire or to dispose any immovable property from any persons without prior sanction from the Government.
30.Turning to 9 (7) of A.P. Civil Service Conduct Rules, 1964“Every
Government Employee, other than a member of the Andhra Pradesh Last Grade
Service and a Record Assistant in the Andhra Pradesh General Subordinate Service, shall on first appointment to the Government service submit to Government a statement of all immovable property irrespective of its value and movable properties whose value exceeds Rs.5000/- (it is being changed from time to time).
It further provides he shall also submit to Government before 15th January of every year, a declaration in the form given in the annexure of all immovable properties owned, acquired or inherited or held by him by on lease or mortgage, either in his own name on in the name of any member of his family or, in the name of any other person. It is to be noticed that Annexure I of A.P. Civil Services (conduct) Rules, 1964 is pertaining to Statement of immovable property. Similarly Annexure II is relating to the statement of movable properties. Annexure I contains eight columns. It shows that if a government servant purchased immovable property with the prior sanction of the Government and if he submitted a property statement in the following year or subsequent year he should invariably mention the reference number and date under which he obtained prior sanction.
31.The prosecution is alleging that item No.1 of the asset is a commercial complex in the name of the wife of AO and Item No.2 is the developments made on 21 the said house (item No.1). Item No.3 is the house site in the name of AO. Item
No.4 is a flat constructed by the builder on the above total site and Item No.5 is the development made in the above flat. Item No.6 is said to be in the name of brother-in-law of AO. Item No.7 is the agricultural land in the name of wife of AO.
Item No.8 is the agricultural land in the name of father of AO. Item No.9 is the commercial complex in the name of father of AO. Item No.10 is house site said to be purchased in the name of wife of AO. Item No.11 is the another house site purchased in the name of father of AO. So according to the prosecution item Nos.1 to 11 are the immovable properties. The check period is between 8-11-1993 to 9- 4-2002. The case of the prosecution is that item No.1 of the asset was purchased on 17.11.2000. Asset under Item No.3 was purchased on 13-12-2000. The development agreement for Item No.4 was on 21-12-2000. Item No.6 was constructed in the year 2001-02. Item No.7 was purchased on 14.5.2001. Item
No.8 was purchased on 14.5.2001. Item No.9 was purchased on 20-3-2002. Item
No.10 was purchased on 4-10-2000 and Item No.11 was purchased on 31-1-2001.
Here I would like to make it clear that brother-in-law, father and father-in-law of
AO are not the members of the family in relation to AO as this Court already pointed out. It is all together a different aspect as to whether the prosecution is going to prove that the properties standing in their names are purchased by AO in the name of benami. Hence, I would like to firstly deal with as to whether AO is able to probablise that the immovable properties 1, 2, 3 to 5, 7 and 10 i.e., in the name of his wife and in his name were purchased duly in accordance with the rule 9 of A.P. Civil Services Conduct Rules.
32.Coming to the evidence of P.W.40 he deposed that AO did not obtain prior permission from the competent authority as contemplated under Rule 9 of A.P.
Civil Services Conduct Rules, 1964 for purchasing item No.1 and development for item NO.2 and other properties. Coming to the evidence of D.W.20 who is no other than the AO, he deposed that he intimated to his department about the acquisition of properties by his wife by way of property statements. Here I would like to make it clear that the documentary evidence relating to the so called property statements of AO are Ex.P.33, P.53 and Ex.P.21. Ex.P.33 is said to be seized in the house of AO 22 at the time of house search. Ex.P.53 is secured by the investigating agency during the course of investigation. Ex.D.21 is filed during the course of defence evidence.
33.Now turning to Ex.P.33 it contains certain copies of the so called property statements pertaining to the years 1999, 2000, 2001. It contains at Page
No.6 the purported proceedings of the Principal Chief Conservator of Forests,
Andhra Pradesh, Hyderabad dt.4.10.2001. It reads that the AO was permitted to purchase an apartment at the cost of Rs.3 lakhs. The sources are said to be Rs.2 lakhs from S.B.I., Narsipatnam to be borrowed and Rs.1 lakh as agricultural income. There is a caution that the responsibility for correctness or otherwise of the above transaction and sources of income lies with Forest Range Officer and this
Department will not take up any responsibility for the same. Here, I would like to make it clear that page No.6 of Ex.P.33 is pertaining to asset No.4 i.e., a flat constructed by the builder in asset No.3. It is the case of the prosecution that the
AO purchased item No.3 of the house site measuring 50.10 Sq.Yds vide Doc No.
2561/2000 dated 13-12-2000 of S.R.O., Narsipatnama for a sale consideration of
Rs.13,000/-. It is also the case of the prosecution that AO entered into an agreement with the builder for the purpose of construction of a flat with two bed rooms in the above said undivided site which is part of 501 sq. yards. According to
P.W.1 the development agreement was dt.21-12-2000 and it was also registered as document No.4/2000. Item No.5 is said to be certain developments made in the item No.4 i.e., the apartment. So the fact is that AO purchased Item No.3 of the vacant site on 13.12.2000 under a registered sale deed and entered into registered agreement with builder on 21.12.2000. Page No.6 of Ex.P.33, dt.4.10.2001 was issued on the basis of requisition of AO dt.5.9.2001. So it is quite clear that AO after purchasing item No.3 of the asset and after entering into registered development agreement with the building on 21.12.2000 seems to have obtained permission on 4.10.2001 as if he is going to acquire immovable property. So as on the date of 13.12.2000 and 21.12.2000 there was no permission granted to AO and even there was no application made by AO before purchasing item No.3 of the asset and before entering into transaction in respect of item NO.4. By any stretch of imagination the said proceedings dt.4.10.2001 does not comply the mandatory 23 requirement of obtaining prior permission from the government before purchasing immovable property from a private person as enjoined in Rule 9 of A.P. Civil
Services Conduct Rules. So item No.3 to 5 are concerned AO failed to show that he duly complied the directives of A.P. Civil Service Conduct Rules.
34.As seen from item No.1 of the immovable property it was purchased in the year 2000. As seen from Ex.P.33 the copies of property statements pertaining to the year 2000, it does not contain that AO obtained prior permission from the
Government to purchase item No.1 of the asset in the name of his wife. What AO referred is the proceedings of the bank that it is willing to give loan to his wife.
Further as seen from Ex.P.33 and Ex.P.53 enclosed to property statements and
Ex.D.21 enclosed property statements virtually AO did not obtain prior permission for purchasing the property under item No.7 i.e., agricultural land and acquisition of item NO.10 of the house site in the name of his wife. Item No.7 was purchased on 14.5.2001. Item NO.10 was acquired on 31.1.2001. As seen from Ex.P.33 it contains the copy of the property statement of the year 2001. It never discloses that the AO obtained any prior permission for purchasing the said properties. It does not refer the proceedings of the Government under which the AO obtained prior permission. Just it refers the proceedings of the so called bank granting loan to wife of AO. So it is quite clear that the above immovable properties were purchased from private persons in the name of AO and his wife.
35.As seen from Ex.D.21 it is marked by virtue of the examination of
D.W.13. D.W.13 is a Senior Assistant in the office of D.F.O., Kakinada. He is deputed to this Court to produce service register of the accused along with annual property statements. According to him today (on the date of his examination) he is producing Original Service Register along with attested copies of annual property statements which are available in the service register. The said statements are pertaining to the period from 1996 to 2001. The service register is required in office. That's why they are also producing the attested copies. The District Forest
Officer attested the relevant annual property statements. Ex.D20 is the copy of covering letter. Ex.D21 is the attested copies of annual property statements (17 sheets).
24
36.Now this Court has to verify as to whether Ex.D.21 probablise the contention of the AO that he duly obtained permission for purchasing immovable properties in his name and in the name of his wife. As seen from Ex.D.21 it contains the proceedings dt.4.10.2001 relating to purchasing of apartment under asset No.4 as this Court already pointed out the said proceedings are no other than page No.6 of Ex.P.33. As this Court already pointed out it does not advance the case of the AO.
37.Now turning to Ex.D.21 there is purported letter of AO to the
Conservator of Forests, Visakhapatnam stating that his wife purchased the asset
No.1 for Rs.9,60,000/- by obtaining loan of Rs.7,20,000/- from Bank of India,
Anakapalli and it is hypothecated to bank of India at Anakapalli and his wife taken loan of Rs.90,000/- from one Rajana Apparao and an amount of Rs.1,50,000/- was given to his wife by her father from his agricultural income and all the above things came to his notice after everything was done. It is mentioned that the details of purchase of old house at Anakapalli by his wife will be shown in the property statement pertaining to 2000 and the necessary permission will be sought from the competent authority in this regard. Virtually the above said letter does not show that prior permission was obtained. It is quite irregular to intimate to the Superiors that in respect of the property purchased by his wife without prior permission the permission will be sought in future. The above said letter is said to be forwarded by
District Forest Officer to Conservator of Forests. In my considered view it is not in compliance of Rule 9 of A.P. Civil Service Conduct Rules.
38.Turning to another letter of AO it is pertaining to purchase of 12.81 cents of land in the name of his wife and according to the said letter his wife obtained loan of Rs.4 lakhs from the Bank of India, Anakapalli and his father given remaining Rs.90,000/- to his wife and all the things have come to his notice after everything was done. It is also runs that the permission will be obtained from the competent authority in future. The above said letter is forwarded to the
Conservator of Forests. It is not that AO and his wife are residing separately. It is a matter of appreciation that as to whether the wife of AO can do said transaction without notice of AO. It is quite improbable to give such a finding. So own 25 document produced by AO goes to show that he did not obtain prior permission to purchase the so called asset No.1 and land in the name of his wife and further the house site. Property statement of the year 2001 does not disclose that prior permission was obtained to acquire the immovable property in the name of wife of
AO i.e., item No.10. As seen from some of the movable assets sought to be tagged to the AO, his wife and his children the case of the prosecution is that in item No.13 fixed deposits to a tune of Rs.45,000/- each stands in the name of wife of AO. Further it is the case of the prosecution that in respect of assets in Item
No.14 the deposits are in the name of children of AO and further in respect of item
No.17 they are also in the name of the children of AO. As verified from the copies of property statements as above those does not contain the details of these investments. Though the AO is not supposed to obtain prior permission for making fixed deposits in the bank or a public limited companies in view of Rule 8 of A.P.
Civil Rules Conduct rules but he was duty bound to intimate about the factum of deposits in Annexure II of A.P. Civil Service Conduct rules to the Government ending with the year. These are not mentioned in the statement. Under the circumstances, I am of the considered view that AO miserably failed to probablise his contention that he purchased the immovable properties either in his name or in the name of his wife and further duly intimated to the Government about the factum of deposits in financial institutions i.e., banks, public limited companies and private companies in the name of him, his wife and children. Under the circumstances, I am not convinced to accept the contention of defence on behalf of
AO that the AO duly complied AP Civil Service Conduct Rules and he did not violate the AP Civil Service Conduct Rules. The evidence on record does not warrants this
Court to give a finding that AO duly complied A.P. Civil Service Conduct Rules in purchasing the properties.
39.As this Court already pointed out when the AO filed a Criminal Petition
No.11649/2010 to quash the present case, the Hon'ble High Court of A.P., dismissed it with certain observations. Before proceeding to appreciate the contentions relating to assets, expenditure and income as shown by the prosecution and the contentions advanced on behalf of the AO regarding his other sources of 26 income, the sources of income of his wife and father etc., I would like to give appropriate findings regarding G.O.Ms.No.13, Dt. 27.01.2006, G.O. No.104, dt.10.10.2007 and GONo.156 dt.28.11.2008 as the Hon'ble High Court of A.P. while dismissing the petition at page No.9 of the order given an observation that the validity and effect of the above mentioned three G.Os have to be examined by the learned trial Court during the course of trial.
40.There is no dispute that under the cover of Ex.P.93 the Government was issued sanction so as to prosecute the AO. The sanctioning authority had taken into consideration the assets alleged to be purchased by the AO in the name of his father and family members and issued the same. During the course of cross examination of P.W.39 Ex.X.1 and X.2 are marked. Ex.X.1 is the xerox copy of
G.O.Ms.No.104, dt.10.10.2007 and EX.X.2 is the memo No.5547/FOR IV (1)2002- 9, dt.25.1.2008 intimating the Director General, Anti Corruption Bureau that the order in G.O.No.104, dt.10.10.2007 was issued by following the procedure. It is to be noticed that according to EX.X.1 when the accused made a representation subsequent to this Court taking cognizance of the case against him, the government issued EX.X.1 by deleting the assets, income and expenditure of the family members and others at their own risk from out of their own sources of income and responsibility. In other words the expenditure, income and assets of his family members and others can not be held to be attributed to AO as per the said GO. There is also no dispute as evident from the order of the Hon'ble High
Court in Crl.M.P.No.11649/2010 that when the ACB has sought to refer the matter to law department for opinion and it was referred to law department and the law department considering the judgments of Apex Courts and various High Courts issued G.O.156, rescinding G.O.Ms.No.104, dt.10.10.2007. So the order under
Ex.X.1 is not in force. Virtually Ex.X.1 was issued though this Court taken cognizance basing on Ex.P.93. It is not known as to how said GO came to be issued when the matter has been seized before a competent Court of law. When the matter has been seized before this Court the issuance of Ex.X.1 appears to be some what irregular. However, the so called G.O.156 is not brought in evidence. There is no dispute about the contents of the said GO and effect of said GO rescinding the 27
GO Ms.No.104, dt.10.10.2007. It is not that GO 104, dt.10.10.2007 was issued considering the opinion of the ACB. It was issued merely basing on a representation of the accused and the GO does not reveal that whether the
Government had taken into consideration of the fact that the matter had been seized before this Court as this Court had taken cognizance. When the Court had taken cognizance on perusing the material available on record and further basing on Ex.P.93 there should not have been any parallel enquiry so as to delete the assets in the name of the wife, father and other family members of AO. Under the circumstances, I am of the considered view that simply because the Government issued G.O.Ms.No.104, dt.10.10.2007 which was later rescinded, it can not be held that the assets in the name of the wife of AO and father of AO have to be deleted.
Under the circumstances I am of the considered view, that it is ultimately for the prosecution to establish and to tag the assets, expenditure and other income in the name of the wife of AO and the father of AO and others to AO. This Court has no reason to say that issuance of G.O.Ms.No.156, dt28.11.2008 is irregular. Under the circumstances, I would like to appreciate the contentions factually as to whether the assets sought to be tagged to the AO which are in the name of his wife, father and others can be tagged to AO.
41.Now I would like to refer here the investigation part. According to
P.W.40 he is retired as Addl. Superintendent of Police. Previously he worked as
Inspector of Police, ACB, Visakhapatnam from 28-08-2001 to 03-06-2004. During his tenure on 06-04-2002 he registered FIR in Cr.No.5/RC-WLR/2002 under section 13(2) r/w 13(1) (e) of Prevention of Corruption Act basing on occurrence report.
He registered the said FIR after obtaining the proceedings of the Special Director,
ACB, Hyderabad. Ex.P94 is the original FIR. Ex.P95 is the occurrence report, Dt.
06.04.2002. Ex.P96 is the proceedings of the Special Director, ACB, Hyderabad
dated 04-04-2002. On 06-04-2002 he obtained the search warrants nine in
number from the court to search different places. On 09-04-2002 he conducted search at the residential premises of AO situated in D.No.5-37-1 belonging to Sri
Vemulapudi Narsimha Murthy near Singh Doctor hospital, K.D.Peta road,
Narsipatnam in the presence of PW17 and LW.82 P.V. Udhay Bhasker. He got 28 prepared Ex.P46 inventory report. During the search he seized Ex.P47 to P55 made-up files. On the same day he also searched office premises of AO near
Degree college, Chintapalli road, Narsipatnam and did not seize any incriminating material. On the same day Inspector, ACB, K.V.Rama Krishna Prasad searched the residential premises of Jagarapu Lalith kumari, w/o of AO at Anakapalli and got prepared Ex.P28 in the presence of PW15 and LW84 K.Lakshmana Rao. He seized
Ex.P29 to 37 made-up files. On the same day he proceeded to the residential house of Lalam China kondayya at Anakapalli and conducted search. He got prepared Ex.P38 and seized Ex.P39 to 43 in the presence of PW15 and LW84. On the same day Inspector Raja Rao, ACB conducted search at the house of Lalam
Satyavati opposite to Chitanya Medical Center, Visakhapatnam and got prepared inventory report and seized documents. On the same day Inspector Venkateswarlu,
ACB, Rajamundry conducted search at the residential premises of Y. Aruna Kumar at Narsipatnam and seized two files. On the same day Inspector Venkata Rao,
ACB, Visakhapatnam conducted search at the house of Ramayamma, W/o Ramu murthy, private assistant to AO situated at Kotturu village of Golugonda Mandal,
Visakhapatnam District and seized one file. On the same day Inspector I.Trinada rao, ACB, Kakinada conducted search at the house of Jagarapu Apparao at
Pylavanipuram, Lalam Koduru, Rambilli mandal and did not seize any incriminating material. On 21-06-2002 he obtained search warrant from the court to search locker No.13 and 30 of State bank of Hyderabad, Anakapalli. Accordingly he searched the said lockers in the presence of LW85 Ch. V.V. Satyanarayana Murthy and LW86 K.V.Surya Sekhar Rao, AO and his wife and seized gold ornaments under the cover of inventory. Ex.P97 is the mediators report dt. 21-06-2002.
The gold ornaments were weighed by securing a gold smith from Srinivasa
Jewelers. The value of the gold ornaments and year of acquisition was mentioned in Ex.P97 as stated by AO and his wife. He also seized two made-up files in locker No.13. Ex.P98 is made-up file containing 76 sheets relating to original registered sale deed documents of AO. Ex.P99 is made-up file containing 18 sheets relating to house tax receipts, cheque book, LIC bond papers and UTI receipts etc., The second locker bearing No.30 was also opened by Smt J.Lalitha 29 kumari @ Uttara kumari with the key available with her and it was found empty.
Both the locker keys were returned to Smt. Lalitha Kumari. P.W.40 further deposed that Sri Jagarapu Apparao, father of Sri Ganesh (AO) is the native of
Pylavanipuram, Rambilli Mandal and was marginal of farmer blessed with a dautghter Satyavathi and two sons Ganesh and Ramakrishna and all of them got married. The AO graduated in B.Sc in 1985 and from 1985 to 1989 worked on commission basis for a meager salary of Rs 1200/- in Kohodey Distilleries
Distributor, Habsiguda, Hyderabad. The AO married Smt. Lalam Lalitha Kumarai, only daughter of Sri Lallam China kondaiah, an attender working in Revenue
Department at Anakapally. The marriage took place on 10-08-89. Sri China kondaiah gave 48 Sq.Yds valued Rs.12,300/- situated in ward No. 4,
Narsingaraopeta, Near telephone Exchange, Anakapalle to Lalitha Kumari as
Pasupukumkama. The second son was helping his father in agricultural operation.
The daughter Satyavathi was given in marriage to an advocate who died in young age in 1985 and Satyavathi the widower was living with her two sons in
Visakhapatnam. He further deposed that Jagarapu Ramaiah father of Sri Jagarapu
Apparao was blessed with two sons 1. Apparao and 2. Ramulu and a sister. Sri
Apparao and his brother inherited about 8 acres dry land and 3 acres of wetland and a portion in an old tiled house each and they were separated in the year 1993.
There is no source of water for the lands and completely depends on rain only. The
AO is blessed with three daughters 1. Jahnavi 2. Sindhuja and 3. Bhargavi whose dates of birth are 21-3-91, 5-11-92 and 27-1-98 respectively. The AO entered government service as Forest Range Officer through Andhra Pradesh Public Service
Commission and underwent training at Bhalghat, Madyapradesh State from 8-11-93 to 31-10-95. Prior to entering the government service, the AO had worked in a beverages company at Hyderabad for meager salary after completion of his graduation in 1985 and was selected as Assistant in Life Insurance Corporation of
India and worked at Kodad, Nalgonda District from 11/90 to 10/93. For reckoning the Assets, Income and Expenditure of the A.O the check period is taken from the 08–11-1993 (i.e. the date of entry into service by AO ) to 09-04-2002 (i.e the date of searches of the house of A.O. and his relatives etc). The proforma I to VI 30 statements were sent to the Conservator of Forests, Visakhapatnam on 01-05-02 with a request to forward the same to the Accused Officer and to resubmit the filled in proforma statements to the investigating officer. During the course of investigation he made correspondence with PW20 and he issued letters Ex.P54 and P55 relating to Annual property statements and permissions. During investigation LW121(PW19) furnished Ex.P53 regarding property statement. After completion of investigation on 16-04-04 a Statutory Notice was served on the
Accused Officer in respect of the assets acquired by him, income received and expenditure incurred by him with a request to offer his explanation item wise. The
Accused Officer submitted his explanation on 9-2-05 after lapse of nearly one year inspite of issuing reminders Investigation disclosed that A.O acquired Assets as shown in the charge sheet, derived Income and incurred Expenditure during the check period from 08-11-93 to 09-04-02 in his name, in the name of his wife Smt.
Lalitha Kumari, in the name of his father Sri Jagarapu Apparao, his daughters and brother in law Sri Lalam Prabhakara rao. This is the substance of evidence of P.W.1 with regard to his investigation in this case.
42.It is the contention of the learned counsel for AO that the investigation was conducted by P.W.40 with all prejudice and he did not investigate the case properly and he tried to collect negative evidence and several representations were made to the Director General, ACB to change the Investigating Officer but in vain.
Here, I would like to make it clear that this a disproportionate assets case. The investigation conducted by P.W.40 is voluminous in nature. One can not proceed in the investigation with all mathematical certainty. The so called representations sent by AO to the D.G., A.C.B., Hyderabad appears to have been not taken into consideration. Simply because the AO sent several representations to D.G, ACB, complaining against P.W.40 it can not be held that the investigation is defective.
What this Court now has to see is that whether the prosecution is able to prove its case with the evidence available on record.
43.Now I would like to appreciate the case of the prosecution with reference to the abstract of the assets in Annexure-I, abstract of expenditure under
Annexure-II, abstract of income in Annexure-III and further the other income 31 sources pleaded by the accused for himself and his family members.
A S S E T S
44. Item No.1: This is a commercial complex styled as Bhargavi
Plaza at Anakapalli in the name of wife of AO and its value is shown as
Rs.9,60,000/-:
P.W.40 deposed that the A.O had purchased commercial complex covering ground floor and Ist floor with a built up area of 2760 Sq. Ft in the site admeasuring 157.3 Sq. yards at D.No.4-3-33, Assessment No.3556/4, Sy.No.364,
Woodpeta, Anakapalle in the name of his wife vide Doc No.3345/2000 dated 17-11- 2000 of S.R.O., Anakapalle for a sale consideration of Rs 9,60,000/-. Ex-P100 is the certified copy of the document No.3345/2000, dt.17-11-2000. During investigation he examined and recorded the statement of LW -10 Sri Addala Rama
Mohan Rao, LW- 11 Sidda Venkata Rajendra Prasad and LW-52 (PW32) S.V.B.H.
Vasantharayulu. Ex-P79 is the copy of the evaluation report already marked.
During cross examination he denied that Item No.1 and 2 of the assets belonged to wife of AO and that she acquired the said assets with her legal sources of income. He denied that the wife of AO incurred only Rs.6,41,000/- in respect of asset number 2.
45.The learned Special Public Prosecutor contended that this asset was purchased by AO in the name of his wife under Ex.P.100 and later he made developments of the building at the cost of Rs.8,20,000/- which is item No.2 and the cost of the building was evaluated under Ex.P.101.
46.The learned counsel for the AO contended that item No.1 of the asset was purchased by the wife of AO i.e., D.W.18 for an amount of Rs.9,60,000/-.
Though P.W.40 examined Addala Ram Mohana Rao (L.W.10) but the prosecution failed to prove through L.W.10 about the said allegation. According to EX.P.100 it was sold to D.W.18 by L.W.10. An amount of Rs.7,20,000/- was borrowed by
D.W.18 from Bank of India. The said income was considered by the IO. D.W.18 shown the said asset in her IT returns. An amount of Rs.1,50,000/- was transferred from the account of D.W.19 to the account of D.W.18. Ex.P.106 is the statement of account of D.W.19 and Ex.P.107 is the statement of account of 32
D.W.18. She received Rs.90,000/- by way of cheque from Rajana Apparao (D.W.5).
Ex.P.107 also reflects the clearance of cheque. It was also shown in income tax returns in Ex.P.56 at Page No.16. D.W.18 deposed the same and it was substantiated by D.W.19 and D.W.15. The property statement also reveals the same.
47.By virtue of the evidence of P.W.40 coupled with Ex.P.100 there is no dispute that this property stands in the name of wife of AO for the value of
Rs.9,60,000/-. The wife of AO is no other than member of the family of AO.
Whether the wife of AO has sources to purchase this property will have to be ascertained during the course of further appreciation relating to the income claimed to the wife of AO. Hence, this asset can be tagged to the AO for the value of
Rs.9,60,000/- as such it is tagged to the AO.
48. Item No.2: Developments made on item No.1 of the asset and its value is shown as Rs.8,20,000/-.
According to P.W.40 the AO after purchasing the above complex made certain developments. LW-53 the Deputy Executive Engineer, Anti-Corruption
Bureau, Sri Vijaya who inspected the said complex on 24-07-02 took detailed measurements of the new developments of the complex in the presence of the
A.O’s wife and evaluated the cost of construction of developments of the building to Rs.8,20,000/- after excluding the cost of the purchased value of the building .
Ex-P101 is the report of D.D. Engineering dated 31.03.2003. Hence the cost of development of the building Rs 8,20,000/- is added to the asset of A.O. As this
Court already pointed out P.W.1 denied the case of the AO during cross examination that the worth of the developments in item No.1 of the property is only
Rs.6,41,000/-.
49.The Special Public Prosecutor relied on Ex.P.101 and contended that the worth of asset No.2 under developments to asset No.1 is Rs.8,20,000/-.
50.The learned counsel for AO contended that the Deputy Director (Engineering), ACB is said to have prepared Ex.P.101 which has no substantial value. According to the wife of AO D.W.18 she spent only Rs.6,41,000/- towards development and her elder brother who was a contractor attended the said work.
33
She could not examine her brother as he is no more. She got evaluated item No.2 of the asset by one Sri Khalila who is also no more and the said report was also marked as Ex.D.27. D.W.18 is the right person to speak about the expenditure incurred for the said development. P.W.32 who is examined by the prosecution deposed that after due verification of the building he submitted Ex.P.79 mentioning the details. The value of item No.1 and 2 according to P.W.32 is Rs.13,50,000/- which is less than the value shown in Ex.D.27. According to D.W.18 the cost of item No.1 and 2 comes to Rs.9,60,000 + Rs.6,41,000= Rs.16,01,000/-. The valuation shown by D.W.18 can not said to be unreasonable. She taken loan of
Rs.5,50,000/- from D.W.19 and deposited in State Bank of Hyderabad, Anakapalli and taken loan of Rs.5,10,000/- to meet the expenditure. It was shown in her IT returns and it was also shown in AO's annual property statements.
51. Coming to the evidence of P.W.32 he is working as an Architect of
Vasanth Rayulu and Associates. He is registered Panel valuer for Bank of India. In response to the letter of Branch Manager, Bank of India he valued the property in the name of Smt. Jagarapu Lalith kumari, W/o J.Ganesh situated in D.No.4-3-33,
Wood peta, Ward No.4, Anakapalli, Visakhapatnam. He discussed in detail in his valuation report of the said property and indicated the value as arrived at
Rs.15,00,000/- and the distress value is of Rs.13,50,000/-. Ex.P79 is the copy of the valuation report attested by him. During cross examination he deposed that he inspected the building on 10.03.2003. After due verification of the building he submitted Ex.P79 mentioning the details there in.
52. As seen from Ex.P.79 virtually the so called report of Vasanth Rayulu and Associates is after ACB raid. It appears that when the investigating agency corresponded with the bank with regard to the loan applied by Jagarapu Lalitha
Kumari, the bank authorities instructed the Vasanth Rayulu and Associates to make evaluation for the purpose of bank security. The context of the inspection made by
P.W.32 is totally different i.e., from the point view of security only. Under the circumstances, I am not inclined to give any weight to Ex.P.79. On the other hand,
Ex.P.101 is the report made by Deputy Executive Engineer, ACB in the presence of wife of AO and he inspected the building and made his report. It is to be noticed 34 that the investigating agency made certain exercise by getting inspected the building by a competent Engineer and the building was inspected in the presence of wife of AO according to the evidence of P.W.40. It is a case where the accused is disputing the amount shown by the prosecution to a tune of Rs.8,20,000/- and is contending that its value is only Rs.6,41,000/-. It is to be noticed that when such is the case of the accused, it is for him to show the details of expenditure incurred in this regard. Having regard to the facts and circumstances, I am of the considered view, it is reasonable to take the value of developments under asset
No.2 as that of Rs.8,20,000/- as shown by the prosecution. The developments under item No.2 is to asset No.1. Hence, the value of the developments under item
No.2 is treated as Rs.8,20,000/- and it is tagged to the AO as the wife of AO is no other than the member of family in relation to AO.
53. Item Nos.3 to 5: Item No.3 is that AO has purchased house site ad-measuring 50.10 sq. yards out of 501 sq. yards in S.No.21/1 of Saradanagar,
Narsipatnam and its value is shown as Rs.13,000/-. Item NO.4 is that AO purchased a flat constructed by the builder in item No.3 and its value is shown as
Rs.3,00,000/-. Item NO.5 is shown as the development made by AO in the above flat under item NO.4 and its value is shown as Rs.50,000/-.
P.W.40 deposed that the A.O. had purchased house site ad-measuring 50.10 Sq. yards from out of 501 sq. yards in Sy.No.21/1, Ward No-3, Block No.3,
Sarada Nagar, Narsipatnam in his name vide Doc No.2561/2000 dt.13-12-2000 of
S.R.O., Narsipatnama for a sale consideration of Rs 13,000/- Ex-P1 is the certified copy already marked. Hence the consideration value of the site Rs.13,000/- is added to the asset of A.O. He further deposed that the A.O. had entered into an agreement with the builder LW-1 Sri Adapureddy Appala Naidu s/o Venkanna, r/o
Pedaboddepalli, Narsipatnam mandal along with other plot owners for Construction of Flats with two bed rooms in built up area of 1000 Sq. Ft in 501 Sq.Yds mentioned above item no.3 styled as Gopal Enclave on 21-12-2000 and the AO has been allotted Flat No.B, Ground Floor for Rs.2,00,000/-. The agreement was registered vide document no.4/2000 at the O/o Sub Registrar Office, Narsipatnam. During investigation he has examined and recorded the statement of PW-1. Hence the 35 agreement value of the site Rs.3,00,000/- is added to the asset of A.O. He also further deposed that the A.O. after purchasing the above flat made certain developments. LW-54 the Deputy Executive Engineer, Anti-Corruption Bureau, Sri
Vijaya who inspected the said house on 23-07-2002 took detailed measurements of the new developments of the house bearing door No.3-170, Sarada Nagar,
Narsipatnam in the presence of representative of A.O and noticed certain additions and alterations worth Rs 50,000/-. Ex- P101 is the report already marked. Hence the cost of development of the house Rs 50,000/- is added to the asset of A.O.
During cross examination he denied that in respect of Item No.3 to 5 AO spent only
Rs.3,00,000/- even as per the material collected by him. He accompanied the
Deputy Director, Engineering, ACB at the time of assessment of the value of Item
No.2 and 4 of the assets. He do not remember whether AO was present at that time. He denied that Ex.P101 was prepared by Deputy Director at his instance showing the excess value. He do not remember whether AO enclosed the valuation report made by S.A.khalia valuer in respect of asset no.2 along with explanation to him.
54.The Special Public Prosecutor contended that item No.4 has been allotted for Rs.2 lakhs under registered agreement. The value shown in agreement was shown as Rs.3 lakhs and AO made development in item Nos.3 and 4. The cost of alterations and additions were mentioned in Ex.P.101.
55.The learned counsel for AO contended that P.W.1 sold the property to
AO for Rs.3 lakhs under Ex.P.1 certified copy of sale deed. The prosecution has shown Rs.50,000/- separately for development and also Rs.13,000/- for the site.
P.W. 1 turned hostile to the case of the prosecution and his evidence is clear that the total value of the assets including site was Rs.3,00,000/-.
56.Coming to the evidence of P.W.1 he deposed that he constructed Gopal
Enclave in Sarada Nagar, Narsipatnam. Out of the same he sold away flat No.B to
AO for Rs.3,00,000/- under construction agreement. The said cost is inclusive of undivided share in the land to an extent of 50 square yards. Generally they used to made Mosaic flooring. At the request of AO he made Marble flooring and good quality of sanitation and electrification. The construction agreement is for 36
Rs.2,00,000/-. The costs of Marble flooring, good sanitation and electrification is for Rs.1,00,000/-. AO paid Rs. 3,00,000/- to him. In the year 2001, he delivered flat No.B to AO. He executed a sale deed bearing registration number 2561
Dt.13.12.2000 for consideration of Rs. 13,000/- in favour of AO for undivided extent of 50 square yards. The site cost is inclusive of Rs.2,00,000/- of development agreement. Ex.P1 the Certified copy of sale deed Dt. 13.12.2000 for undivided share of 50 square yards. The prosecution treated P.W.1 as hostile and during cross examination he denied the case of the prosecution. During cross examination by the defence counsel he deposed that he received only
Rs.3,00,000/- from AO towards sale deed, development agreement and completion of entire building. He received the amount from AO through a cheque of SBI for
Rs.2,00,000/-. AO did not make any further additions to flat after he delivered the same to him.
57.It is to be noticed that the prosecution did not bring in evidence the registered development agreement said to be entered into between AO and P.W.1.
According to the contention of the AO the cost of Rs.13,000/- relating to site is part and parcel of the value of the development agreement. If at all the prosecution is desiring to contend that the cost of the development agreement is addition to cost of item No.5, it is the duty of the prosecution to bring the development agreement into evidence, but it has not been done. Under the circumstances there is no reason to accept the contention of the prosecution that the AO made addition in item No.5 to the flat. Under the circumstances it is reasonable to treat the value of the asset No.4 as Rs.3 lakhs only. However, the fact remained is that according to
Ex.P.1 it is in respect of only undivided extent of 50.10 sq. yards. According to the evidence of P.W.1 the construction agreement is for Rs.2 lakhs and for costs of
Marble flooring, good sanitation and electrification is for Rs.1,00,000/-. Under the circumstances, I feels that Rs.3 lakhs for asset No.4 is to be taken into consideration separately and the value of the asset No.3 is to be considered as
Rs.13,000/-. The prosecution has failed to show the development under asset
NO.5. Hence, I am inclined to treat the value of asset No.3 as Rs.13,000/- and asset No.4 as Rs.3,00,000/-. Under the circumstances, I am inclined to delete 37 under item No.5 to a tune of Rs.50,000/-. Hence, item No.5 of the asset is deleted and it can not be tagged to the AO.
58. Item No.6: This is said to be constructed building at Lalam
Koduru, Atchutapuram Mandal and its value is shown as Rs.1,80,000/-.
P.W.40 deposed that AO constructed an RCC building with plinth area 370 sq.ft at his native place in 2001-02 in front of the very old house of his father.
He examined LW-56(PW33) the Branch Manager, Indian Over Seas Bank, who furnished the copy of account ledger bearing a/c No 857 of Sri Rama Krishna (Ex.P80). He examined and recorded the statement of LW-12 Gorle Satyanarayana and LW-13 Kallepally Radha Krishnam raju. He also collected Ex.P57 to 60 from
PW21. LW- 53 the Deputy Executive Engineer, Anti-Corruption Bureau, Sri Vijaya who inspected the said house on 24-07-2002 took detailed measurements of the house in the presence of the A.O’s father and evaluated the cost of construction of the house to Rs.1,88,000/-. EX-P101 is the said report already marked. Hence the cost of the house Rs 1,88,,000/- is added to the asset of A.O. During cross examination he deposed that Item no.6 is in the name of younger brother of AO
Sri. J.Rama Krishna. He did not examine the neighborers of the said house or the traders from whom the house material was purchased to know as to whether AO supervised the said construction or purchased material for the said house. He deposed that no document pertaining to Asset No.6 was seized from the house of
AO or his wife. It is true that J.Rama krishna younger brother of AO sent a letter to Joint Director, ACB claiming that he constructed the said house and he is owner.
He did not examine J.Rama krishna. He do not know whether J.Rama krishna received compensation when item No.6 was acquired by special economic zone.
59.Here, I would like to make it clear that the brother of AO J. Rama
Krishna is examined before this Court as D.W.12. According to him he constructed a house in his name in an extent of 5 cents at Lalam Koduru (Pylavanipuram) in the year 2000-2001. The said 5 cents is his ancestral property. The constructed extent was 2 cents. He spent Rs.1,80,000/- for construction of the said house. He received prize amount of Rs.40,000/- from Sriram chits. Ex.D16 is the Original
Sriram chits pass book in his name ( filed along with memo). There was bank 38 balance of Rs.13,000/- in his SB account of Indian Overseas Bank, Acthutapuram.
He received LIC amount of Rs. 10,000/-. He spent all those amount and other saving for construction of the said house. There are more persons in the village by name Jagarapu Rama Krishna, S/o Apparao. The said house was acquired in SEZ in the year 2004. Alternatively he was given site of 5 cents by SEZ along with compensation of Rs. 1,17,000/-. During cross examination by the Special Public
Prosecutor he denied that he was sanctioned a house under Housing Board,
Permanent Housing scheme under MLA quota on his application in the year 1998.
and that housing board sanctioned loan of Rs. 8,000/- in March, 1999 and
Rs.6,800/- in February, 2000 to him for construction of the house. He denied that there were no persons by name Jagarapu Rama Krishna, S/o Apparao except himself and that the loan was sanctioned to him only.
60. This Court has verified Ex.P.57 to P.60. They are marked through
P.W.21. According to P.W.21 he has been working as Deputy Executive Engineer,
A.P. Housing Corporation, Limited. As per the proceedings of District Manager, A.P.
State Housing in R.C.No.459/98/H/98-99, Dt.28.12.1998 eleven houses were sanctioned for the residents of Pylavanaipalem which includes the house sanctioned in the name of Jagarapu Rama krishna, S/o Apparao. He furnished copy of the sanction order and copy of the G.O.Ms. 54 Dt.18-07-1998 regarding the policy of allocation of rural permanent houses along with his letter. Ex.P57 is his letter, dt.14-03-2005. Ex.P58 is the copy of proceedings Dt. 28.12.1998. Ex.P59 is the payment particulars for the beneficiaries. Ex.P60 is the copy of the G.O.Ms.No.54.
61.The case of the prosecution is that Jagarapu Rama Krishna has no sources to construct the house and that he was sanctioned with a house by allotting some meager amounts under A.P. Housing Scheme and the value of the house is around Rs.1,80,000/- and he has no means to construct such a house.
62. The learned Special Public Prosecutor in his written arguments contended that the younger brother of AO i.e., D.W.12 is not capable to construct a house and he was sanctioned with house in the scheme of A.P. Housing Scheme and the case of the prosecution is believable.
63.The learned counsel for AO contended that Ex.P.57 to P.60 are of no 39 use to the case of the prosecution and there are so many persons by name Jagrapu
Rama Krishna in the village and Jagarapu Rama Krishna who was allegedly sanctioned with certain loan as deposed by P.W.33 and P.W.40 is not the person relating to AO and the present D.W.12 is a different person.
64.It is a case where the prosecution is alleging that the house stands in the name of D.W.12. It is a case no piece of paper pertaining to asset No.6 has been seized from the house of AO even according to P.W.40 the Investigating
Officer. It is not that D.W.12 is a member of family in relation to AO. Without proving anything regarding the same the prosecution can not contend that D.W.12 was granted with meager funds under house scheme to construct a house. The prosecution in my considered view failed to connect Ex.P.57 to P.60 with D.W.12. It is not that any title deed relating to asset No.6 was seized from the house of AO.
In my considered view the prosecution has failed to tag asset No.6 to AO as such it is deleted.
65. Item No.7: It is agricultural land in Papayyapalem in the name of wife of AO and its value is shown as Rs.4,90,000/-.
According to P.W.40 the A.O had purchased Ac.12.81 cents of dry land in Sy.No.66/10-13,39-46, 69/1-6, 8-14 at Papayyapalem village, Anakapalli Mandal,
Visakhapatnam District in the name of his wife Smt Lalitha Kumari vide Doc
No.1618/01 dated 14-5-2001 of S.R.O Sabbavaram for a consideration of Rs 4,90,000/-. Ex-P102 is the Xerox copy of document No. 1618/01. He has examined and recorded the statement of LW-11 S.V.Rajendra Prasada Rao who issued Ex.P6 and P7. Hence the cost of the land Rs.4,90,000/- is added to the asset of A.O.
During cross examination he denied that the wife of AO purchased asset No.7 with her own sources of income. He do not know that AO sent a letter to DFO explaining sources of his wife to acquire the property i.e., Rs.4,00,000/- from Bank of India,
Anakapalli and Rs. 90,000/- from her father in law and that she shown in her income tax returns.
66. The Special Public Prosecutor contended that AO purchased asset No.7 in the name of his wife for consideration of Rs.4,90,000/- under Ex.P.6, P.7 and
P.102 and it is to be tagged to the AO.
40
67. The learned counsel for the accused contended that the wife of the AO purchased the asset with her own sources and there is no material to substantiate the allegations of the prosecution that AO purchased this asset. Ex.P.102 is clear that D.W.18 purchased the land from Smt. Chanumuri Radha and Garapati Mytreyi.
P.W.40 did not examine the vendors to prove that D.W.18 has not purchased and that AO purchased and paid the sale consideration. D.W.18 deposed that she purchased the said item after taking loan of Rs.4 lakhs on the deposits made by her and she also explained as to how she made such a deposits and he would argue in detail under the head of additional income and the Investigating Officer considered the loan under item No.5 of the income in this regard. D.W.18 shown this transaction at Page No.19 in Ex.P.56 and it can not be tagged to the AO.
68. As seen from Ex.P.102 it is the xerox copy of the document pertaining to item NO.7 of the asset and it stands in the name of wife of AO and it literately reads that she purchased the said item. Here she is member in relation to the family of AO. As this Court already pointed out AO did not obtain prior permission in purchasing this asset and this Court deal with the same elaborately. Whether wife of AO had sources of income to purchase the property will be decided in the later stage while appreciating the evidence relating to the additional income of wife of AO. As the wife of AO is no other than member in relation to the family of AO, I am inclined to tag this asset to AO at the value of Rs.4,90,000/- as such it is tagged to AO.
69. Item No10: I would like to deal with this asset firstly before proceeding to deal with item No.8 and 9. So according to the description in the abstract of the asset item No.10 is the house site purchased by AO in the name of his wife in Ghandi Nagar, Anakapalli and its value is shown as Rs.1,50,000/-.
70.Turning to the evidence of P.W.40 he deposed that the AO Purchased house site ad-measuring 296 sq.yds at D.No.1-4-2, Gandhinagar, Anakapalli in the name of his father-in-law Sri Lalam China Kondaiah vide.Doc No.2913/2000 dated 4-10-2000 for a consideration of Rs 1,50,000/- and the same was shown to have been gifted to his daughter Smt. Lalitha Kumari vide Doc No. 224/2001 dated 31-1- 2001 of S.R.O, Anakapalle. Ex-P104 is the copy of the document No.2913/2000 41 regarding sale deed. Ex.P105 is the copy of Gift deed bearing No.224/2001. During investigation he examined and recorded the statement of LW-14 Sri Gorle Challam
Naidu s/o Appala Naidu. As per his investigation Sri Lalam China Kondaiah pledged his house bearing Door NO.3-5-2, Municiapal assessment No.3294/4,
Narasingaraopeta, Anakapalle on 7-4-1999 for Rs.40,000/- to one Gunda
Narasaratnam w/o Ramamurthy setty, Anakapalle vide Ex-P document No 841/99.
Hence the value of the site Rs 1,50,000/- is added to the asset of A.O. During cross examination he denied that he unnecessarily tagged item NO.10 to AO without any material and that the material collected by him shows that the said item was gifted by father in law of AO to the wife of AO and that he did not examine Lalam China kondayya in this regard.
71. The learned Special Public Prosecutor in his written arguments contended that this asset is purchased by AO in the name of his father-in-law and later AO got gifted the same to his wife and father-in-law of AO had no sufficient means to purchase the said property as such it is liable to be tagged to the AO.
72.On the other hand, the learned counsel for AO contended in substance that Ex.P.104 is the copy of sale deed in the name of father-in-law of AO pertaining to this asset and Ex.P.105 is copy of gift deed executed by his father-in-law in favour of his wife. The prosecution cited Gorle Chellam Naidu to speak that he sold away the house site to J. Ganesh. The prosecution has given up without examining him. There is no evidence that it is benami transaction. The defence examined
Gorele Chellam Naidu who deposed that he sold the said site measuring 296 sq.
yards to Sri Lalam China Kondaih for Rs.1,50,000/- and that original of Ex.P.104 contains his signature. He denied the case of the prosecution during cross examination by the Special Public Prosecutor. Lalam China Kondaiah, father-in-law of AO was examined as D.W.8. D.W.10 is the brother-in-law of accused. D.W.18 is wife of AO. All these witnesses deposed that the site was purchased by father-in- law of AO and it was gifted to D.W.18. D.W.10 and 8 explained their sources to purchase it. Simply because D.W.8 was working as an attender in the office of
MRO it does not mean that he was not incapable of meeting the said expenditure.
In the absence of any evidence this asset can not be tagged to the AO and hence, it 42 is liable to be deleted. AO in his annual property statement marked as Ex.D.1 mentioned that it was the property gifted to his wife by his father-in-law and the wife of AO shown it in her income tax returns.
73. In the light of the above contentions of the defence counsel, now I would like to see the evidence of D.W.1, D.W.8, D.W.10 and D.W.18. D.W.1 is G.
Chellam Naidu, who said to have sold the site to Lalam China Kondayya. D.W.8 is
Lalam China Kondayya. D.W.10 is the brother-in-law of AO. D.W.18 is wife of AO.
74.Coming to the evidence of D.W.1 he deposed that he was retired from service as a Senior Assistant in State Bank of India in the year 2012. He know
Lalam Chinkondayya. In the year 2000 he sold away site in Anakapalli in 296 square yards to Lalam Chinakondayya for Rs. 1,50,000/-. He received the consideration from Lalam Chinakondayya. The accused has nothing to do with the said transaction. Original of Ex.P104 contains his signature. During the course of cross examination by the Special Public Prosecutor he denied that the consideration was paid by AO and that he did not get mention of the same in the sale deed. He denied that he stated before ACB that consideration was paid by AO.
75.Coming to the evidence of D.W.8 the father-in-law of AO, he deposed in substance that he was retired from service as Attender in Revenue Department in the year 1993. He is resident of Anakapalli. He worked for about 40 years as attender. AO is his son in law. He had three sons and one daughter. His daughter Lalitha Kumari is also known as Uttama Kumari. Lalam Prabhkar rao is his younger son and last issue. His elder son namely Lalam Gangadhar was a contractor and he was expired. His second son is a clerk in Tahsildhar office. The marriage of AO with his daughter was performed in the year 1989. He (D.W.8) was having a house at Narsingaraopeta, Anakapalli. His daughter studied B.A. He purchased an extent of 6 cents from Gorle Chellam naidu in the year 2000 and gifted the same to his daughter in the year 2001. It was worth of Rs.1,50,000/-.
He gifted one cent of land to his daughter at the time of marriage. Ex.P104 (already marked) is the xerox copy sale for the purchase of land by him for
Rs.1,50,000/-. Ex.P105 ( already marked) is the xerox copy of gift dead executed by him in favour of his daughter. His sons helped him financially for purchase of 43 the said land. During cross examination he deposed that he received retirement benefits of Rs.85,000/-. By the time of retirement he was drawing salary of
Rs.5,000/- per month. He denied that one of his son by name Rama krishna studied upto 7th class only. He cannot say as to whether any document was executed in favour of his daughter conveying one cent of land to her as Pasupu
Kunkuma. He denied that he has no financial capacity to give Rs. 3,00,000/- to his daughter at the time of her marriage. He denied that the consideration paid under
Ex.P104 is not flown from his amount. He was operating the bank account and he denied that he did not present 16 tulas of gold and 2 Kgs of silver and cash of Rs.
3,00,000/- to his daughter and that he is deposing false to help AO.
76. Coming to the evidence of D.W.10 who is brother-in-law of AO and son of D.W.8 and brother of wife of AO, he deposed that his father promised to give 7 cents of land to wife of AO at the time of marriage. His father purchased 6 cents of land in the year 2000 for Rs.1,50,000/-. They all three brothers assisted his father financially for purchasing the above site. He contributed Rs.75,000/-. In the year 2001 his father gifted the said site to his sister i.e., wife of AO. During cross examination he denied that his father mortgaged the house bearing No.3-5-2 of
Narsingarao peta, Anakapalli to G.Narsaratnam. Witness volunteers that he mortgaged the said property for Rs.40,000/-. He do not remember when he redeemed the said property. He denied that AO purchased 6 cents in the name of his father with his sources and later got gifted the same to wife of AO. He denied that his father had no capacity to purchase the said property. He denied that AO after ACB raid went to Gorle Challma naidu and asked him to give a letter that his father purchased the said property and paid the cash. Ex.D13 to 15 does not contain any certification.
77.Coming to the evidence of D.W.18 the wife of AO, she deposed in this regard is that at the time of her marriage her parents presented 16 Tulas of gold and 2 Kgs of silver, cash of Rs.3,00,000/- towards Pasupu kunkuma. Her marriage with AO was performed in the year 1989.
78.Here, I would like to make it clear that D.W.8 was retired from service in the year 1993 and according to him he got retirement benefits of Rs.85,000/-.
44
When such is the situation it is quite improbable to assume that he was afforded to pay a huge amount of Rs.3 lakhs towards sthridhan to his daughter at the time of her marriage with AO. Even according to D.W.8 in cross examination he was drawing salary of Rs.5,000/- per month at the time of his retirement. The transaction under Ex.P.104 was in the year 2000. The so called gift under Ex.P.105 was in the year 2001. There was only less than four months gap between said two transactions. Even according to D.W.10 the house of his father was mortgaged for a sum of Rs.40,000/-. According to the prosecution it was in the year 1999. So when the facts and circumstances were such that D.W.8 received a sum of
Rs.85,000/- only in the year 1993 as retirement benefits, it is quite improbable to assume that he paid huge amount of RS.3 lakhs in the year 1989 at the time of her (D.W.18's) marriage with AO. When he was drawing salary of Rs.5,000/- as on the date of his retirement it is for D.W.8 to show as to how he paid consideration of
Rs.1,50,000/- to D.w.1. It is to be noticed that when a property is purchased in benami automatically the document show the name of the person in whose name the property is purchased. Under the circumstances, the evidence of D.W.1 is of no use to the case of the defence. Though the prosecution could not examine Chellam
Naidu who executed the sale deed in respect of Item No.10 in the name of father- in-law of AO, the defence examined him and in the light of the evidence of D.W.8 and D.W.10 which reveals that D.W.8 was not capable enough to pool up all sources to a tune of Rs.1,50,000/- to purchase the property under this item, it is very difficult to believe the case of AO. If the property was continuously in the name of
D.W.8 there would not have been any force in the case of the prosecution that AO purchased the asset No.10 in the name of his father-in-law. But here is a case that hardly within a gap of four months the property which came to be in the name of
D.W.8 came into the possession of wife of AO. It is to be noticed that according to the evidence of D.W.8 and D.W.10 they promised to D.W.18 to provide 7 cents of land and at the time of her marriage. They provided Ac.0.01 cent of land. The providing of Ac.0.01 cent of land is not at all proved in any way. So if really D.W.8 and D.W.10 promised to provide another 0.06 cents of land naturally they would have straight away purchased the asset No.10 in the name of wife of AO. The 45 whole episode of getting the property in the name of father-in-law of AO and re- conveying the same in the name of wife of AO hardly within the gap of four months shows that it is totally a suspicious transaction. It is not as though AO by following the mandates under Rule 9 of A.P. Civil Services (Conduct) Rules intimated to his employer that his father-in-law intended to convey an extent of 0.06 cents of land to his wife and he obtained due permission from his employer to get that property i.e., item No.10 from his father-in-law in the name of his wife. It is born out by record by virtue of Ex.P.33, D21 and EX.P.56 that AO did not obtain prior permission to get this property conveyed in the name of his wife. The evidence on record goes to show that D.W.8 had no capacity to purchase this property. The evidence adduced by the defence as if an amount of Rs.3 lakhs was given to wife of
AO by her parents at the time of her marriage and further considerable worth of gold and kgs of silver was given is appears to be quite improbable in the absence of proving capacity of D.W.8 to arrange the property under item No.10 in the name of wife of AO. As this Court already pointed if the property is standing in the name of D.W.8 however, grave the suspicion may be it can not be tagged to the AO. But the property comes into the name of wife of AO hardly within four months without any justifiable circumstances. Under the circumstances, the whole transaction revolving around Ex.P.104 and P.105 is quite suspicious coupled with very week financial position of D.W.8. Further it is not as though the AO duly obtained prior permission in getting conveyed the property in item No.1 in the name of his wife.
Under the circumstances, I am of the considered view that this item No.10 is liable to be tagged to the AO as the wife of AO is no other than the member in relation to the family of AO and this Court is disbelieving the contention of the AO that his father-in-law duly conveyed the item No.10 of the asset in the name of his wife in the manner as alleged. I am of the considered view item No.10 of the asset appears to be acquired with unknown sources of AO. Hence, I am inclined to tag this asset to AO as such tagged to AO.
79. Item No.8, 9 and 11: Item No.8 is Agricultural land in
Papayyapalem in the name of father of AO and its value is shown as Rs.7,20,800/-.
Item No.9 is Commercial complex in Daspallah Layout, Visakhapatnam in the 46 name father of AO and its value is shown as Rs.23 lakhs. Item No.11 is house site in G.M.ward, Anakapalli in the name of father of AO and it is value is shown as
Rs.2,00,000/-:-
Coming to the evidence of P.W.40 he deposed that the A.O has purchased Ac.8-48 cents of dry land in Sy.No.66/1-3, 5-7, 9, 14-18, 20-38 at
Papayyapalem village, Anakapalli Mandal in the name of his father sri Jagarapu
Apparao vide Doc No.1636/01 dated 14-5-2001 of S.R.O Sabbavaram for a consideration of Rs 3,41,800/-. EX- P103 is the Xerox copy of document
No.1636/01. He examined and recorded the statements of LW-42 (PW6) Muvvala
Koteswara rao, LW-43 (PW7) Pinninti Ramu Naidu, LW-44 (died) Pinninti Kannaiah,
LW-45 (PW8) Botta Lakshmana, LW-46(PW9) Botta Apparao, LW-47 Botta
Tatababu, LW-48 Gurram Chinna Rao, LW-49 Pinninti Boolokam and LW50 V.
Bharatamma. PW6 to 9 stated before him as in Ex.P12 to 15 respectively. Hence the cost of the land Rs 7,20,800/- under item No.8 is added to the asset of A.O.
80.He further deposed that the A.O Purchased commercial complex with ground, first and second floors with built up area 3144 Sq.Ft in a site ad-measuring 273 sq. yards in plot NO.100-A MIG bearing D.No.11-8-49, Sy.No.1197, Daspallah layout Visakhapatnam city on 28-3-02 in the name of his father Sri J. Apparao s/o
Ramaiah vide Doc No.1133/2002 dated 20-3-02 of Jt. S.R.O, Visakhapatnam for a sale consideration of Rs 23,00,000/- from Sri Sanapala Thirumala Mahadev a Non
Resident Indian residing at 2/17-19, Lamrert Street, Rich Mound, Plot No. 21,
Melbourne, Australia. LW- 59 The Joint Sub-Registrar-1, Visakhapatnam furnished the certified copy of the document No. 1133/2002 vide his letter dated 28-04-2002.
EX-P9 is the copy of said sale deed. He examined and recorded that statement of
LW15 Sri Sanapala Satyanarayana who sold the complex and LW-16 Reddy
Damodararao who sold the stamps to J.Apparao. He examined father of AO Sri
Jagarapu Apparao. He secured the letter from Branch Manager, Bank of India,
Anakapalli Dt.06.04.2004. Ex.P84 and 85 are the letter and bank extract and account extract (already marked). He examined LW-2 Sri Kundrapu Krishnamurthy
S/o Ramaswamy. During investigation, he addressed letters to Sub-Registrar
Office’s of Anakapalle, Sabbavaram, Narsipatnam in Visakhapatnam District and 47
SROs Vallabhnagar, Malkajigiri and Uppal. He examined LW- 59 The Sub Regisrar,
Anakapalli. The SRO Uppal vide his letter No. 92/2004 dt. 7-6-2004 and SRO,
Malkajigiri vide his letter No.167/2004 dt. 4-8-2004 and Joint Sub-Registrar I,
Rangareddy District, Moosapet vide his letter NO. 474/2004 dt. 9-8-2004 informed that no transactions have taken place in the name of Kundrapu Krishnamurthy. He also addressed letters to SROs in Hyderabad. LW-61 SRO, Vallabhnagar, Hyderabad reported by way of letter that Sri Kundapu Krishnamurthy (Claimant) purchased 546 sq. yds in Kapra village for Rs.22,000/-vide document No.4045/89 and he has not executed any document. Hence the consideration value of the complex
Rs.23,00,000/- is taken as asset of A.O.
81.P.W.40 further deposed that the A.O Purchased house site admeasuring Ac.0.81 cents in Sy.No.789/1, G.M.Ward, Anakapalli in the name of his father Sri.Jagarapu Apparao for a consideration of Rs 2,00,000/- vide Doc No.
256/2001 dated 31-01-2001 of S.R.O, Anakapapalle. LW-59 The Sub Registrar,
Anakapalle vide his letter No. Nil, dated 02-05-2002 furnished the copy of the document No.256/01. Ex-P10 is the certified copy of document No.256/01 (already marked). He examined and recorded the statement of LW-18 (PW5) Sri Penta Kota
Subramanyam s/o Polarao. PW5 stated before him as in Ex.P11. Hence the consideration value of the site Rs.2,00,000/- is added to the asset of A.O.
82. During cross examination he denied that these assets belongs to father of AO and he acquired the same with his legal sources. He denied that he did not place any material to show that AO purchased these properties in the name of his father. He do not know that the father of AO shown the same in his income tax returns. Witness says that those were filled after check period. He do not know that an assessee can file revised tax returns. He did not investigate in to the contents of IT returns of father of AO collected from IT office. In the show cause notice to AO he mentioned the value of item No.8 as Rs.3,41,800/-. He denied that he prepared the statements of witnesses by sitting in his office without examining them. He collected bank account of LW2 K.Krishna murthy. He examined LW2 K.Krishna murthy as father of AO claimed that he borrowed
Rs.10,00,000/- and 3,00,000/- under two cheques in different occasions to cross 48 check the transaction. When he examined LW2 K.Krsihna murthy on 10.04.2004 he confirmed about Rs.10,00,000/- for purchase of item no.9. He do not know as to whether subsequent to registration of item no.11 a bit of site was acquired by
National High Way Authorities and compensation of Rs.1,60,000/- was paid in the name of J.Apparao by way cheque.
83.The learned Special Public Prosecutor in his arguments contended that these properties are acquired in the name of father-in-law of AO by AO and that it can be tagged to the AO.
84.The learned counsel for the accused contended that Ex.P.103 is the xerox copy of sale deed pertaining to asset No.8 and it is marked through P.W.40 which reveals that the father of AO i.e., D.W.19 purchased the land. The prosecution did not adduce evidence to show that AO purchased it in the name of
D.W.19. The prosecution examined the vendors pertaining to these assets who did not support the case of the prosecution and they are P.Ws.5 to 9 and they turned hostile. Ex.P.12 to P.15 are marked through them. The cost of the land basing on 161 CR.P.C., statement of P.Ws.5 to 9 is arrived at Rs.7,20,800/-. According to
Ex.P.103 the total sale consideration was paid by D.W.19. D.W.3 signed as attestor who deposed that D.W.19 purchased the said land from the above said persons.
The prosecution did not challenge the evidence of D.W.3. D.W.19 was having sufficient sources to purchase the property which is proved by way of IT returns.
The IT Returns under Ex.P.56 shows his income. He is having sufficient income so as to purchase the said lands and no inference can be drawn against AO. The prosecution miserably failed to prove these assets The actual cost of the land is
Rs.3,41,800/- but not Rs.7,20,800/-. Ex.P.9 is the copy of sale deed pertaining to asset No.9. According to D.W.16 the asset was constructed in the name of his son who was student at Australia and which was sold to D.W.19. D.W.19 obtained loan from the Bank of India, Anakapalli and as advised by the Manager and in consultation with his auditor it was considered. The said loan was considered by
P.W.40 and the same was shown as item No.6 of income. Ex.P.9 is clear that
D.W.19 purchased and made payment by way of cheque to the son of D.W.16.
D.W.19 had individual sources to purchase it. At the request of D.W.16, D.W.19 49 made cheque payment. Since K. Krishna Murthy (L.W.2) was happened to be a close friend of D.W.19 he borrowed Rs.13,00,000/- in two spells. Ex.P.26 ledger account of D.W.19 is showing the clearance of cheques on 9.2.2002. Ex.P.109 is the ledger account of K. Krishna Murthy. D.W.13 also stated that he sold to J.
Apparao and he insisted for payments through bank. According to P.W.40 K.
Krishnamurthy confirmed about giving loan of Rs.10 lakhs to J. Apparao for purchase of house at Daspallah. So this asset can not be tagged to the AO. He further argued that according to P.W.40 item No.11 was purchased by AO in the name of his father. P.W.40 recorded the statement of P.W.5 who sold. Ex.P.10 is the certified copy of sale deed in this regard. P.W.5 did not support the case of the prosecution. He deposed that his wife Dhana Lakshmi and Bhadari Narayanamma sold away 0.15 cents of land to one Jagarapu Apparao for Rs. 2,00,000/- under
Ex.P.10 sale deed. The prosecution got marked Ex.P.11 by way of contradiction.
D.W.19 deposed that he purchased the said site for Rs.2 lakhs with his agricultural income and his income on hiring of his jeep. The said transaction was was shown in his IT returns. According to D.W.19 the part of land was taken by National High
Way Authority and he was paid with compensation of Rs.1,60,000/-. D.W.19 had individual sources to purchase this property.
85.In the light of the above contentions, now I would like to refer here the evidence of P.Ws.5 to 9 relating to asset No.8. According to P.W.5 his wife and
Badarinarayanamma sold away 0.15 cents of land to one Jagarapu Apparao under the sale consideration of Rs.2,00,000/-. Ex.P10 is the xerox copy of the said sale deed Dt. 31.01.2001( the document was furnished by Sub registrar to the investigating officer). The sale consideration was paid to his wife and
Badarinarayanamma by J.Apparao. He was not examined by ACB, Inspector. The prosecution declared him as hostile and during the course of cross examination by the Special Public Prosecutor he denied that AO paid sale consideration of Rs.
3,00,000/- to him and his wife had no means to purchase the property. His wife and wife of his younger brother jointly purchased the said 15 cents. He denied that he stated before ACB as in Ex.P11 (161 Cr.P.C. statement) and that he is deposing false.
50
86.Coming to the evidence of P.W.6 he deposed that he is having Ac.1.35 cents of land in chinnayyapalem village, panchayath of papayyapalem village. He sold away the said land to one Jagarapu Apparao. The consideration of Rs.
85,000/- was paid by Apparao to him. He was examined by ACB, Inspector. The prosecution declared him as hostile as he did not support the prosecution case.
During cross examination by the Special Public Prosecutor he deposed that he delivered the original sale deed to J. Apparao. He denied that the consideration of
Rs.1,14,750/- was paid to him by AO the son of Jagarapu Apparao. He denied that
AO got purchased the said property in the name of his father and that he stated
before ACB, Inspector as in Ex.P12 ( 161 Cr.P.C. statement of witness) and that he
is deposing false.
87.Coming to the evidence of P.W.7 he deposed that he sold away an extent of 55 cents of land to Jagarapu apparao. The consideration amount was paid by Jagarapu Apparao. The prosecution treated him as hostile and during the course of cross examination by the Special Public Prosecutor he denied that the consideration of Rs.46,750/- was paid by AO and that at the instance of AO he registered the land in the name of father of AO and that he stated before ACB, inspector as in Ex.P13 ( 161 Cr.P.C. statement) and that he is deposing false.
88. Turning to the evidence of P.W.8 he sold away an extent of 50 cents of land to Jagarapu apparao. The consideration amount was paid by Jagarapu apparao. The prosecution treated him as hostile and during the course of cross examination by the Special Public prosecutor he denied that the consideration of
Rs. 42,500/- was paid by AO and that at the instance of AO he registered the land in the name of father of AO and that he stated before ACB, inspector as in
Ex.P14 ( 161 Cr.P.C. statement) and that he is deposing false.
89.Coming to the evidence of P.W.9 he deposed that he sold away an extent of 50 cents of land to Jagarapu apparao. The consideration amount was paid by Jagarapu Apparao. The prosecution treated him as hostile and during cross examination by the Special Public Prosecutor, he denied that the consideration of
Rs.42,500/- was paid by AO and that at the instance of AO he registered the land in the name of father of AO and that he stated before ACB, inspector as in Ex.P15 51 ( 161 Cr.P.C. statement) and that he is deposing false.
90. It is to be noticed that according to the evidence of P.W.40 he examined P.Ws.5, 6, 7, 8, 9 and L.W.47, 48, 49, 50 and 44 (died). It is fact that the prosecution did not examine the other vendors. The prosecution chosen to examine P.Ws.5 to 9 but they did not support the case of the prosecution admittedly. So there remains the evidence of P.W.40 alone in this regard. How far his evidence in this regard can be considered is a matter of consideration here-in- after.
91. Turning to asset No.9 the defence let in some evidence. The defence examined D.W.16 and D.W.19 the father of AO. According to D.W.16 the house was constructed in the name of his son who was staying in Australia and he sold away the same to father of AO for Rs.23 lakhs. It is clear that the prosecution though cited LW.15 but did not examine him and on the other hand the defence examined him. So the prosecution did not examine the vendor under asset No.9. The defence examined the vendor pertaining to asset No.9 who deposed against the case of the prosecution. So there remains the evidence of P.W.40 alone in this regard and how far the reliance can be placed in his evidence is a matter of appreciation.
92.Pertaining to asset No.11 the prosecution did not examine the vendor.
The defence examined D.W.5 who deposed against the case of the prosecution.
According to him the property was sold to father of AO J. Apparao. D.W.19 the father of AO deposed that he purchased this asset and even it is acquired by the
Government subsequently and that he was paid with consideration.
93.So there remains the evidence of P.W.40 alone in this regard. So it is clear that when the prosecution examined some of the vendors pertaining to asset
Nos.8, 9 and 11 as the case may be they did not support the case of prosecution and deposed that it is the Jagarapu Apparao (D.W.19) who purchased these properties and the consideration was paid by him. The AO examined some of the vendors pertaining to this assets as the case may be who deposed against the case of the prosecution. Now this Court has to see whether there are no circumstances existing in faovur of the prosecution to say that AO purchased these assets in the 52 name of benami i.e., in the name of his father.
94. To prove that a transaction is benami some of the the important circumstances as per the judicial pronouncements are that the person who purchased the property in the name of others is in actual possession of the same and that he has been in the custody of the original documents. Now it is not the case of the prosecution that the original title deeds pertaining to item Nos.8,9 and 11 are found physically in the possession of AO. It is not the case of the prosecution that the AO is found in possession of the assets under item Nos.8,9 and 11 of the property. I would like to make it clear that according to the case of the prosecution
P.W.40 conducted search at the house of AO at K.D. Peta road,Narsipatnam. It is further evidence of P.W.40 that on the same day the Inspector, ACB K.V.R.K. Prasad searched the residential premises of Jagaralu Lalitha Kumari w/o AO at Anakapalli.
So according to P.W.40 he got prepared Ex.P.46 inventory report. According to him
Inspector, ACB, K.V.R.K.Prasad got prepared Ex.P.28 inventory report. According to the evidence of P.W15 one of the mediator to the search of the residential premises of AO at Ankapalli the Inspector concluded the inventory proceedings at 10.00 a.m., in their presence. Ex.P.28 is the inventory proceedings. As seen from the evidence of P.W.15 coupled with Ex.P.28 the documents that are seized from the residence of
AO at Anakapalli are the Ex.P.29 made up file relating to bank papers and agreements containing 15 sheets, Ex.P30 made up file relating to electricity, LIC receipts and marks lists of AO's children containing 7 sheets, Ex.P31 made up file relating to RC book of Motor cycle and purchase receipts of teak wood containing 12 sheets,Ex.P32 made up file relating to Debenture certificates of Lalam
Prabhakara rao containing 50 sheets, Ex.P33 made up file pertaining to xerox copies of income tax returns and annual property statements containing 37 sheets.
Ex.P34 madeup file relating to allegations against Sri Jagarapu Ganesh and DFO containing 15 sheets. Ex.P35 made up file relating to expenditure incurred on the construction of Bargavi Plaza containing 29 sheets. Ex.P36 made up file relating to purchase of gold containing 25 sheets and Ex.P37 made up file pertaining to miscellaneous papers purchase receipts, GPF slips etc., containing 71 sheets. He is also a mediator to the search of house of Lalam China Kondayya at Anakapalli and 53 according to him Ex.P38 is the inventory. According to him the documents seized are Ex.P.39 to P.43 and they are, Ex.P.39 made up file relating to debenture certificates of Sri Ram investments in the names of Children of AO containing 7 sheets; Ex.P40 made up file relating to blank promissory notes in different names containing 64 sheets, Ex.P41 made up file relating to RC book of Indica car bearing
No.AP31 U 5646 and Maruthi Car bearing No.AP32 1212 ( As per the memos in the Ex.P41 RC books were already returned); Ex.P42 made up file relating to purchase bills of AC machine and others containing 7 sheets and Ex.P43 made up file relating to purchase bills of building material containing 9 sheets. As verified from Ex.P.29 to P.37 made up files seized at the residence of AO they are not at all containing the original title deeds pertaining to asset No.8.9 and 11. Similarly the made up files seized at the residence of Lalam China Kondayya are also not containing the title deeds in the name of father of AO pertaining to asset No.8, 9 and 11.
95.According to P.W.17 he is the mediator to the search of residential houses of AO at K.D. Peta road at Narsipatnam. According to him the ACB
Inspector conducted search proceedings under inventory which is Ex.P.46.
According to him Ex.P.47 to P.55 are seized and they are Ex.P47 made up file relating to pass book, ATM cards of ICICI Bank and other bank correspondence containing 10 sheets, Ex.P48 made up file relating to sale deed document no.677/93 and xerox copies of documents containing 24 sheets, Ex.P49 made up file relating to LIC bonds and receipts containing 32 sheets, Ex.P50 made up file relating to UTI certificates containing 1 to 9 sheets, Ex.P51 made up files relating to receipts of business establishments containing 100 sheets, Ex.P52 made up file relating to 15 photographs of house warming ceremony, Ex.P53 made up file relating to miscellaneous papers 77 sheets, Ex.P54 made up file relating to HP Gas connection containing 8 sheets and Ex.P55 made up file relating to Medical Bills 63 sheets.
96.As seen from Ex.P.47 to P.55 it does not contain the title deeds pertaining to asset No.8, 9 and 11. According to the evidence of P.W.40 there is no incriminating material found at the house of father of AO. He deposed that he 54 conducted search to search the locker NO.13 and 30 of State Bank of Hyderabad,
Anakapalli and conducted search and Ex.P.97 is the mediators report. In the locker two made up files are seized and they are Ex.P.98 made up file containing 76 sheets relating to original registered sale deed documents of AO and Ex.P99 made up file containing 18 sheets relating to house tax receipts, cheque book, LIC bond papers and UTI receipts etc., This Court verified Ex.P.98 and even it is not containing the original title deeds in the name of J. Apparao pertaining to asset Nos.8,9 and 11. It contains the original title deed pertaining to the asset No.7 in the name of wife of
AO and this Court already tagged the same to the wife of AO. So the prosecution has not at all proved the physical possession of the original sale deeds pertaining to asset No.8, 9 and 11. Even the prosecution has not proved the possession of any copies of documents i.e., the copies of sale deeds in possession of AO pertaining to asset No.8, 9 and 11. Now the fact is that the oral evidence let in by the prosecution by examining some of the vendors is of no use to the case of the prosecution as they deposed that the amount was paid J. Apparao to them. They did not depose anything against AO. The prosecution has not proved that the AO was found in actual possession of documents relating to Item Nos.8, 9 and 11 of the abstract of assets. The prosecution in my considered view miserably failed to prove that out of the sources of AO he purchased the property under item Nos.8, 9 and 11 in the name of his father.
97.The defence is contending that the father of AO has sufficient sources to purchase item Nos.8, 9 and 11 of the assets and in support of its contention he is contending that he duly filed revised income tax returns in the year 2003 which reflects his sources of income and he also borrowed Rs.10 lakhs from the bank of
India and investigating officer shown the same as income of father of AO and further the income tax returns under Ex.P.56 shows the capacity of father of AO to purchase the assets.
98.Here, I would like to make it clear that voluminous evidence has been adduced with regard to the so called income tax returns. There is no dispute that the investigating agency given intimation to the income tax department alleging that AO was found in possession of disproportionate assets and the income tax 55 department issued notices to AO, his wife and father-in-law. The contention of the prosecution is that the income tax returns were filed subsequent to the ACB raid as such the father of AO, wife of AO and AO boosted up their income. Here, I would like to make it clear that a detailed appreciation has to be made while appreciating the so called additional income claimed by AO to his father and wife. The binding nature of the orders passed by the income tax department under the defence exhibited will have to be gone into in the later stages to ascertain the income of wife of AO and his father. But one thing is certain is that there is no dispute that the father of AO was having about 10 acres of ancestral land and he also borrowed certain amounts from the bank. It is to be noticed that it is only when the AO was found in physical possession of the title documents and was found in physical possession of the immovable property and when there is evidence that AO actually paid the amount of consideration to the vendors of the immovable property then this court has to probe further as to whether the persons in whose name the property under item Nos.8, 9 and 11 is standing has capacity to purchase the property. In this present case on hand, virtually there is no link adduced by the prosecution to connect item Nos.8, 9 and 11 with that of father of AO. Apart from that, he was having certain sources by way of ancestral land and also by borrowing the amounts. Hence, I hold that there is no definite and there is no convincing evidence to prove the transaction of benami. The prosecution in my considerable view failed to prove that the AO purchased Item No.8, 9 and 11 of the assets in the name of his father with his own sources showing his father as benami. The evidence adduced by the prosecution does not warrants this Court to say that these properties are purchased in the name of father of AO by AO. Hence, I hold that item No.8, 9 and 11 are liable to be deleted and they can not be tagged to the AO as such they are deleted.
99. Item No.12: BANK BALANCES
Sub Item No.1: Bank balance of Rs.2,04,772.32 in the account
of AO bearing No.ASB/01/00551134 of Andhra Bank, Woodpeta,
Anakapalli:
P.W.40 deposed that the A.O had opened S.B.A/c in Andhra Bank, 56
Woodpeta, Anakapally in his name vide account No.ASB/01/00551134 on 30-6-93 and there is a balance of Rs 2,04,772.32 till the end of check period. Ex-P17 (already marked) is the ledger extract. Hence the balance of Rs.2,04,772.32/- is added to the assets of A.O.
100.Here, I would like to make it clear that Sub-items 1 to 11 are various bank accounts. P.W.40 during cross examination denied that except the account of
AO, he has nothing to do with other accounts.
101.The learned counsel for the AO did not dispute the factum of this amount in S.B. A/c of the accused, but his contention is that according to P.W.10 through whom Ex.P.17 was marked there is a clearance of cheque on 5.2.2002 for
Rs.2,02,207.32ps and AO (D.W.20) deposed that he received the said amount by way of cheque for Rs.2,02,207.80ps of Karur Vysys Bank, Visakhapatnam, dt.24.9.2001. According to him he received the amount by way of cheque from GPR
Chits Pvt., Ltd. It is also his contention that it was wrongly put to P.W.10 that there was a clearance of cheque on 5.2.2002 for RS.2,02,749.32 ps and P.W.10 admitted wrongly.
102.So the contention of the learned counsel for the AO is that the amount standing in the account is no other than the amount received towards chit amount.
Whether the accused received the said amount towards chit is a matter to be decided here-in-after. Hence, this amount is tagged to the AO.
103. Sub Item No.2: This is SB Account in the name of AO bearing
NO.SB/SRS/41 in Visakha Grameena Bank, Narsipatnam with balance of
Rs.33,000/- and P.W.40 deposed about the same and marked Ex.P.21 ledger extract and there is no dispute about this according to the written arguments as such it is tagged to the AO.
104. Sub Item No.3: According to P.W.40 the A.O had opened S.B.A/c
No. SB/SRS/132 in Visakha Grameena Bank, Narsipatnam in the name of his father
Sri Jagarapu Apparao and there is a balance of Rs 47,200/- till the end of check period. Ex-P22 is the ledger extract of account(already marked). Hence the balance
Rs 47,200/- is added to the asset of A.O.
105.The contention of the learned counsel for AO is that there is no 57 material to show that AO introduced his father for opening of the said account and no bank manager will allow a person to open an account in the name of a third person and P.W.40 wanted to tag all the movable and immovable assets of others to AO and according to P.W.11 and Ex.P.22 the amount is pertaining to father of AO i.e., Jagarapu Apparao.
106.Here, I would like to make it clear that except the evidence of P.W.40 there remains nothing on record to show that AO is behind the bank of his father in getting opened this account in the name of his father and that the amount standing in the account is belonging to AO out of his sources. Virtually there is no link to connect the AO with this account and there is no convincing evidence adduced by the prosecution to say that this account was opened at the instance of AO in the name of his father and that the amount in the account is pertaining to AO. It is not the case of the prosecution that the Investigating agency seized any counter foils or account opening application form etc., to show they were in the hand writing of the accused or otherwise. In the absence of adducing convincing evidence the evidence of P.W.40 that AO had opened this account in the name of his father can not be believed. Hence, this asset can not be tagged to the AO and is deleted.
107. Sub Item NO.4:
P.W.40 the Investigating Officer deposed that the A.O had opened
S.B.A/c No.8515 in Bank of India, Anakapalle in the name of his father Sri J.
Apparao on 14-11-2000 by depositing cash of Rs.6,50,000/- and however there is a balance of Rs 9,35,082/- till the end of check period. Ex-P106 is the copy of ledger extract SB A/c No. 8515. Hence the balance Rs 9,35,082/- is added to the asset of
A.O.
108. The contention of the learned counsel for AO is that this account is also belonging to father of AO and this amount can not be tagged to the AO.
109.It is to be noticed that it is the specific evidence of P.W.40 that AO got opened this account by depositing cash of Rs.6,50,000/-. There is no proof what- so-ever to show that AO deposited the said amount in the account and that the balance of Rs.9,35,082/- is pertaining to AO. There are no circumstances in favour of the prosecution to say that this account was opened at the instance of AO in the 58 name of his father and the amount standing in the account is pertaining to the AO.
In the light of the reasons furnished supra, while appreciating the evidence relating to sub item No.3, the contention of the prosecution that the AO is behind back of his father in getting opened this account and the amount is pertaining to him can not be accepted. Hence, this item is also deleted as it can not be tagged to the AO.
110. Sub Item No.5: This is SB Account bearing No.ABG 20148 of Andhra
Bank, Narsipatnam in the name of wife of AO with balance of Rs.1,005/-. P.W. 40 the Investigating Officer deposed about the same and about Ex.P.23 letter furnished by P.W.12 and P.24 certificate showing the amount lying in the said account.
According to the written arguments of the learned counsel for AO, there is no dispute about this item. Hence, it is tagged to the AO.
111. Sub Item No.6 and 7:
P.W.40 the Investigating Officer deposed that the A.O had opened an
S.B.A/c No.00106083 in the name of Lalam Uttara Kumari @ Jagarapu Lalitha
Kumari W/o A.O and there is a balance of Rs.24,909.00 till the end of check period.
Ex-P69 and P70 are the letter and statement of accounts in this regard issued by bank( already marked). Hence the balance Rs 24,909.00 is added to the asset of
A.O. He further deposed that the A.O also had opened an S.B.A/c 8517 in Bank of
India, Anakapalle in the name of his wife Smt. Lalitha Kumari and there is a balance of Rs.2722.00 till the end of check period. Ex-P107 is the copy of ledger extract SB
A/c No.8517. Hence the balance of Rs 2722/- is added to the asset of A.O.
112.It is the contention of the learned counsel for AO that the amount in the above accounts are pertaining to the wife of AO.
113.Here, I would like to make it clear the wife of AO is member in relation to the family of AO and further there is no dispute that these accounts are standing in the name wife of AO and the evidence of P.W.40 coupled with Ex.P.69, P.70 and
P.107 proves the same. Hence, these assets are tagged to the AO.
114. Sub Item Nos.8 and 9:
According to P.W.40 the Investigating Officer, the A.O had opened an
S.B.A/c 22635 in Visakhapatnam Co-operative Bank, Visakhapatnam in the name of his father Sri Jagarapu Apparao and there is a balance of Rs.1008.00 till the end 59 of check period. Ex-P25 and 26 are the letter and ledger extract furnished by bank in this regard( already marked). Hence the balance Rs 1008.00/- is added to the asset of A.O. He further deposed that the A.O had opened an S.B.A/c 553101 in
Andhra Bank, Woodpeta, Anakapalle in the name of his father Sri J. Apparao and there is a balance of Rs.265.00 till the end of check period. Ex-P18 is the copy of ledger extract furnished by Bank (already marked).Hence the balance Rs 265/- is added to the asset of A.O.
115.The contention of the learned counsel for the AO is that as the above accounts are standing in the name father of AO, it can not be tagged to AO.
116. In the light of the reasons furnished supra while appreciating the evidence relating to the bank accounts in the name of father of AO and as the prosecution did not let in evidence to show that these account are opened at the instance of AO in the name of his father and as the evidence of P.W.40 can not be a basis to give such a findings these two assets are deleted.
117. Sub Item No.10:
According to P.W.40 the Investigating Officer, the A.O had opened
S.B.A/c 8699 in Bank of India, Anakapalle in the name of his wife Smt Lalitha
Kumari on 30-3-2001 with a deposit of Rs.6 lakhs and there is a balance of
Rs.8937.00 till the end of check period. Ex-P108 is the copy of ledger account furnished by Bank. Hence the balance Rs 8937/- is added to the asset of A.O.
118.The contention of the learned counsel for AO is that this account is pertaining to wife of AO.
119.Here I would like to make it clear that the wife of AO is a member of family in relation to AO, I am inclined to tag this asset to the AO as such it is tagged to the assets of AO.
120. Sub Item No.11:
According to the evidence of P.W.40 the A.O had opened an 006001005256in ICICI, Bank, Dwarakanagar, Visakhapatnam in his name on 3-8- 2000 by depositing Rs 3,45,000 and there is a balance of Rs.4780/- till the end of check period. Ex-P28 is the copy of ledger extract furnished by Bank( already marked). Hence the balance Rs 4780/- is added to the asset of A.O.
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121.As seen from the written arguments of the learned counsel for AO there is no dispute about this asset as such it is tagged to the AO.
122. Sub Item No.12:
According to the evidence of P.W.40 the A.O had opened an S.B.A/c 9025 in Bank of India, Anakapalle in the name of his Uncle Sri K. Krishna Murthy and there is a balance of Rs.1,00,375.00 till the end of check period. Ex-P109 is the statement of account furnished by the bank. Hence the balance of
Rs.1,00,375.00/- as on 9-4-02 is added to the asset of A.O.
123.The contention of the learned counsel for AO is that this account does not belongs to AO and it belongs to K. Krishna Murthy and he is cited by the prosecution and if at all the prosecution wants to link up the said account to AO it would have examined said Krishna Murthy and there is no basis for the investigating Officer to say that AO had opened this account. Through P.W.40
Ex.P.109 statement of account is marked. P.W.36 was examined and through him
Ex.P.84 letter dt.26.6.2003 and Ex.P.85 loan extract in the name of J. Lalitha
Kumari and Apparao were marked. P.W.36 is shown as L.W.64 who is cited to speak about furnishing extracts and letters relating to D.W.18, D.W.19 and the said K.
Krishna Murthy. There is no evidence except marking Ex.P.109 which shows that it is belongs to K. Krishna Murthy and it can not be tagged to the AO.
124.As evident from the evidence of P.W.40 and Ex.P.109 virtually this account is pertaining to one K. Krishna Murthy. P.W.40 did not explain the basis on which he arrived at a conclusion that it is pertaining to AO and AO is behind the back of Krishna Murthy in getting opened this account and that the amount standing in the account is pertaining to AO. The evidence of P.W.36 regarding the furnishing of the extract of letters of D.W.18 and D.W.19 is of no use to the case of the prosecution. They have nothing to do with Ex.P.109 account. The prosecution has failed to prove that AO got opened this account in the name of K. Krishna
Murthy and the amount standing in the account is pertaining to AO. Hence, this item is deleted.
125. Item No.13 FIXED DEPOSITS
126. Sub Item No.1:
According to the evidence of P.W.40 there is deposit of Rs.5,00,000/- 61 in Bank of India, Anakapalle in the name of his (AO's) father Sri Jagarapu Apparao vide A/c No. DBD 5142. Ex-P84 is the letter and Ex.P106 is the ledger copy reflecting the present amount ( already marked). Hence the Fixed Deposit of Rs 5,00,000/- is added to the asset of the A.O. During cross examination he denied that AO has nothing to do with the fixed deposits of sub item nos. 1 to 14 and they belongs to the father and wife of AO and that they have also shown the same in their IT returns and that AO also explained satisfactorily for the said deposits in his explanation.
127.The learned counsel for AO contended that this item is pertaining to
D.W.19 the father of AO but not of AO. Even according to Ex.P.84 letter marked through P.W.36 the deposits stands in the name of Jagarapu Apparao. Except the presumption of P.W.40 there is no evidence that AO made the said deposit in the name of his father. D.W.19 deposed that he made the deposit out of his agricultural income. In Ex.P.56 IT returns it was also reflected. Hence, it is to be deleted.
128.It is to be noticed that it is not that the fixed deposit bonds pertaining to this asset is physically seized from the custody of AO. No such circumstances are elicited or canvassed by the prosecution. There is no evidence to show that AO made fixed deposit of this amount in the name of his father. D.W.19 the father of
AO is not dependent on AO and it can not be held that he is a member of family in relation to AO. Except the evidence of P.W.40 which has no basis to explain as to the manner in which this amounts are said to be put in Fixed Deposit in the name of father of AO there remains nothing in support of such a contention as such it is deleted.
129. Sub Item No.2:
P.W.40 deposed that there is deposit of Rs.4,50,000/- in Bank of India,
Anakapalle in the name of wife of AO Smt J.Lalitha Kumari vide A/c No. DBD 5356. Ex-P84 and P108 ( already marked) shows this deposit. Hence the FD
Rs.4,50,000/- is added to the asset of the A.O.
130.The contention of the learned counsel for AO is that this deposit was made by D.W.18 with bank of India and P.W.36 spoken about Ex.P.84 letter and
Ex.P.108 copy of ledger which shows the deposit of Rs.6,00,000/- on 30.3.2001 by 62
D.W.18 and according to her she received an amount of RS.5,40,000/- from D.W.19
before purchase of asset No.7 and as the land transaction took time, she made cash
deposit of the said amount of Rs.5,40,000/- by adding her savings of Rs.60,000/- and obtained loan of Rs.4,00,000/- against the said FDR out of Rs.6,00,000/-. She also reflected it in Ex.P.56 IT returns. What the learned counsel for AO contended is regarding the manner in which the amounts came to be deposited in the name of wife of AO. That aspect will be looked into in the later stages. In so far as standing of this amount in the name of wife of AO is concerned there is no dispute as such it is tagged to the AO.
131. Sub Item Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14:
These are also the fixed deposits in the name of wife of AO for
Rs.45,000/-, Rs.45,000/-, Rs.55,000/-, Rs.45,000/-, Rs.45,000/-, Rs.45,000/-,
Rs.45,000/-, Rs.45,000/-, Rs.45,000/-, Rs.45,000/-, Rs.45,000/- and Rs.45,000/- respectively.
132.P.W.40 in his evidence deposed about these items and spoken Ex.P.69 relating to these deposits. There is no dispute that these deposits are standing at the value shown by the prosecution in the name of wife of AO.
133It is the contention of the learned counsel for AO that acording to
D.W.18 in December, 2000 she took loan of Rs.5,50,000/- from D.W.19 to develop item NO.1 of asset and at the advice of the Branch Manager and as the development work on asset No.1 took time, she deposited the said amount in the form of above FDR's and the Branch Manager had given a loan of Rs.2 lakhs and
Rs.3,10,000/- in two occasions on the said deposits and she spent for the development of asset No.2. D.W.19 also deposed about his giving Rs.5,50,000/- for affecting repairs on asset No.2 to wife of AO. What the learned counsel for AO sought to contend is nothing but explaining the manner in which these deposits came in the name of wife of AO and that has to be looked into in the later stages.
So in so far as standing of these Items in the name of wife of AO is concerned, virtually there is no dispute as such they are tagged to the AO.
134. Item No.14: These are the investments made in Unit Trust of
India in the name of children of AO under Sub Items 1 to 3 to a tune of
63
Rs.50,000/-, Rs.50,000/- and Rs.50,000/- respectively.
135. Sub Item No.1:
According to the evidence of P.W.40 the Investigating Officer he depsoed that the AO invested an amount of Rs.50,000 in Unit Trust of India under
Children Growth Gift Fund Scheme in the name of his daughter Jagarapu Sindhuja vide application No.996200575, dt.6-7-99. During investigation he received letter from LW69 the Manager, Unit trust of India Investor Services Limited (PW22). Ex-
P61 is the letter (already marked). Hence the value of the certificate Rs 50,000/- is added to the asset of A.O.
136. Sub Item No.2:He (P.W.40) deposed that the AO invested an amount of Rs 50,000 in Unit Trust of India under Children Growth Gift Fund Scheme in the name of his daughter Jagarapu Jahnavi vide application No.996200574 dt.6- 7-99. During investigation. Ex-P61 is the letter ( already marked).Hencethe value of the certificate Rs 50,000/- is added to the asset of A.O.
137. Sub Item No.3: P.W.40 deposed that the AO invested an amount of Rs 50,000 in Unit Trust of India under Children Growth Gift Fund Scheme in the name of his daughter Jagarapu Jahnavi vide application No.996200575 dt.6- 7-99. Ex-P61 is the letter (already marked). Hence the value of the certificate Rs 50,000/- is added to the asset of A.O.
138.During cross examination P.W.40 denied that the investment under sub item No.1 was invested by father of AO in the name of his grand daughter and that sub item No.2 and 3 were invested by the sister of AO in the name of eldest daughter of AO and that the documents collected by him also proves the same.
139.The learned counsel for AO contended that these investments were not made by AO from his sources of income. According to the evidence of P.W.22 the
Branch Manager of Unit Trust of India, Visakhapatnam during cross examination the amount of Rs. 50,000/- was invested in the name of Jagarapu Sindhuja by
Jagarapu Apparao as per application. D.W.19 deposed about the same. The investment in the name of Jahnavi is concerned i.e., Rs.1 lakh it was deposed by
D.W.19 that it was the amount invested by D.W.11 younger sister of AO Smt.
Lalam Satyavathi. P.W.22 was also shown an application bearing 6200575.
64
According to him the Donor was Lalam Satyavathi. In Ex.P.61 application
No.6200575 is shown twice but one application should be 62000576. D.W.11 the younger sister of AO deposed that she made investment of Rs.1 lakh in UTI in the name of Jahnavi and gifted the bond to her in the year 1999. Hence, these investments were not made by AO.
140.By virtue of the evidence let in and the contentions advanced an amount of Rs.50,000/- i.e., investment amount is standing in the name of daughter of AO by name J. Sindhuja. Another amount of Rs.1 lakh in two amounts of
Rs.50,000/- each are standing in the name of another daughter of AO J. Jahnavi.
Admittedly D.W.11 the younger sister of AO is examined before this Court and
D.W.19 the father of AO deposed that he made deposit of Rs.50,000/- in the name of J. Sindhuja. According to D.W.11 she made deposit of Rs. 1 lakh in the name of
J. Jahnavi. Now it is a matter of appreciation as to whether these amounts were really invested by D.W.11 and D.W.19. Before going to appreciate the same I would like to refer here the evidence of P.W.22.
141.Coming to the evidence of P.W.22 he has been working as Branch in charge, Unit Trust of India, Visakhapatnam since, 2009. Their office furnished a letter on Dt. 25.04.2004 to the Inspector, ACB, Visakhapatnam at a request.
Ex.P61 is the letter Dt. 25.04.2004 issued by the then Branch Manger, Unit Trust of
India Visakhapatnam furnishing details of investments in the name of Jagarapu
Sindhuja and Jagarapu Jahnavi for an amount of Rs. 50,000/- and 1,00,000/- respectively. During cross examination he deposed that the amount of Rs. 50,000/- was invested in the name of Jagarapu Sindhuja by Jagarapu Apparao as per application. Unless he see the original applications he cannot say who was the donor for the amount of Rs.1,00,000/- in the name of Jahnavi as per Ex.P61 for
Item Nos.2 and 3. As per the copy of application shown to him ( seized document) there was investment of 1,00,000/- in the name of Jagarapu Jahnavai under application No.6200576 and the donor was Lalam Satyavathi. Cheque for Rs.
1,00,000/- was issued. He did not bring the original record pertaining to issuance of Ex.P61 to the court. As per the application shown to me ( seized document) an amount of Rs. 25,000/- was invested in the name of Jagrapu Bhargavi and the 65 donor was Jagarapu Lalitha kumari under application No.5978767.
142.It is to be noticed that the daughters of AO are no other than the members in relation to the family of AO as per A.P. Civil Services (Conduct) Rules, 1964. It is not that AO obtained prior permission from the Government when his father and his sister were proposed to make deposits in the name of their children to a tune of Rs.50,000/- + Rs.1,00,000/- respectively. According to the evidence of
P.W.40 he searched the locker standing in the name of AO and seized Ex.P.98 and
P.99 files which were secreted in the locker. The seizure of Ex.P.99 made up file from the locker is not at all in dispute. As seen from Ex.P.99 what is surprising to note is that AO preserved even the so called applications of L. Satyavathi (D.W.11) and copy of cheque for Rs.1 lakh. It is to be noticed if the sister of AO i.e., D.W.11 had intention to help AO financially one has to look into as to whether AO was really in need of any financial need from D.W.11. Further if a sister like D.W.11 renders any help to AO by depositing huge amount of Rs.1 lakh the natural reaction would be to preserve the fixed deposit. What is the intention of AO even in preserving the so called application of D.W.11 L. Satyavathi that too in a locker is not known. All these circumstances goes to show that AO appears to be is of such a person that he had taken every precaution to face any complications in future. A man of reasonable prudence would not venture to preserve the application of
D.W.11 when she was allegedly offering a sum of Rs.1 lakh by way of deposit in the name of daughters of AO. These are pecuniary aspects which is coming from
Ex.P.99. Virtually there appears to be no bona fide intention on the part of AO even in preserving the so called applications of L. Satyavathi (D.W.11). It could be only with a deliberate intention. Further to find out the genuineness of the transaction it is pertinent to look into the circumstances hovering around the evidence of D.W.11.
143.According to the evidence of D.W.11 her husband was expired in the year 1994. He was having 10 acres of ancestral land at Lalam Koduru village. He had a shopping complex near Collector office, Visakhapatnam. Here AO was in the rank of Forest Range Officer and even according to his defence which this Court has to find out the genuineness that he was receiving considerable amounts from his father out of charity in the form of deposits in the name of children and further he 66 was receiving amounts in the name of children from his father-in-law and brother- in-law. When the defence of AO is that everybody i.e., relatives of him are coming forward by offering amounts out of charity to him what made D.W.11 to deposit
Rs.1 lakh in the name of children of AO though D.W.11 was having two twin sons and though her husband was expired in the year 1994. The whole transaction regarding these amounts in the name of children of AO said to be deposited by father of AO and his sister is suffering with any amount of flaws and improbabilities and no reliance can be placed upon the defence theory in this regard. Generally the application in the name of D.W.11 is supposed to be in her custody. There is a deliberate intention on the part of AO in preserving the so called application that too in a locker. Hence, I am not at all convinced to accept the contention of the AO that these amounts can not be tagged to AO. Hence, I am inclined to tag these assets to AO as such they are tagged to AO.
144. Item No.15: These are investments in Sriram Investment Bonds in the name of AO and his wife to a tune of Rs.4,51,000/-
According to the evidence of P.W.40 the A.O had taken member ship in 50 month chit for the chit amount of Rs 5,00,000/- in Sriram Chits Private Limited,
Gajuwaka Visakhapatnami vide Chit Group No.JXLI-31 from 10/99 to 4/2002 in the name of his sister Smt. Lalam Satyavathi.. The A.O paid Rs.4,22,944/- towards monthly subscription excluding the dividend till the 31-3-2002. Ex-P83 is the letter cum ledger extract of Account No.7556 (already marked). During investigation
LW70 the Manager, Sriram Chits Private Limited Gajuwaka (PW35) furnished the statement of account of the above chit Group(Ex.P83). Hence the total amount of
Rs 4,51,000/- invested in bonds has been added to the asset of A.O. During cross examination he denied that AO did not take chit in the name of L.Satyavathi and he did not pay Rs.4,22,944/- towards monthly subscription and that he did not collect any material to show the same. Item No.15 consists of 9 bonds and he did not collect the applications of 9 bonds. He do not know whether L.Satyavathi utilized the bid amount and some other amount in making investment in item no.15.
145.The learned counsel for AO contended that P.W.15 is an employee of 67
Sriram Chits Pvt., Ltd., Gajuwaka Branch (here witness is P.W.35 but not P.W.15 as verified by the Court) and he identified the signature of P. Mruthyunja the then
Branch Manager, Gajuwaka who issued Ex.P.83 letter dt.9.4.2004. According to him an amount of Rs.4,51,000/- was deposited in the name of J. Ganesh and J.
Lalitha Kumari for chit value of Rs.5 lakhs. He deposed as per Ex.P.83. The contents of Ex.P.83 are incorrect and it was issued by Mruthyunjaya at the instance of P.W.40. The whisper in Ex.P.83 as if AO and his wife are the bond holders is incorrect. According to the defence theory they are only nominees. D.W.11 spoken that she obtained chit in her name for the worth of Rs.5 lakhs and received prize amount of Rs.4,50,000/- and made 8 deposits with Shriram chits each of
Rs.50,000/- (Rs.50,000 x 8) and one deposit for the value of Rs.51,000/- in her name. Since her husband was no more by then, she made AO and his wife as nominees. Later she transferred all the FDRs in the name of V. Ramani when she was in need of money and that the said FDRs were encashed and she repaid the said amount to her. Through P.W.35 Ex.D.7 and D.8 were marked. Ex.D.7 is the letter and Ex.D.8 is the set of 9 Photostat copies of applications. D.W.11 had potentiality to subscribe chit of Rs.5 lakhs. P.W.40 intentionally tagged this asset to
AO and as such it is deleted.
146.Now turning to the evidence of P.W.35 he deposed that he has been working as Branch Manager, Sriram Chits Pct. Ltd., Gajuwaka Branch,
Visakhapatnam since September, 2012. He can identify the signature of
P.Mruthyunjaya, the then Branch Manager, Gajuwaka. Ex.P83 is the letter Dt.09- 04-2004 of Sri. Mruthyunjaya issued to Inspector, ACB, Visakhapatnam by submitting the details of chit in the name of L.Satyavathi and deposits in the name of J.Ganesh and J.Lalith kumari along with copy of account ledger extract. An amount of Rs.4,51,000/- was deposited in the name of J.Ganesh and J.Lalitha kumari. Chit No.L1/31 stands in the name of L. Satyavathi for value of Rs.
5,00,000/-. During cross examination he deposed that bid amount in the name of
L.Satyavathi was converted in to 9 bonds. Ex.P83 contains the signature of P.
Mruthyunjaya. The copy of letter shown to him bears the signature of
P.Mruthyunjaya. It contains the particulars of bonds shown in Ex.P83. Ex.D7 is the 68 copy of the said letter ( Ex.D7 is filed along with memo). The xerox copies of applications 9 in number shown to him is relating to the bonds in Ex.P83. Ex.D8 is the set of the said 9 xerox copies of applications (Ex.D8 is filed along with memo).
Lalam Prabhakar worked as development officer in Sri Ram Chits Pvt. Ltd,
Anakapalli.
147.Now coming to the evidence of D.W.11 what she deposed is that she was the subscriber for the chit value of Rs. 5,00,000/- in Sriram chits. She received prize amount of Rs. 4,50,000/- in the said chit. She made fixed deposits in Sriram Chits to tune of Rs.4,51,000/- i.e., 50,000/- x 8 and Rs.51,000/- x 1 in her name out of the prize amount received as above. She shown the AO and his wife as nominees for the said deposits as her husband is no more by then.
Subsequently she transferred the said FDS in the name of V.Ramani as they requested her for money. They encashed the deposits. Later they repaid the amount to her. During cross examination she denied that she invested the amount in Sriram chits from the sources of AO, his wife and his father only. She denied that the amounts invested in the Sriram chits by way of bonds was only from the sources of AO.
148.Now it is crucial to look into Ex.P.83. Ex.P.83 is the information sent by Sriram Chits to the Inspector of Police, ACB. There is no dispute that the chit in question was standing in the name of D.W.11 L. Satyavathi. It reads that she became a successful prized subscriber and she made fixed deposit of the prize amount under 9 bonds @ Rs.50,000/-x 8 and @ Rs.51,000 x 1. So the total amount comes to Rs.4,51,000/-. It is interesting to note that the bonds 1 to 9 are in the name of wife of AO, AO, AO, AO, wife of AO, wife of AO, wife of AO, wife of
AO and wife of AO respectively. A.O and his wife are shown as bond holders. So what P.W.35 deposed is in accordance with the contents of Ex.P.83 letter. The contention of the AO is that the contents of Ex.P.83 are incorrect. It is quite difficult to appreciate such a contention. His contention that he and his wife are shown as only nominees in the bond is not probablised. AO is relying on Ex.D.7 and D.8. As seen from Ex.D.7 there is no dispute that the name of the applicant is
P. Satyavathi. The name of the persons in whose name the bonds are standing are 69
AO and his wife. This letter is said to have contained the signature of P.
Mrutyunjaya according to P.W.35. It is to be noticed that this letter does not contain any date. Ex.P.83 letter is also signed by P. Mrutyunjaya and Ex.P.83 is dt.9.4.2002. It is not known whether Ex.D.7 is issued prior to Ex.P.83 or subsequent to Ex.P.83. It is to be noticed that when Lalam Satyavathi has two sons it is quite improbable that she ventured to show the names of AO and his wife as nominees. This Court is not able to accept the said contention in view of the fact that the names of wife of AO and AO are shown in different bonds. If one has to show the names of other persons as nominee to any amount, there should not be any specific mention that one person is relating to one amount and another person is relating to another amount. The very so called act of D.W.11 showing her brother and sister-in-law as nominees especially when she has two sons is coming in the way of defence to contend that AO and his wife are shown as nominees. In my considered view Ex.D.7 letter which does not contain the date showing the AO and his wife as nominee can not be believed. It is interesting to note that Ex.D.8 is set of various applications signed by L. Satyavathi. These applications does not reveal that the wife of AO and AO are shown as nominees. On the other hand, these applications shows that they are filed seeking to issue the bonds in the name of AO and his wife. Virtually they do not contain any whisper that they are shown as nominees. Even Ex.D.8 is coming in the way of accused to contend that they are shown as nominees. So the contents of Ex.P.83 and Ex.D.7 runs contra with each other as Ex.P.83 contains that AO and his wife are bond holders and Ex.D.7 contains that they are nominees. Ex.D.8 is not supporting the contention that they are nominees. Ex.D.7 which is xerox copy without revealing any date of issuance can not be believed in my considered view. It is to be noticed that when D.W.11 is having two sons it is quite improbable to assume that she shown the name of AO and his wife as nominees. It is to be noticed that according to the defence subsequently D.W.11 transferred the FDR's in the name of one Ramani and later they were encashed. It is not understandable as to how Sriram Investment allowed the transfer of bonds when they are standing in the name of AO and his wife as per Ex.P.83. Ex.D.8 does not support the contention of AO that his wife and 70 he are only shown as nominees. As this Court already pointed out the very act of
AO in getting the applications filled up by D.W.11 in a locker under Ex.P.99 file pertaining to asset No.14 is quite suspicious. All these circumstances goes to show that AO is behind D.W.11 in getting investments in the hit and later in converting the prize amount into the FD bonds in his name and his wife. There are no probabilities made in the defence of AO in this regard. Hence, I am inclined to tag this asset to AO to a tune of Rs.4,51,000/-.
149. Item No.16: This is security deposit paid towards electrical connection to the house of Smt. P. Lalitha Kumari, w/o AO at Anakapalli and its value is shown as Rs.1000/- and P.W.40 deposed about the same and spoken about
Ex.P.64 and P.65 letters.
150.The contention of the learned counsel for the AO is that this is pertaining to the wife of AO only.
151.Here, I would like to make it clear that the wife of AO is member in relation to the family of AO. Hence, I am inclined to tag this asset to AO.
152. Item NO.17: SHARES AND DEBENTURES 153.Sub Item Nos.1 and 2: According to the evidence of P.W.40 the
Investigating Officer during the course of house search of the house of Sri Lalam
China Kondaiah, father in law of AO situated at D.NO. 3-5-2, Narasingarao peta
Near Sreedhar Lodge, Anakapally debentures worth Rs.1,04,000 in Sri Ram investments limited, 123, Angappa Naikan Street, Chennai in the names of his daughter and others were found and the same were seized in the presence of mediators 1) Sri Sajja Srinivasa Rao s/o Purnachandra rao, 40 years, Veterinary
Asst. Surgeon, Frozen Service Bull Station, Old Diary Farm, Visakhapatnam 2) Sri
Koleti Lakshmanarao s/o Venkataramana, 54 years, Superintendent O/o Old Diary
Farm. LW-72 the Deputy General Manager, Shriram Investments Limited (PW34) furnished Ex.P81. Ex.P39 is the made up file ( already marked) containing share certificates. Hence the amount Rs 1,04,000/- invested in debentures is added to the asset of A.O.He (P.W.40) further deposed that there are 2500/- equity shares each face value of Rs 10/- all worth Rs.25000/- in Sri Ram investments limited,123,
Angappa Naikan Street, Chennai in the name of his brother-in-law Lalam 71
Prabhakara Rao vide Regd. folio No. 48629. The inspector ACB, Rama krishna prasad seized Ex.P32 file containing original share certificates from the house of
Jagarapu Lalitha Kumari. Ex-P82 is the letter ( already marked) regarding the above shares issued by Sriram Investments Ltd., Hence the amount Rs 25,000/- invested in Shares is added to the asset of AO.During cross examination he (P.W.40) denied that the accused is not concerned with sub item No.1 and that an amount of Rs.64,000/- in this item was invested by father and wife of AO and that
Ex.P81 proves the same. He also denied that the AO has nothing to do with sub item No.2 and that it belongs to Lalam Prabakara rao and Ex.P82 proves the same.
154.The learned counsel for AO contended that the total investment in the name of children of AO comes to Rs.64,000/- only but not Rs.1,04,000/- and AO and his family members are not concerned to the deposits standing in the name of others. D.W.10 who is brother-in-law of AO was Development Officer, Shriram Chits and through him the said shares were taken. In Ex.P.81 apart from the names of the children of AO 4 other names are also mentioned. Through P.W.34 9 Photostat copies of applications relating to the debentures mentioned in Ex.P.81 were marked as Ex.D.6. The names of nominees and the applicant are mentioned in the said applications. The amounts stands in the name of Jahnavi are Rs.8,000/- +
Rs.16,000 and in the name of Sinduja are Rs.8,000/- + Rs.16,000/- and in the name of Bhargavi is Rs.16,000/- and the total investment is only Rs.64,000/-.
D.W.19 and D.W.18 invested these these amounts in Sriram Chits. As per Ex.D.6 it is clear as to who signed the applications. D.Ws.18 and D.W.19 signed the applications in the name of minor children. D.W.18 and D.W.19 also deposed about the same and they shown it in their income tax returns. He further argued that in so far sub item No.2 is concerned the name of the holder of shares is Lalam
Prabhakar Rao who paid Rs.25,000/- and there is no basis for Investigating Officer to tag it to AO and D.W.10 happened to be present on the date of ACB raid in the house of AO and the document pertaining to these equity shares were seized from his suitcase, as such this can not be tagged to AO.
155.Now I would like to appreciate the evidence in this regard. As seen from Ex.P.81 it is sent by Sriram investments to the Inspector, ACB furnishing the 72 investments in Sriram investments to a tune of Rs.1,04,000/-. Now by virtue of the contentions advanced and the particulars of the bonds the investments in the name of children of AO was only to a tune of Rs.64,000/- but not as contended by the prosecution. As seen from Ex.D.6 those are bunch of applications in the name of L.
Apparao and wife of AO. According to the AO they invested the said amount. Here
I would like to make it clear that the daughters of AO are no other than the members of family in relation to AO. It is to be noticed that according to the defence of AO it is wife of AO and father of AO who invested these amounts together. If that is the case it is for the AO to explain as to why no piece of paper could be found in his residence especially when his wife invested some amounts.
No piece of paper could be found in the residence of J. Apparao in this regard. It is the investigating agency who secured the proper evidence in this regard.
Ultimately the AO produced xerox copies of Ex.D.6 applications said to be filled up by J. Apparao and his wife. As this Court already pointed out the facts and circumstances are such that everybody are said to be coming forward to invest amounts in the name of children of AO and the whole episode appears to be quite improbable and the very act of the AO in keeping the so called applications in the name of his sister in his bank locker shows voluminous suspicious circumstances and it is quite difficult to believe that these are the amounts invested by his wife and father. It is to be noticed that the father of AO appears to be not educated. It is not that he is well versed in bank transactions etc., Under the circumstances, I am not convinced to accept the theory of the defence that sub item No.1 of Item
No.17 is invested by the father of AO and wife of AO out of their sources. Hence, as the children of AO are members in relation to the family members of AO, I am inclined to tag sub-item 1 of Item No.17 to AO to a tune of Rs.64,000/-.
156Coming to sub-item No.2 of item No.17 it is interesting to note that according to the defence when D.W.10 was happened to celebrate his birthday one day prior to ACB raid in the house of AO at Anakapalli and when he was having those documents in the suitcase along with him, ACB seized those documents.
D.W.10 deposed such a version. Now as evident from Ex.P.82 letter and also made up file which is seized from the residence of AO the original debentures furnishing 73 the share certificates in the name of Lalam Prabhakar is available. It is to be noticed that the share certificates whose particulars are mentioned in Ex.P.82 letter and further in Ex.P.32 shows that way back from the year 1998 the investments in the name of Lalam Prabhakarrao were made. The ACB raid was in the year 2002.
It is quite improbable to assume that D.W.10 while he was going to residence of AO to celebrate birthday party one day prior to ACB raid carried all these documents physically in his suitcase to the residence of AO. The very evidence of D.W.10 that he carried all those documents to the residence of AO in a suit case is nothing but unnatural and improbable. So the fact is that the documents pertaining to these share certificates were physically seized from the residence of AO and it is nothing but Ex.P.32 made up file. The very custody of documents right from the year 1998 goes to show that there is any amount of unnaturality and improbability in the evidence of AO as such, I am of the considered view that the AO is behind in getting investments in the shares in Sriram investments in the name of L.
Prabhakar. Hence, I am inclined to tag sub-item No.2 also to AO 157 Item No.18. According to the evidence of P.W.40 the A.O deposited an amount of Rs 25,000/- on 6-7-99 in Indian Bank, Maharanipeta, Visakhapatnam in the name of his daughter Sindhuja under FDR No. 866486 vide LFNo 30/36. Page number 7 of Ex.P99 made-up file is the said FDR (already marked). As pointed out earlier this Ex.P.99 contains so called application of D.W.11 for item No.2 and 3 of asset No.14 which is suspicious. It in this Ex.P.99 the FD of Rs.25,000/- can be found. As evident from the written argument of the learned counsel for AO there is no dispute that AO deposited this amount in the name of his daughter as such it is tagged to the AO.
158. Item No.19: This is the deposit made towards telephone bearing
No.35683 in the name of AO to a tune of Rs.2,000/-. P.W.40 deposed about this and spoken about Ex.P.111 letter. As evident from the written arguments there is no dispute about this asset. Hence it is tagged to the AO.
159. Item No.20:
According to the evidence of P.W.40 during the house search of the house of Sri Lalam China Kondaiah, s/o Tataiah, bearing D.No.5-3-2, Koteswararao 74
Street, Narsingaraopeta, Anakapalli, (father-in-law of AO), a newly unpacked AC machine Carrier company was found. The original invoice receipt No.0209209 dt.
25-5-01 for Rs.26,500/-was seized. Page number 3 and 4 of Ex-P42 is the original invoice receipt (already marked). Ex-P112 is the letter No.Nil, dated 12-7- 2002 furnished by LW-76 Divisional Operation Manager.Hence the cost of Air
Conditioner Rs 26,500/- is added to the asset of A.O. During cross examination he denied that Item No.20 was purchased by J.Apparao and Ex.P12 proves the same and that J.Apparao shown the same in his IT returns.
160.The contention of the learned counsel for AO is that page No.3 and 4 of Ex.P.42 is invoice pertaining to A.C machine and it stands in the name of D.W.19 and it was seized from the house of D.W.8 who is father-in-law of AO and D.W.10 purchased the said machine with the funds of D.W.19 and there is nothing on record to show that it was purchased by AO.
161.Admittedly the document pertaining to this asset is seized from the house of father-in-law of AO. It stands in the name of D.W.19. Under the circumstances as it is seized from the residence of D.W.8 there remains nothing except the evidence of P.W.40 to tag this asset to AO and as such I am not inclined to tag it to AO and it is deleted.
162. Item NO.21: This is a Titan Watch in the name of AO and its value is shown as Rs.10,500/-. P.W.40 deposed about this and stated that Page No.4 of
Ex.P.51 made up file is the original invoice and there is evidence of P.W.25 in this regard. The learned counsel for the AO in his written argumens did not dispute about this asset as such it is tagged to AO.
163. Item No.22: This is Bajaj Motor Cycle bearing AP 31 8294 standing in the name of AO and its value is shown as Rs.35,200/-.
According to the evidence of P.W.40 during house search of the house of A.O on 9-4-04 at premises bearing D.No.5-37-1 (belonging to Sri Vemulapudi
Narsimhamurthy), Near Singh Doctor Hospital, K.D.Peta Road, Narsipatnam, the
Bajaj Motor Cycle AP31 8294 was found parked in the compound wall. He examined
LW78(PW23) in this regard who furnished Ex.P62 letter and Ex.P63 B Register extract ( already marked).The AO did not obtain permission for the purchase 75 of the motor Cycle. He examined LW80 (PW26) who furnished the information under the letter Dt. 27-03-2004 I.e., Ex-P66 ( already marked). Hence the cost of the vehicle Rs 35,200/- is added to the asset of A.O.
164.The learned counsel for AO contended that P.W.40 considered the original value of the vehicle and it is a second hand vehicle purchased by AO from his brother-in-law and as such its value is Rs.19,000/- only.
165.This Court has considered the evidence in this regard. Ex.P.62 and
P.63 are the letters furnished by P.W.23. Admittedly according to P.W.23 the first purchaser was L. Prabhakararao for the value of Rs.35,200/-. The B registrar shows that it is second hand vehicle. The Investigating Officer can not take into consideration the original value as the value of the motor vehicle will be decreased by lapse of time. Here the only evidence is that of the evidence of D.W.20 and according to him its value is Rs.19,000/- only. As the prosecution did not ascertain the value of the vehicle from Lalam Prabhakarrao, it is reasonable to consider its value only as that of Rs.19,000/- but not Rs.35,200/-. Hence, this asset is tagged to the AO at the value of RS.19,000/-.
166. Item No.23:
This item consists of two sub items. Sub Item No.1 is the value of house hold articles found during the house search of AO located at D.NHo.5-37-1 near Singh Doctor Hospital, K.D. Peta Road, Narsipatnam and its value is shown as
Rs.3,20,154/-. It is said to be the residence of AO. Item NO.2 is the house hold articles found during the house search of the house of Smt. Jagarapu Lalitha
Kumari, w/o AO situated at D.No.4.3.33, Bhargavi Plaza, Woodpeta, Anakapalli and its value is shown as Rs.1,03,752/-.
167.Coming to the evidence of P.W.40 he deposed that house hold articles were found during the house search of the house of AO located at D.No.5-37-1 (belonging to Sri Vemulapudi Narsimhamurthy), Near Singh Doctor Hospital,
K.D.Peta Road, Narsipatnam. The total value of the inventory of the house hold articles came to Rs 3,20,154/- including Rs 27,700/- the value of silver articles. He further deposed that the ACB also searched the residential premises of Smt.
Jagarapu Lalitha Kumari w/o A.O situated at D.NO. 4-3-33, (Bhargavi Plaza), 76
Woodpeta, Anakapalle under the occupation of A.O on 09-04-02 in the presence of mediators by Inspector ACB, K.V.R.K. Prasad.Ex-P28 is the inventory proceedings ( already marked) incorporating the movables including gold articles. The value of the articles were arrived at Rs.1,03,752/-. During cross examination AO disputed the value of these articles. P.W.40 denied that the value of the house hold articles in item No.A and B are excessive and that the value of the articles were not furnished by AO and his wife.
168.The learned counsel for AO contended that P.W.17 is the mediator who according to the prosecution participated in the searches. The values of the articles have been noted to the dictation of the ACB but not AO. The wife of AO was not present at the time of house search at K.D.Peta road. Many gift articles were shown as if they were purchased. They have boosted up the values of the articles. Some of the articles were gifted by friends and relatives on different occasions. New sarees, blouses, curtain clothes, sewing material etc., given by the residents of
Narsipatnam for stitching was also tagged. AO is enclosing Annexure and its value is only Rs.2,005,594/-. He argued that in respect of sub item No.2 of Item NO.23 he is also enclosing Annexure and its value may be taken as Rs.61,152/-.
169.Now admittedly according to the evidence of P.W.15 and 17 they participated in the ACB raid by acting as mediators at the house search of residence of AO at Singh Doctor Hospital, K.D. Peta Road, Narsipatnam as well as at the house located at Bhargavi Plaza, Wood Peta, Anakapalli as the case may be and they prepared inventory reports. The AO agitated before them during cross examination that he or his wife never furnished the values as mentioned in the inventory. This Court has verified the inventory reports under Ex.P.46 and Ex.P.28.
It is to be noticed that the articles in Ex.P.46 and P.28 were ranging from very old.
It is very difficult for any person to have a mathematical rememberance of the domestic articles purchased in various years. It is a fact that the ACB did not ascertain its value as on the date of ACB raid. In a case of this nature when house hold articles shown by the prosecution is in serious dispute and when there is no definite evidence from both sides in this regard, it is quite reasonable to take account the value of the house hold articles from 50% to 70% or so. Here it is a 77 case that AO is coming with a version that the articles in sub-item No.1 may considered as Rs.2,05,594/- and sub-item NO.2 may be considered as Rs.61,152/-.
In respect of annexure he shown some items as that of the cloth material which was given to his wife for stitching purpose. Without giving any finding as to whether the wife of AO was really doing stitching or not as the prosecution has no reasonable basis to putforth this figure, I am of the opinion that the figures putforth by the defence is not less than 50%. It is above the 50% as such I am inclined to treat the value of item No.1 as that of Rs.2,05,594/- and sub-item No.2 as that of
Rs.61,152/-. Accordingly sub item No.1 under item No.23 is tagged to the AO at the value of Rs.2,05,594/- and sub-item No.2 of item No.23 is also tagged to the
AO at the value of Rs.61152/-. Hence, these are tagged to the AO accordingly.
170. Item No.24:
This is gold ornaments found in the locker No.30 and 13 of State Bank of India, Hyderabad, Anakapalli in the name of Lalam Uttara Kumari @ Lalitha
Kumari w/o AO and the prosecution ha shown its value as Rs.90,000/-.
171.Coming to the evidence of P.W.40 he deposed that during the course of investigation, he searched the locker bearing No.30 & 13 of State Bank of
Hyderabad, Anakapalle on 21-06-2002 in the presence of mediators, AO and his wife and found gold ornaments. Ex.P97 ( already marked) is the mediators report.
172. Hence the value of the gold Rs 90,000/- is added to the asset of A.O.
During cross examination he denied a suggestion that item No.24 was not purchased during the check period.
173.The learned counsel for AO contended that in Ex.P.97 mediators report the gold ornaments found in the locker have been noted and the Investigating
Officer valued it as Rs.90,000/-. In fact D.W.18 got purchased 16 tulas of gold jewellery by her parents besides 2 kgs of silver at the time of her marriage. D.W.8 also deposed about the same D.W.19 presented 12 tulas of gold. AO informed about same to his department in his Annual Property statement. D.W.18 during check period purchased gold worth Rs.10,000/- and the same was reflected in her
IT returns. Hence, the value shown in this regard is liable to be deleted.
174.This Court gave its careful consideration to the above said contentions.
78
According to P.W.15 Ex.P.36 is made up file pertaining to purchase of gold articles seized from the residence of AO during the course of house search. The seizure of it is not in dispute. Now if Ex.P.36 made up file papers relating to purchase of gold articles from 1 to 25 pages from the residence of AO is taken into consideration, it contains as many as 25 documents. If one has carefully looked into these documents those are pertaining to the years 2000-2001 or so. If one has to look into these documents one can easily came to a conclusion that the value of the gold articles purchased by AO or h is family is at the cost not less than of Rs.90,000/- .
It is not possible to ascertain the value of the gold purchased but it is much more than the value putforth by AO. Considering Ex.P.36 and looking the value shown by the prosecution, I am of the considered view the value shown by the prosecution is quite considerable and even it appears to be less than original value as such, I am inclined to treat it as value of Rs.90,000/-. Ex.P.36 documents seized from the residence of AO contains various calculations even running into lakhs but it does not ultimately show the exact figure. Under the circumstances, there is no merit in the defence theory that the AO purchased the gold only worth of Rs.10,000/- during the check period. Hence, I am inclined to treat its value as Rs.90,000/- as such it is tagged to the AO.
175. Item No.25: This is the amount said to be lend by Jagarapu
Apparao father of AO to one Jagarapu Appalanaidu to a tune of
Rs.40,000/-:
Coming to the evidence of P.W.40 he deposed that during investigation, Sub Registrar, Elamanchili, Visakhapatnam District furnished a copy of document No.10/2001 dated 18-01-2001 and it reveals that Sri Jagarapu
Apparao lent Rs 40,000/- to Sri Jagarapu Appala Naidu s/o Ayyanna, Nayanamma
Palem Village H/o Dupperu, Atchutapuram Mandal at an interest of Rs 2/- per Rs 100/- per month and in lieu of lending the money, he got the land document pledged in his favour till the payment of money.Ex-P113 is the certified copy of the document furnished by LW-61 Sub Registrar, Elamanchili. During cross examination he denied that AO had nothing to do with item NO.25 and he did not examine J. Appalanaidu.
79
176.The counsel for AO contended that this asset can not be tagged to the
AO. Admittedly when P.W.40 did not examine said Jagarapu Appalanaidu and when
Ex.P.113 reveals that J. Apparao lent the amount to Jagarapu Appalanaidu and when the original of Ex.P.113 is not seized from the custody of AO and when the prosecution has not explained about the custody of the original document, this asset can not be tagged to the AO as such it is deleted.
177.In the light of the above, the assets that are decided by the Court as can be attributed to AO as mentioned in the abstract of assets in tabular form is as follows:
ABSTRACT OF ASSETS
1. Purchased commercial complex styled as bhargavi 9,60,000.00 plaza in Anakapelle in the name of his wife Smt. Lalitha Kumari
2. Developments made on the above house (item 8,20,000.00 No.1)
3.Purchased house site at Saradanagar, Narsipatnam13,000.00
4.Purchased a flat constructed by the builder on the 3,00,000.00 above total site, in his name 5Developments made in the above flatDELETED 6Constructed RCC building in lalam Koduru DELETED Atchutapuram mandal 7Purchased agricultural land in papaiahpalem in the 4,90,000.00 name of his wife 8Purchased agricultural land in Papaiahpalem in the DELETED name of his father 9Purchased commercial complex in daspallah lay out, DELETED Visakhapatnam in the name ofhis father
10.Purchased house site in gandhi nagar, anakaple in 1,50,000.00 the name of his wife;
11.Purchased house site in G.M ward, anakapalle in the DELETED name of his father.
12.Bank Balances
1. S.B.Account bearing No. ASB/01/00551134 in 2,04,772.32 Andhra Bank, woodpeta, Anakapalli in his name
2. S.B Account bearing NO. SB/SRS /41 in Visakha 33,000.00 Grameena Bank, Narsipatnam
3. S.B. Account bearing No. SB/SRS/132 in DELETED Visakhapagrameena Bank, Narsipatnam
4. S.B Account bearing NO. 8515 in Bank of India , DELETED Anakapalle
5. SB.Account bearing No. ABG 20148 in Andhra 1,005.00 Bank, Narsipatnam
6. SB Account bearing No 00106083 in State Bank 24,909.00 of Hyderabad, Anakapalle
7. S.B account bearing NO. 8517 in Bank of India, 2,722.00 80
Anakapalle
8. S.B account bearing NO. 22635 in Visakhapatnam DELETED Co-operative Bank Visakhapatnam
9. S.B. Account bearing NO. ABS 553101 in Andhra DELETED Bank, Woodpeta,
10. S.B. Account bearing No. 8699 in Bank of India, 8,937.00 Anakapalle.
11. S.B. Account bearing NO. 006001005256 in 4,780.00 ICICI bank, Dwarakanagar, Visakhapatnam
12. S.B. Account bearing NO. 9025 in Bank of India, DELETED Anakapalle in the name of Sri. K.Krishnamurthy.
13.Fixed Deposits
1. The A.O has deposited Rs. 5,00,000/- in Bank of DELETED India, Anakapalle in the name of his father Sri.Jagarapu Apparao vide A/c No. DBD 5142
2. The AO has deposited Rs. 4,50,000/- in Bank of 4,50,000.00 india, Anakapalle in the name of his wife Smt. J.Lalitha Kumari vide A/c No. DBD 5356
3. The A.O has deposited Rs. 45,000/- on 29-12-45,000.00 2000 in State Bank of Anakapalle in th e name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326407
4. The AO has deposited Rs .45000/- on 29-12-2000 45,000.00 in State Bank of Hyderabad Anakapple in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326408
5. The A.O has deposited Rs. 55,000/- on 29-12-55,000.00 2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttarakumar @ lalithakumari vide TDR No. 0326409
6. The A.O has deposited Rs. 45,000/- on 26-12-45,000.00 2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326396
7. The AO has deposited Rs. 45,000/- on 26-12-45,000.00 2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326397
8. The AO has deposited Rs. 45,000/- on45,000.00 26-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326398
9. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326401
10. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDRNo. 0326402
11. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326403 81
12. The AO has deposited Rs. 45,000/- on 45,000.00 27-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326404 13.The AO has deposited Rs. 45,000/- on 45,000.00 26-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 03263975 14.The AO has deposited Rs. 45,000/- on 45,000.00 29-12-2000 in State Bank of Hyderabad Anakapalle in the name of Lalam Uttara Kumari @ Lalitha Kumari vide TDR No. 0326406 14Investment in unit trust of india in the name of children
1. The AO invested an amount of Rs. 50,000/- in 50,000-00 Unit Trust of India under Children Growth Gift fund scheme in the name of his daughter Jagarapu Sindhuja vide application NO. 996200575 dated 6-7-99.
2. The AO invested an amount of Rs. 50,000/- in 50,000-00 Unit Trust of India under Children Growth Gift fund scheme in the name of his daughter Jagarapu Jahnavi vide application NO.996200574 dated 6-7-99. 3.The AO invested an amount of Rs. 50,000/- in Unit 50,000-00 Trust of India under Children Growth Gift fund scheme in the name of his daughter Jagarapu Jahnavi vide application NO. 996200575 dated 6-7-99.
15.Investment in sriram investment bonds in the name 45,1,000.00 of AO and his wife
16. Security deposit paid towards electrical connection 1,000.00 of the house of Smt. Lalitha Kumari w/o AO at Anakapalle vide SC NO. 22778
17.Purchased shares and debentures
1. In the name of Children and others:64,000,00
2. AO purchased 2500 equity shares each face value 25,000.00 of Rs. 10/- all worth Rs. 25000 in Sri. Ram Investments limited, 123, Angappa Naikan Street, Chennai in the name of his brother-in-law Lalam Prabhakara rao vide Regd folio NO. 48629
18. The AO deposited an amount of Rs. 25000/- in 25,000.00 Indian bank Maharanipeta, Visakhapatnam in the name of his daughter Sinduja
19. Deposit made towards telephone bearing NO. 35683 2,000.00 in the name of AO
20.Purchased 1.5 tonn ac machine in the name of his DELETED father
21.The AO purchased titan watch in his name10,500.00
22.The AO purchased bajaj motor cycle A.P 31 8294 in 19,000.00 his name
23.House hold articles found in the residential premises of AO and his relatives 82
A) House hold articles found during the house 2,05,594.00 search of the house of AO located at D.No.5-37-1 (belonging to Sri Vemulapudi Narsimhamurthy), near Singh Doctor Hospital, KD Peta Road, Narsipatnam B) House hold articles found during the house 61,152.00 search of the house of Smt. Jagarapu Lalitha Kumari, w/o AO situated at D.No.4.3.33, (Bhargavi Plaza), Woodpeta, Anakapalle
24.Gold ornaments found in locker No.30 and 13 Sate 90,000.00 Bank of Hyderabad, Anakapalle in the name of Lalam Uttara Kumari @ Lilitha Kumari w/o AO
25. Lending amount to Sri Jagarapu Appala Naidu of DELETED Dupperu village Total Assets Rs. 51,17,371.00
178.Now I would like to deal with the case of the prosecution and the defence with regard to the abstract of income shown in Annexure-III of the charge sheet.
I N C O M E
179. Item No.1: Pay and allowances of AO during his service to a tune of
Rs.5,16,121.00/-
According to the evidence of P.W.40 theA.O joined in Government service as Forest Ranger Trainee, Forest Department on 8-11-93 and under went training till 31-10-95. As per his investigation and as per Ex.P44, P45, P72, P73,
P75 to 77 the AO during his entire service drawn pay and allowances of Rs.
5,16,121/- ( net amount)
180.This Court would like to make it clear that there is evidence of P.W.16 and P.W.30 also in this regard and further there is evidence of D.W.14 who was examined by the defence in support of the defence theory and Ex.D.23 is marked through the evidence of D.W.14.
181.Coming to the evidence of P.W.16 he deposed that he has been working as Senior Personal Assistant in the office of Divisional Forest Range Office,
North Production Division, Balagat. Previously he worked as Stenographer for
Principal Forest Rangers college, Balagat in the year May, 2003. One G.P. Badula
was the then principal of the said college. He can identify his signature of the letter
Dt.03.05.2003. Ex.P44 is the letter issued by the then principal to the inspector,
ACB, Visakhapatnam. He also put side initial on the letter as well as on the 83 statement of the salary paid to the AO from November, 1993 to October, 1995. He prepared the statement as per the entries in cash book maintained in the office.
Ex.P45 is the statement prepared by him. Principal and he signed on Ex.P44 and
Ex.P45. During cross examination he deposed that Principal and he signed on
Ex.P44 and Ex.P45 by going through the original record. He stated that by the time he prepared Ex.P44 and Ex.P45 the cash book was in the custody of the concerned clerk.
182.Coming to the evidence of P.W.30 he deposed that he has been working as Deputy Conservator of Forest, Vizianagaram since 2012. Previously he worked as Divisional Forest Officer, Vizianagaram, from 2002 to 2005. In response to the letter Dt.08.10.2003 of Inspector, ACB, Visakhapatnam he issued letter Dt. 26.12.2003 along with statement of salary particulars of J. Ganesh,
Forest Officer for the month of August and October, 1996. Ex.P72 is his letter.
Ex.P73 is the statement. Ex.P72 and 73 bears his signature. During cross examination he deposed that he did not verify as to whether the salary particulars of the months of April, 1996 to July, 1996 and September, 1996 were missing in the particulars furnished by him.
183.The learned counsel for the AO contended that the prosecution examined P.Ws.16, P.W.30 and P.W.40 and got marked Ex.P.44, 45, 72, P.73, P.75 to 77.
184.Now coming to the evidence of D.W.14 who is examined by the defence in support of the so called missing entries pertaining to April, 1996 to July, 1996 and September, 1996 he deposed that in pursuance of the summons issued by this court to Divisional Forest Officer, Vizianagaram today (on the date of his examination) he produced salary particulars of AO for the period April, 1996 to
July, 1996 and September, 1996 with authorisation from Divisional Forest Officer.
Ex.D22 is the authorisation given to him by Divisional Forest Officer. Ex.D23 is the the said salary particulars. Basing on office copies of treasury bills available in their office and on instructions from DFO he instructed Senior Assistant
K.Suryanarayana to prepare above salary particulars statement.
185.As verified from the documents produced by the prosecution with 84 reference to Ex.P.44, 45, 72, 73 to 77 there is no mention about the salary particulars pertaining to April, 1996 to July, 1996 and September, 1996. It is the duty of the prosecution in fact to furnish all the salary particulars pertaining to the check period. So as those are missing the accused choosen to examine D.W.14 and got marked EX.D.23. According to the contention of the AO the particulars of the salary for the missing period is Rs.16,001/-. This Court has no reason to disbelieve the contention of AO about the missing salary particulars of AO in the light of the evidence let in by the accused as such an amount of Rs.16,001/- is liable to be added to the figure of Rs.5,16,121/-. Hence, the income derived by AO under this item would comes to Rs.5,32,122/-. Hence, the income under this head decided as
Rs.5,32,122/-.
186. Item Nos.2, 3, 4 and 5: Item No.2 is the income received from LIC policy to a tune of Rs.20,000/-. P.W.40 deposed about the same and spoken about this income and marked Ex.P.116 letter. Item No.3 of income is the income obtained under housing loan from State Bank of India, Agricultural Development
Bank, Narsipatnam, Visakhapatnam to a tune of Rs.1,90,000/-. P.W.40 deposed about this income and marked Ex.P.74. Item No.4 This is the income obtained through housing loan in Bank of India Anakapalli in the name of wife of AO to a tune of Rs.7,20,000/- and P.W.40 has spoken about the same and marked Ex.P.85.
Item No.5 is the income obtained through loan to a tune of RS.4,00,000/- from the Bank of India, Anakapalli in the name of wife of AO and P.W.40 deposed about this income and through his evidence Ex.P.85 and P.129 are marked. As evident from the arguments of the learned counsel for AO there is no dispute about the income under item Nos.2, 3, 4 and 5 as such item Nos.2, 3, 4 and 5 are considered as income of AO at the value of Rs.20,000/-, 1,90,000/-, 7,20,000/- and
Rs.4,00,000/- respectively.
187. Item NO.6: This is the income said to be obtained through a
loan in Bank of India in the name of father of AO to a tune of
Rs.10,00,000/-.
Turing to the evidence of P.W.40 he deposed that the father of AO
Jagarapu Apparao had taken housing loan of Rs.10 lakhs from Bank of India, 85
Anakapalli on 28.3.2002 for the purpose of a house vide loan account No.20/11A.
Ex-P129( already marked) is letter dated 12-04-02 relating to the above transaction. Ex-P85 ( already marked) is the said ledger extract. Hencethe loan amount Rs 10,00,000/- is added to the income of A.O
188.The counsel for the AO contended that D.W.19 the father of AO spoken about this income and Ex.P.85 and P.129 are the relevant documents and there is no dispute about it.
189.Here, I would like to make it clear that the investigating officer during the course of investigation tagged the asset Nos.8, 9 and 11 to the father of AO and in that view of the matter considered the income of father of AO to the AO.
This Court appreciated the contention in detail as above while dealing with assets
Nos.8, 9 and 11 and came to a conclusion that the prosecution has failed to prove that AO purchased Item No.8, 9 and 11 with his source of income as benami in the name of his father. The father of AO is not a member in relation to the family of AO as he is not dependent upon the AO. Considering the circumstances and by virtue of the evidence with reference to above now this Court can not allow the income obtained by the father of AO to a tune of Rs.10 lakhs as income of AO and it is liable to be deleted. Hence, item No.6 of the income is deleted as it can not be considered as income of the AO in the light of the reasons furnished supra.
190. Item Nos.7 and 8 Item No.7 is the income through a loan obtained from the State of India, Anakapalli in the name of wife of AO to a tune of
Rs.3,10,000/-. Item No.8 is the income through a loan obtained from the State
Bank of Hyderabad in the name of wife of AO to a tune of Rs.2,00,000/-:
P.W.40 spoken about this income and further during the course of his evidence he spoken about Ex.P.69 already marked. There is no dispute about the income in the name of wife of AO under these heads either during the course of cross examination of P.W.40 or during the course of arguments. Hence, the income under item Nos.7 and 8 are considered as Rs.3,10,000/- and Rs.2,00,000/- respectively and they are tagged to the AO.
191.In the light of the above reasons, the income that is decided by this
Court which can be tagged to the AO as per Annexure III in the abstract of income 86 is as follows in the tabular form.
ABSTRACT OF INCOME
1.Pay and allowances of A.O, during his service5,32,122.00
2.Income Received from LIC20,000.00
3.Income obtained towards housing loan form State 1,90,000.00 Bank of India , Agricultural Development Bank, Narsipatnam ,Visakhapatnam Dist.
4.Income obtained through housing loan in bank of 7,20,000.00 India, Anakapalli
5.Income obtained through Loan in Bank of India, 4,00,000.00 Anakapalle
6.Income obtained through Housing loan in Bank of DELETED India, Anakapalle
7.Income obtained through demand loan in bank of 3,10,000.00 India, Anakapalle
8.Income obtained through demand loan in bank of 2,00,000.00 India , Anakapalle Total Income Rs. 23,72,122.00
192.Now I would like to appreciate the evidence relating to the expenditure as shown by the prosecution in Annexure II in the abstract of Expenditure.
E X P E N D I T U R E
193. Item No.1: The prosecution has shown the expenditure for the
maintenance of family of AO from 8.11.1993 to 9.4.2002 to a tune of
Rs.3,95,023.09ps.
P.W.40 deposed that that he submitted the family particulars of AO to the Deputy Director, New Delhi to calculate Household expenditure of AO. As per the guidelines given by Central Statistical Organization, New Delhi, he computed the house hold expenditure of AO, taking in to consideration the size of family and the standard of living which comes to Rs. 3,95,023.09ps. Ex-P114 is the calculations report prepared by him( 2 pages). Therefore, the amount of
Rs.3,95,023.09/- is taken as expenditure of A.O. During the course of cross examination he denied that his calculation regarding the house hold expenditure is not correct and that Ex.P.114 has no basis.
194.Turning to the evidence of D.W.20 the AO he deposed that the house hold expenditure shown by ACB is excessive and he incurred only 30% of the his 87 net salary towards his kitchen expenditure. During cross examination he deposed that he calculated 30% of kitchen expenditure approximately. He denied that he would have incurred house hold expenditure of more than 50% if it is calculated exactly and mathematically. His daughters were under 15 years at the time of ACB search.
195.The learned Special Public Prosecutor basing on the evidence of P.W.40 and Ex.P.114 argued that the domestic expenditure shown by the prosecution is quite reasonable and it may be accepted.
196.The learned counsel for the accused contended that according to
P.W.40 he prepared Ex.P.114 calculation report as per the guidelines given by the
Central Statistical Organisation, New Delhi. It is suggested to him that Ex.P.114 has no basis for which he denied. No importance can be given to Ex.P.114 and there is no enclosure to Ex.P.114 to prove that it was prepared as per the guidelines given by Central Statistical Organization. AO had three children and wife. By the date of end of check period all the children were minors and school going. P.W.40 had taken almost 70% or more out of net pay and allowances as expenditure for maintenance. He shown the other expenditure separately. AO used to get pulses, vegetables, rice etc., from his father who is an agriculturist. Hence, the expenditure may not be exceed 30% out of the net pay and allowances as such it may be considered as Rs.1,18,506/-.
197.At the out set, I would like to make it clear that as evident from
Ex.P.114 the calculation sheet said to be prepared by P.W.40 it is not enclosed with the so called Central Statistical Organization guidelines. It is no doubt true that
P.W.40 taken into consideration the members in the family and arrived at units and specific rate of units and calculated the expenditure during check period. However, in a case of this nature, generally it is reasonable to consider the domestic expenditure ranging from 35% to 50%. Here is a case that AO has two residential houses . Even the ACB conducted raids at his house at Anakapalli and another house at Narsipatnam. As evident from the Ex.P.46 an Ex.P.28 inventory reports considerable domestic articles could be found place in the houses of AO. Having regard to the fact that the AO was providing education to his children in separate 88 school but taking into consideration that he had to meet the necessary and domestic house hold expenditure because he is having two residences, it is quite reasonable to consider the 50% of the net pay as that of the domestic expenditure of AO and it is reasonable figure to be arrived at. Having regard to the above, I am of the considered view that 50% of the net pay can be considered as domestic expenditure in the circumstances. As this Court already pointed out this Court revised the income of the AO in item No.1 as that of RS.5,32,122/- and 50% of it comes to Rs.2,66,061/-. Hence, the expenditure under this head is treated as
Rs.2,66,061/- and it is tagged to the AO.
198. Item No.2: This is the expenditure shown by the prosecution
towards education expenditure of children of AO to a tune of
Rs.1,14,600/-:
According to the evidence of P.W.40 during investigation he obtained
Ex-P87 to P92 (already marked) the relevant documents showing the payment of fee to the children of AO for their education. Ex-P115 is the letter, dt.07-05-2002 issued by Accountant, Don Girls School. All the amounts spent by the A.O towards education of his children as detailed above is worked out to Rs 1,14,600.00. Hence the amount Rs 1,14,600/- is taken as expenditure of A.O. During cross examination P.W.40 denied a suggestion that the expenditure towards education of the children of AO was paid by the father of AO and that there was a document seized to that effect.
199.Turning to the evidence of P.W.38 she deposed that she has been working as Director and Correspondent, Dan Bosco school, Narsipatnam since 6 months and she was a member of the board for last 30 years. Mr. R.A. Fenwick is his brother in law. He had been to Australia around 6 months back. He worked as
Director and Correspondent of the school during the year 2002. He can identify the signature of Fenwick. Ex.P87 is the fee particulars of J.Barghavi for the period 2001-2002. An amount of Rs. 2,540/- was paid towards tuition fee, text books and computer fee etc,. Ex.P88 is the fee particulars of J.Sindhuja for the period 2001-2002. An amount of Rs.3,350/- was paid towards tuition fee etc., Ex.P89 is the fee particulars of J.Johnavi for the period 2001-2002. An amount of 89
Rs.4,070/- was paid towards tuition fee etc., Ex.P87 to 89 were forwarded to the
Inspector, ACB, Visakhapatnam along with letter Dt.30.04.2002 of R.A. Fenwick.
Ex.P90 is the fee particulars of J.Bhargavi for the year 2002. An amount of
Rs.2,540/- was paid towards tuition fee etc. Ex.P91 is the fee particulars of
J.Sindhuja from UKG to 4th standard. An amount of Rs.13,145/- was paid towards tuition fee etc. Ex.P92 is the fee particulars of J.Jahnavi for 2nd class to 6th class.
An amount of Rs. 15,415/- was paid towards tuition fee etc. Ex.P90 to 92 were forwarded by Sri. R.A. Fenwick to Inspector,ACB, Visakhapatnam along with letter
Dt. 01.05.2002. The letters and Ex.P87 to 92 bear the signatures of R.A.Fenwick.
During cross examination he deposed that he was not physically present at the time of preparation of above fee receipts. It is true that he was not examined by
ACB in respect of fee receipts. The admissions applications of students will be in the custody of school. One of the column in the applications will be the name of nominee of students. Unless he verified the applications he cannot say the name of nominee. The payment receipts i.e., original will in the custody of school. He do not know whether they were collected by ACB. He denied that the fee particulars mentioned in Ex.P87 to P92 are not correct and that they are baseless and that he is not competent to give evidence in respect of Ex.P87 to P92.
200.At the out set, I would like to make it clear that when P.W.38 was a member of the Board for the last 30 years and Director of Don Bosco School and
R.A. Fenwick who is the signatory under Ex.P.87 to P.92 is said to be his brother-in- law absolutely P.W.39 is competent to identify the signature. Further according to the evidence of P.W.40 P.115 is also a document showing the fee particulars. At the out set, I would like to make it clear that if the amounts mentioned in Ex.P.87 to
P.92 and Ex.P.115 are considered they are amounting to RS.1,24,560/-. Here the prosecution has shown Rs.1,14,600/-. P.w.40 considered certain amounts seems to have been paid subsequent to the check period, because in certain receipts the tuition fee was paid for 12 months. So P.W.40 duly taken into consideration the amounts that are paid subsequent to the check period.
201.The learned Special Public Prosecutor contended that the evidence of
P.W.40 and Ex.P.87 to P.92 and Ex.P.115 proves the expenditure under this head.
90
202.The learned counsel for AO argued that P.W.38 is not the right person to speak about Ex.P.87 to P.92. He further argued that the figures mentioned in the said documents can not be considered. It is defence of AO that D.W.19 the father of
AO had incurred the educational expenditure of Kum.Sindhuja and Ex.P.29 file contains an agreement written by D.W.19 agreeing to bear the educational expenditure of Kum. Sindhuja and it was seized by P.W.40. Whoever may be the person who pays the fee to a student, the receipt will have to be issued in the name of the student only. P.W.19 signed as guardian in the admission application of Kum. J. Sindhuja which was not collected by P.W.40. D.W.19 was not questioned by the learned Public Prosecutor in respect of the said agreement and incurring expenditure under this head. D.W.19 incurred the expenditure to a tune of
Rs.87,760 and it may be deducted.
203.As this Court already pointed out P.W.38 is the competent enough to speak the receipts under Ex.P.87 to P.92 and P.W.40 is the person who collected
Ex.P.115. It is not the case of the AO that his children did not study in Don Bosco
School, Narsipatnam. Even otherwise ultimately the learned defence counsel is contending as if most of the expenditure was incurred by the father of AO as such an amount of Rs.26,840/- may be considered as expenditure under this head. This
Court has verified Ex.P.29 made up file. Firstly, I would like to make it clear that according to the D.W.19 he provided education to his grand daughter i.e., Kum. J.
Sindhuja. Ex.P.29 contains his undertaking of incurring educational expenditure to
Kum. J. Sindhuja. As seen from Ex.P.29 made up file there is an agreement dt.21.3.2002 at page No.13. It reads that on 21.3.2002 Jagarapu Apparao (father of AO) executed the said document in favour of Jagarapu Ganesh (AO) stating that he has affection in him and also Jagarapu Sindhuja as such he decided to incur total expenditure of Jagarapu Sindhuja till his life time and made believe the accused and given such a document. This Court feels that there is any amount of unnaturality and improbability in executing such a document. Here is a case that at one hand AO is contending that his father has taken care of him by providing huge amounts to him and to his children. It is not understandable as to how a grand father would enter into execution of such a document if he is really willing to take 91 care of grand daughter. It is not that there was any mutual mistrust between father of AO and AO as such it came to be executed. It is nothing but a deliberate act in getting executed such a document and keeping the same in his house. As the educational expenditure of the daughter of AO was like to be a higher scale the
AO appears to have get such a document from his father and kept the same in his house for the reasons best known to him. A man of reasonable prudence in normal circumstances would never ask his father or would never allow his father to execute such a document in favour of his children. This Court can only see any amount of unnatural, improbable and a deliberate intention to get such a document executed and kept the same in his house. No bona fides can be seen on this aspect. Hence,
I am disbelieving the contents of this document as it is nothing but unnatural and improbable and suspicious. Hence, I disbelieved a theory that the father of AO provided education to the daughter of AO. There is no need to get such a document executed when father of AO has so called affection towards his grand daughter. Hence, I am inclined to treat the expenditure of of AO under this head as
Rs.1,14,600/- and it is tagged to the AO.
204. Item No.3: Expenditure incurred towards Registration fee and
Stamps for purchasing immovable assets to a tune of Rs.5,79,842/-.
Coming to the evidence of P.W.40 he deposed that the A.O incurred the expenditure towards the stamp and registration expenses to a tune of
Rs.5,79,842/- for acquisition of assets under Ex.P1, Ex.P9, Ex.P10, Ex.P100,
Ex.P101, Ex.P102 and Ex.P104. Hence the total Expenditure Rs.5,79,842.00/- is added to the expenditure of A.O. During cross examination he denied that the expenditure under this head was incurred by his wife and father and wife of AO and that he unnecessarily tagged this expenditure to AO. He denied that AO incurred the expenditure under this head only in respect of assets stands in his name and that the material collected by him shows the same.
205.The learned Special Public Prosecutor sought to contend that the prosecution is able to prove this expenditure in the light of the evidence adduced and it can be considered as expenditure of AO.
206.At the outset, I would like to make it clear that Ex.P.100 the copy of 92 sale deed is relating to the asset No.1 in the name of wife of AO, Ex.P.1 is relating to asset No.3 in the name of AO. Asset No.2 is development on asset No.1 and there is no registered document produced by prosecution in respect of asset No.2.
Similarly asset No.4 is a flat constructed by the builder on total site and as this
Court already pointed out the prosecution did not produce the original or copy of registered development agreement. The value of the apartments is not in dispute.
The prosecution failed to prove the developments in the flat. Further Ex.P.102 is relating to asset NO.7. Ex.P.104 is relating to the sale deed in the name of father- in-law of AO and Ex.P.105 is gift deed in the name of wife of AO executed by her father. Ex.P.104 and P.105 are relating to asset No.10. These are the immovable property assets tagged to the AO in the earlier discussion. This Court did not tag the asset Nos.8, 9 and 11 to AO. Hence, the stamp duty and registration charges relating to asset Nos. 1, 3, 7 and 10 have to be considered now. As seen from
Ex.P.100 there is a whisper that the stamp duty and registration expenses are incurred by the vendor of the sale deed to the wife of AO. In Ex.P.100 there is no mention that the wife of AO incurred the said expenditure that amounts to
Rs.1,10,700/-. In other words the registration charges and stamp duty charges in respect of asset No.1 are incurred by the vendor as per the contents of the said document as such it can not be tagged to the AO. Now there remains the stamp duty of Rs.1430/- and registration expenses of Rs.181/- in respect of asset No.3.
There is stamp duty of Rs.56,370 + Registration charges of Rs.2,286/- total
Rs.59,236/- in respect of asset NO.7. The stamp duty and registration charges in respect of Ex.P.104 pertaining to asset No.10 is Rs.17,000/-+ Rs.1051/- i.e.,
Rs.18,051/-. The stamp duty and registration under Ex.P.105 in respect of asset
No.10 is Rs.4,520/- + Rs. 1051/- Totaling to Rs.5571/-. As this Court already pointed out it is deliberate act on the part of AO firstly in getting registered the sale deed executed in the name of father-in-law in respect of asset No.10 and later within four months getting transferred in the name of his wife by way of a gift deed and this property is tagged to AO as such the stamp duty under Ex.P.104 and P.105 have to be tagged to the AO. The stamp duty and registration charges in respect of asset No.3, 7 and 10 comes to Rs.84,470/-. In the light of findings relating to 93 these assets while tagging the asset to AO the contention advanced on behalf of the learned counsel for AO in his written arguments to attribute only the stamp duty in respect of asset No.3, can not be countenanced. Hence, I am inclined to treat this expenditure as Rs.84,470/- in stead of Rs.5,79,842/-.
207 Item No.4: It is the expenditure pertaining to payment of LIC premiums to a tune of Rs.93821/- :
P.W.40 spoken in detail relating to four LIC policies relating to this expenditure. According to him the expenditure pertaining to these items is on four
LIC policies i.e., (1) Rs.25,292/-(2) Rs. 23,534/- (3) Rs.37,615/- and (4)
Rs.7380/- and total is Rs.93821/-. He spoken about Ex.P.116 letter, Ex.P.117 letter and Ex.P.118 letter.
208.There is no dispute about this expenditure either during cross examination of P.W.40 or in the arguments of the learned counsel for AO. Hence, the expenditure under this head is treated as Rs.93,821/-.
209. Item NO.5: This is the expenditure pertaining to payment of telephone bills by AO to a tune of Rs.81,077/-:
According to P.W.40 during house search of the house of AO situated at D.NO.4-3-33, (Bhargavi Plaza), Woodpeta, Anakapalle telephone bearing No.25550 was found in the house of A.O. LW- 75 the Divisional Engineer,
Vigilance, BSNL, O/o General Manager, Telecom District, Visakhapatnam vide his letter No.GMTD/VM/VIG/ SURVEILLANCE/99-2004/104 dated 15-4-04 informed that the telephone was installed on 31-12-1998 in the name of Lalam Prabhakara rao at II floor, Bhargavi Plaza, Anakapalle. He furnished the payment details of calls made from 4th Jan, 2000 to 22 Feb, 2002 and according to which an amount of Rs 8626/- was incurred towards calls made. Ex-P119 is the letter of the Divisional
Engineer BSNL. Hence the total amount of Rs 8626/- is added to the expenditure of A.O. He further deposed that during the house search of the house of AO situated at K.D.peta road, Narsipatnam, telephone bearing No.35683 was found in the house of A.O. LW-75 the Divisional Engineer, Vigilance, BSNL, O/o General
Manager, Telecom District, Visakhapatnam vide his letter No. GMTD /VM/ VIG/
SURVEILLANCE/2002/45 dated 6-5-2002 informed that the telephone was installed 94 on 22-3-99 in the name of Jagarapu Ganesh s/o Apparao, H/o Narsimhamurty, KD
Peta Road, Narsipatnam. He furnished the payment details of calls made from 27- 12-99 to 18-3-2002 and according to which an amount of Rs 72,451/- was paid towards calls made. Ex-P111 is the letter of the LW-75 Divisional Engineer, BSNL ( already marked). Hence the total amount of Rs 72451/- towards the telephone calls is added to the expenditure of A.O. During cross examination of P.W.40 the expenditure under this head is not in dispute. However, the learned counsel for the
AO contended that contents of Ex.P.111 and Ex.P.119 are not proved and mere marking of letters does not prove the contents.
210.Here I would like to make it clear that no objections are made for marking of Ex.P.11 and P.119. However, the learned counsel for AO sought to treat this expenditure as Rs.72,451/- instead of Rs.81,077/-. I am not convinced to accept such a contention as it is for the AO to explain as to how the telephone in the name Lalam Prabhakar the brother-in-law of AO was installed in AO's house.
Under the circumstances, virtually there is no force in the contention of AO that the expenditure under this head can not be tagged to him. Hence, the expenditure of
Rs.81,077/- under this head is tagged to the AO.
211. Item NO.6: Expenditure of AO for availing credit in Andhra Bank to a tune of Rs.1700.50/-:
It is the expenditure incurred by AO for availing credit in Andhra Bank to a tune of Rs.1700.50 ps and according to Ex.P.120 it is the statement of account issued by Law officer, Andhra Bank, Credit Card Division, Hyderabad and there is no dispute about this expenditure either in the cross examination of P.W.40 or during the course of arguments. There is no dispute about this expenditure. Hence, it is tagged to the AO.
212 Item No.7. It is the expenditure incurred towards payment of consumption of power charges for Service Connection bearing No.22278 to the house of Smt. Lalitha Kumari w/o of AO. Further according to P.W.24 he issued
Ex.P.64 and Ex.P.65.
213.The contention of the learned counsel for AO is that it is incurred by wife of AO D.W.18 but not AO. I feels that the wife of AO is a member in relation to 95 the family of AO as such it is being tagged to the AO. Hence, the expenditure under this head i.e., Rs.1332/- is tagged to AO.
214. Item NO.8: This is the expenditure towards payment of consumption of power charges to the Service Connection No.6440 to the house of AO at K. D.
Peta road, Narsipatnam to a tune of Rs.8,310/-. P.W.40 deposed about this expenditure and Ex.P.121 and there is no dispute about this expenditure. Hence, it is tagged to the AO at the cost of Rs.8,310/-.
215. Item No.9 Expenditure incurred by J. Lalithakumari, w/o AO towards house tax:
P.W.40 he deposed that during the course of investigation, LW-96 (PW27) Municipal Engineer & commissioner(FAC), Anakapalle Municipality,
Anakapapalle, through his letter No. 9815/2002/G1, dt.3-8-2002 informed that Smt
Lalithakurmari W/o Ganesh remitted an amount of Rs 8026/- towards house tax.
Ex-P 67 is the letter of the Deputy commissioner ( already marked). Further during course of search of the locker bearing No.30 of State Bank of Hyderabad a file containing 1) original receipt No. 099120 dated 13-12-00 for Rs 4013/- in respect of house tax paid vide assessment No. 3556/4 in the name of Addala Parvathamma w/o Adinarayana 2) original receipt No. 0799119 dated 13-12-00 for Rs 4013/- in respect of house tax paid vide assessment No. 3556/4 in the name of Addala
Parvathamma w/o Adinarayana and 3) original receipt No. 2419 dated 13-12-00 for Rs 4013/- in respect of house tax paid vide assessment No. 3556/4 in the name of Addala Parvathamma w/o Adinarayana were found and the same were seized in the presence mediators. Further during the house search of the house of Smt
Lalitha Kumari i.e Bhargavi Plaza on 9-4-02, original receipt No. 15621 dated 12- 12-01 for Rs 4461/- in respect of house tax paid vide assessment No. 3556/4 in the name of Lalam Lalithakumari D/o China Kondaiah, was found and same was seized in the presence of mediators. Page number 2 to 5 of Ex.P99 are the said original receipts. Therefore, the amount of Rs 16,500/- paid towards the house tax is added to the expenditure of A.O.
216.During cross examination of P.W.40 it is not disputed. However, the main contention of the learned counsel for AO is that as per Ex.P.67 house tax was 96 paid at Rs.8026/- till 30-12-2000 and P.W.40 deposed that the original receipts showing house tax paid are available at pages 2 to 5 of Ex.P.99 and it was shown in his IT returns of Ex.P.56. As evident from the above said argument this Court feels that there is no dispute about it. Hence, the expenditure under this head is treated as Rs.16,500/-.
217. Item NO.10: Expenditure towards payment regularization of 2 nd fllor of Bhargavi Plaza, Anakapalli to a tune of Rs.3,350/-:
This is the expenditure incurred towards regularization of 2nd floor of
Bhargavi Plaza and according to the evidence of P.W.27 Ex.P.67 is the copy of letter showing remittance of Rs.3,350/- towards licensing fee to the municipality and it was incurred by wife of AO. As the wife of AO is member in relation to the family of AO, I am inclined to tag this expenditure to AO as that of Rs.3,350/-.
218. Item No.11: This is the expenditure incurred towards processing fee for sanctioning housing loan to a tune of Rs.6,105/-:
According to the evidence of P.W.40 the AO had taken housing loan of
Rs 10 lakhs in the name of his father Sri J. Apparao and Rs.7.2 lakh in the name of his wife J. Lalitha Kumari from Bank of India, Anakapalle. The bank collected
Rs.6105/- (on 22-4-02 Rs 3500/- for Rs 10 lakh vide a/c No. 8515 and on 18-11- 00 Rs 2605/- for Rs 7.2 lakh vide a/c No. 8517). Ex-P122 is the statement of account for Rs.3,500/- furnished by the bank in this regard. Ex.P123 is the another statement of account for Rs. 2,605/- issued by the bank. Hence the amount of Rs 6105/- collected towards processing fee is added to the expenditure of A.O.
219.Here I would like to make it clear that the loan of Rs.10 lakhs borrowed by father of AO can not be attributed to AO. This Court delted item Nos.8, 9 and 11 and item No.6 of the income. Hence, an amount of Rs.3,500/- can not be tagged to the AO. Hence, I am inclined to consider the only the expenditure of
Rs.2,605/- for getting loan of Rs.7.2 lakhs in the name of wife of AO. Hence, the expenditure under this head is treated as Rs.2,605/-.
220. Item Nos.12, 13, 14 and 15:- The prosecution has shown item NO.12 as unexplained expenditure made from SB A/c NO.SB/SRS/41, Viskaha Grameena 97
Bank, Narsipatnam to a tune of Rs.10,41,236.90; Item No.13 is shown as unexplained expenditure made from SB A/c No.006001005256 of ICICI
Dwarakanagar, Visakhapatnam to atune of Rs.4,54,000/-; Item No.14 is shown as unexplained expenditure made from SB A/c No.SB/SRS/132, of Visakha Grameena
Bank, Narsipatnam to a tune of Rs.44,37,058/- and Item No.15 is shown as unexplained expenditure made from SB A/c No.6083 of State Bank of Hyderabad,
Anakapalli to a tune of Rs.8,79,700/-.
221.Now coming to the evidence of P.W.40 the Investigating Officer, he deposed that the AO had opened S.B A/c NO.SB/SRS/41 in Visakha Grameen Bank,
Narsipatnam on 1-9-97. During investigation LW-64 the Branch Manager, Sri
Visakha Grameen Bank, Narsipatnam furnished the ledger extract of the account in the name of Sri J. Ganesh (AO). Ex-P20 is the letter of Bank and Ex.P21 is the ledger extract of the above account. ( already marked). As per Ex.P21 he considered the expenditure(with drawls) as Rs.10,41,236.90/- as unexplained expenditure( Credit entries). Hence the unexplained expenditure of Rs 10,41,236.90 is added to the expenditure of A.O
222.He (P.W.40) further deposed that the AO had opened S.B A/c NO.
006001005256 in ICICI, Dwarakanagar, Visakhapatnam in his name by depositing
Rs.3,45,000/- on 3-8-2000. LW- 68 (PW14) the Manager ICICI Bank furnished the ledger extract of the above account through his letter dated 1-9-2004. Ex-P28 is the ledger extract ( already marked) furnished by LW- 68. Hence the amount of Rs 4,54,000/- has been added to the expenditure of A.O.
223.P.W.40 further deposed that the AO had opened S.B A/c NO.
SB/SRS/132 in the name of his father Sri Jagarapu Apparao in Visakha Grameen
Bank, Narsipatnam on 27-11-98. During investigation the LW-63 (PW11) Branch
Manager, Sri Visakha Grameen Bank, Narsipatnam furnished the ledger extract of the account. Ex-P22 (already marked) is the ledger extract of S.B A/c NO.
SB/SRS/132 furnished by LW-63. It shows unexplained expenditure of Rs.
44,37,058/- by way of with drawls.Hence the unexplained expenditure of
Rs.4437058/- is added to the expenditure of A.O.
224.P.W.40 also deposed that the AO had opened S.B A/c NO. SB/6083 in 98 the name of his wife Smt. J. Lalitha Kumari in State Bank of India, Anakapalle 25- 1-01 . During investigation LW- 65(PW29) the Branch Manager, State Bank of
Hyderabad, Anakapalle furnished the ledger extract of the account in the name of
Smt. Lalitha Kumari . Ex-P70 and P71 are the ledger extract of S.B A/c NO.
SB/6083 furnished by LW-65 showing the unexplained expenditure to a tune of Rs.
8,79,700/-. Hence the unexplained expenditure of Rs 8,79,700/- is added to the expenditure of A.O. During cross examination he denied a suggestion that there is no unexplained expenditure under these heads and the record explains the same and that due to lack of knowledge in the accountancy and to boost up the disproportionate assets he shown this expenditure. He further denied a suggestion that AO, his wife and his father did not explain the expenditure under this heads. It is true that the father of AO given his reply Dt. 16.03.2004 to him.
225.The learned Special Public Prosecutor sought to support this expenditure by relying on Ex.P.20, 21, 22, 28, 70 and 71.
226.The counsel for the accused contended that regarding this expenditure there remains evidence of P.W.40 alone. Except showing the figures he failed to collect proper material. He must investigate into the said entries. Without conducting any investigation he just added by taking into consideration the withdrawals (debit entries) of the above accounts belonging to AO, D.W.19 and
D.W.18. For Item No.12 he gave his evidence that as per Ex.P.21 ledger extract he considered the expenditure (withdrawals) as Rs.10,41,236.90 ps as unexplained expenditure (credit entries) P.W.40 is not sure as to whether he considered debit entries or credit entries. He says that he considered the expenditure (withdrawals) that means it should be debit entries. If that be so what about credit entries. If any account for a period of 5 years is taken and if we add debit or credit entries it goes to lakhs of rupees, even if the deposit amounts are Rs.1,000/- or Rs.2,000/-.
The method he adopted is not proper. For item No.13 he relied upon Ex.P.28 and for item NO.14 he relied upon Ex.P.22 and for item No.15 he relied on Ex.P.70 and
71. He did not say as to how he has arrived those figures in relation to item Nos.12 to 15. Therefore it is clear that P.W.40 only to boost up the assets adopted this method which is not permissible. They can not be said as unexplained expenditure.
99
Hence, this can not be tagged to AO.
227.As seen from Ex.P.20 it is a letter from the concerned bank while enclosing Ex.P.21 ledger extract to the investigating agency. As seen from Ex.P.21 there were certain credit entries. Further there were debit entries. It is to be noticed that when the account under Ex.P.21 contains several entries right from the year 1997 showing certain deposits and further certain withdrawals the
Investigating Officer ought to have gone into the sources of deposits and ascertain as to who made said deposits as to whether the AO personally or some body.
Without taking into consideration the deposits in the account, the Investigating
Officer can not come to a conclusion that the withdrawal amounts to expenditure.
There is no guarantee that if a particular amount is withdrawn from the bank, it would be expended automatically. Further as the very nature of the bank transaction is depositing the amounts in the bank and withdrawing the same, and one can not rule out any situation that the amounts that are withdrawn will again be deposited for the convenience of the customer. Similar is the case pertaining to the entries in Ex.P.28, P.22, P.70 and P.71. Here item NO.12 of account is relating to AO. Item NO.13 is relating to AO. Item NO.14 is relating to Jagarapu Apparao, father of AO. Item NO.15 is relating to the wife of AO. The above referred documents shows that the Investigating Officer taken into consideration the withdrawals and came to a conclusion that those are unexplained expenditure. He did not investigate into sources of deposits. How the amounts came to be deposited must have been available in the bank. Who made the deposits as to whether AO or some body else would be born out by record. The Investigating
Officer ought to have gone into the root of the deposits and then ought to have came to a conclusion that the withdrawals are unexplained or otherwise. If a person withdrawn the some amount and again deposit the said amount for the convenience admittedly if this process is adopted for five or six years the deposits and withdrawals would come to lakhs of rupees or crores of rupees depending upon the quantum of deposits or withdrawals. There is no guarantee that the withdrawal amounts to expenditure. Under the circumstances there is no reasonable basis to the Investigating Officer to say that the withdrawals are the unexplained 100 expenditure. Under the circumstances the expenditure under item Nos.12, 13, 14 and 15 can not be tagged to the AO. As this Court already pointed out the
Investigating Officer failed to tag asset Nos.8, 9 and 11 to the AO and the bank accounts of father of AO to AO as such the expenditure under item No.14 also can not be tagged to the AO. The prosecution did not adduce any consistent evidence except by getting marked the bank extracts which are spoken by P.W.40. There remains nothing to show that all the withdrawals are amounting to expenditure.
Hence, I am not inclined to treat the withdrawals under these items as expenditure as such they are deleted.
228. Item No. 16: This is the expenditure incurred towards monthly installments to the chits four in number. They are (1) Chit Group No.GLSDV-28 in the name of AO; (2) Chit Group No.GLSDV-40 in the name of AO; (3) Chit Group
No.GS3PV-24 in the name of AO and Chit Group No.VNLF-2 in the name of AO's wife. The amounts under the above four chits are shown as Rs.74,679.20ps, 74,834.40 ps, Rs.2,15,538/- and Rs.50,040/- respectively.
P.W.40 spoken about the expenditure under these heads and through him Ex.P.124 the letter issued by Manager, GPR Chits and Finance, dt.12.4.2004 and Ex.P.125 the copy of ledger extract, Ex.P.126 ledger extract and Ex.P.127 another ledger extract are marked. There is no dispute about this expenditure in cross examination of P.W.40. Even in the arguments the learned counsel for AO did not dispute about the expenditure under sub item Nos.1 to 3 of Item No. 16.
Relating to sub-item NO.4 of Item NO.16 the contention of the learned counsel for
AO is that the amount is incurred by wife of AO and not AO. As the wife AO is no other than a member in relation to the family of AO, I am inclined to treat the expenditure under sub Item No.4 of Item No.16 as expenditure of AO and as such sub Item Nos.1 to 4 of item No.16 are considered at the values furnished by the prosecution. Hence they are tagged to the AO.
229. Item NO.17: This is the expenditure incurred towards payment
of housing loan in Bank of India, Anakapalli to a tune of Rs.2,50,125/-:
Coming to the evidence of P.W.40 he deposed that the A.O in the name of his wife Smt J. Lalitha Kumari had taken housing loan Rs.7,20,000/-in Bank of 101
India, Anakapalle on 17-11-2000 vide Loan Account No. 20/148. LW-64 the
Manager, Bank of India, Anakapalle confirmed the above transaction through his
Letter No. AKP/ADMN/18 dated 12-04-02. Ex-P85 the ledger extract ( already marked) reflects the said transaction. The ledger extract showed that an amount of
Rs 2,50,125/- was repaid till the end of check period. Hence the loan amount Rs 2,50,125/- is added to the expenditure of A.O
230.There is no dispute about this expenditure during cross examination of
P.W.40. The contention of the learned counsel for AO is that it was incurred by wife of AO but not AO. Here, I would like to make it clear that the wife of AO is a member in relation to the family of AO. Hence, I am inclined to treat this expenditure as that of AO and it is tagged to the AO.
231. Item NO.18: This is the expenditure shown as incurred towards
fuel and maintenance of motor cycle baring No.A.P.31 8294 to a tune of
Rs.22,700/-:
P.W.40 the Investigating Officer deposed that during the house search of the house of A.O on 9-4-04 at premises bearing No.D.No.5-37-1, Near Singh
Doctor Hospital, K.D.Peta Road, Narsipatnam, the Bajaj Motor Cycle AP31 8294 was found parked in the compound wall. On the day of the search, the milometer reading was 36,329 and the same was incorporated in the Ex-P46 mediators report. LW- 99 the Deputy Transport Commissioner, Visakhapatnam sent the fuel and maintenance report of the vehicle done by one P. Purnachandra rao, Motor
Vehicles Inspector. The Motor Vehicles Inspector who calculated the expenditure on fuel and maintenance informed that the owner might have incurred Rs.22,700/- towards the cost of fuel and maintenance.Ex-P128 is the report of MVI. Hence the total expenditure incurred on fuel and maintenance is Rs. 22,700/-. and the same is added to the expenditure of A.O. During cross examination there is no dispute about this expenditure.
232.According to the counsel for AO, the AO might have incurred
Rs.10,000/- in this regard. I am not convinced to accept such a contention in the light of the report under Ex.P.128 which was based upon certain calculations.
Hence, I am inclined to treat this expenditure as Rs.22,700/- and it is tagged to 102 the AO
233. Item No.19:- Expenditure towards locker rent in ICICI Bank,
Dwarakanagar to a tune of Rs.1050/-:
This is the expenditure towards locker rent in ICICI Bank,
Dwarakanagar. P.W.40 deposed about the same and Ex.P.27 account copy. There is no dispute about this expenditure during cross examination of P.W.40 and during arguments of counsel for AO as such it is tagged to the AO at the value of
Rs.1050/-.
234. Item No.20: Under item No.20 of the expenditure it is shown as
advances given to the relatives i.e., (a) Advance given to K. Sreenivasarao
to a tune of Rs.1,50,000/-, (b) Advance given to L. Bhaskararao to a tune
of Rs.69,000/-, © Advance given to L. Prabhakar Rao to a tune of
Rs.10,000/- and (d) Advance given to Smt. Satyavathi to a tune of
Rs.10,000/-:
P.W.40 deposed that the AO in the income tax returns for the accounting year 2001-02 (Assessment Year 2002-2003) mentioned that he has advanced Rs.1,50,000/- to one K. Sreenivasara rao. Hence the amount of Rs 1,50,000/- advanced to Sri K. Sreenivasarao is added to the expenditure of A.O. He further deposed that the AO in the income tax returns for the accounting year 2001-2002 (Assessment year 2002-2003) mentioned that he has advanced
Rs.69,000/- to one L. Bhaskara Rao. Hence the amount of Rs.69,000/- advanced to
Sri L. Bhaskararao is added to the expenditure of A.O. In the same return AO has shown that he has advanced Rs 10,000/- to Sri L. Prabhakara rao, his brother-in- law.Hence the amount of Rs.10,000/- advanced to Sri K. Sreenivasarao is added to the expenditure of A.O. He further deposed that the AO in the same return mentioned that he advanced Rs 10,000/- to Smt. L. Satyavathi, his sister.Hence the amount of Rs 10,000/- advanced to his sister Smt. L. Satyaavathi is added to the expenditure of A.O. Page No.8 of Ex.P.56 contains the above said advances.
During the course of cross examination there is no dispute about these items. Even in the arguments the learned counsel for the AO did not dispute these items. This
Court has carefully considered Page No.8 of Ex.P.56. Here is a case that the ACB 103 after conducting raid on the assets of AO sent a report to the Income Tax
Department and issued show cause notices to AO, his wife and father of AO and then they seems to have filed certain returns. The aspects of said of revised returns and the binding nature of the orders passed by the income tax authorities on this Court will be appreciated at appropriate stage. But these advances are much prior to the ACB raid during check period because it is pertaining to the income tax returns relating to 2001-2002. Under the circumstances the amounts under this item are considered as expenditure of AO.
235. Item NO.21. This is the unexplained expenditure incurred by
AO to a tune of Rs.4,03,017.93:
P.W.40 deposed that during investigation the Income Tax Officer,
Anakapapalle furnished the income tax returns filed by AO on 19-2-03 for the assessment year 2002-03 ( accounting year 1-4-2001 to 31-3-2002) vide his letter
F.No. ACB/AKP-2002-03 dt.13-12-02. Page number 8 of Ex-P56 is the relevant sheet. According to the balance sheet appended to the return the AO mentioned Rs 4,03,017.93 as cash in hand. But during the house searches of the house of AO or the searches of lockers no cash was found. Hence the above amount has been considered as spent. Hence Rs 4,03.017.93 ps is added to the expenditure of A.O.
236.The learned counsel for AO contended in substance that P.W.40 gave evidence relying on Page NO.8 of Ex.P.56. According to AO he deposited certain amounts in ICICI bank to a tune of Rs.4,50,000/- and those were the amounts withdrawn from Visakha Grameena Bank with an intention to purchase an asset and as it was not materialised, he kept the amount again in ICICI bank and the gap between the debit and credit was about 8 months and the amounts shown at
S.No.21 of the expenditure is incorrect and that the amount of RS.4,00,000/- out of the amount cash in hand was given to one K. Sai on 2.4.2002. The learned Special
Public Prosecutor did not cross examine AO in respect of this expenditure. The
Investigating Officer adopted choose and pick method. Hence, it is permissible to accept the IT returns and other record collected by P.W.40.
237.As evident from Page No.8 of Ex.P.56 income tax returns it is pertaining account year 2001-2002. The accounting year was completed by the end 104 of March, 2002. The ACB raid was on 9.4.2002. It appears that the income tax for the accounting year 2001-2002 is supposed to be filed in the year 2002 after 1.4.2002 within the time. Here the case of the prosecution is that as on the date of
ACB raid, the amount shown in the income tax return as cash on hand was not found in the house of AO it is deemed that it was expended. It is very difficult to accept such a contention. According to the arguments of the learned counsel for
AO the cash on hand was given to one K.Sai on 2.4.2002 and Special Public
Prosecutor did not cross examine AO on this aspect. Admittedly D.W.20 deposed about the same in his chief examination relating to Sl.No.21. It is to be noticed that it is for the prosecution to show that the AO expended the amount of RS.4 lakhs. Simply because it was not traced from the house of AO at the time of ACB raid there is no supposition that it was expended and it remained unexplained. In a case of this nature, it is bounden duty of the prosecution to tag the expenditure with all consistent evidence to AO. Simply because cash on hand which was shown in the income tax return could not be traced at the time of ACB raid, it can not be held that either it is spent or remained unexplained. Under the circumstances, I am not inclined to treat this as unexplained expenditure. The Investigating Officer ought to have gone into the roots of the entries in the tax returns to ascertain as to what happened to this amount. The prosecution can not expect the AO to prove its case in this regard. Hence, I am not inclined to tag this expenditure to AO and as such it is deleted.
238. Now the total expenditure that is decided by this Court which can be tagged to the AO can be conveniently put in a tabular form as follows:
EXPENDITURE
1.Expenditure for the maintenance of family of AO 2,66,061.00 from 8.11.93 to 9.4.02
2.Expenditure towards education of the children of 1,14,600.00 AO.
3.Expenditure incurred towards registration fee and 84,470.00 stamps for purchasing immovable assets
4.Expenditure incurred towards payment of LIC 93,821.00 premiums
5.Expenditure incurred towards payment of telephone 81,077.00 bills 105
6.Expenditure incurred by AO for availing credit in 1,700.50 Andhra Bank 7Expenditure incurred towards payment of 1,332.00 consumption of power charges for SC 22278 belonging to the house of Smt. Lalitha Kumari w/o AO 8Expenditure incurred towards payment of 8,310.00 consumption of power charges for SC 6440 at Narsipatnam on KD Peta road under the occupation of AO 9Expenditure incurred towards payment of house tax 16,500.00 by J. Lalitha Kumari at Anakapalli 10Expenditure incurred towards regularisation of 2 3,350.00 floor of Bhargavi plaza, Anakapalli 11Expenditure incurred towards processing fee for 2,605.00 sanctioning housing loan 12Unexplained expenditure made from SB A/c DELETED No.SB/SRS/41,VisakhaGrameena Bank,Narsipatnam 13Unexplained expenditure made from SB A/c DELETED No.006001005256inICICIDwarakanagar, Visakhapatnam 14Unexplained expenditure made from SB A/c DELETED No.SB/SRS/132,VisakhaGrameenaBank, Narsipatnam. 15Unexplained expenditure made from SB A/c DELETED No.6083 State Bank of Hyderabad, Anakapallii 16Expenditure incurred towards payment of monthly installments in chits
1. Chit Group No.GL5DV-28 in the name of AO74,679.20
2. Chit Group No.GL5DV-40 in the name of AO 74,834.40
3. Chit Group No.GS3PV-24 in the name of AO2,15,538.00
4. Chit Group No.VNLF-2 in the name of Aos wife 50,040.00 17Expenditure incurred towards payment of housing 2,50,125.00 loan in Bank of India, Anakapalli 18Expenditure incurred towards fuel and maintenance 22,700.00 of AP 31 8294 19Expenditure incurred towards locker rent in ICICI 1,050.00 Bank, Dwarakanagar. 20Advances given to relatives A. Advanced to K. Sreenivasarao1,50,000.00 B. Advanced to L.Bhaskararao 69,000.00 C. Advanced to L. Prabhakar Rao10,000.00 D. Advanced to Smt. Satyavathi10,000.00
21.Unexplained expenditure incurred by AO DELETED Total Expenditure Rs. 16,01,792.00
239.Here is a case the AO is also claiming certain additional income to him, his wife and his father. Before going to ascertain all those aspects, now I would like 106 to mention here the total value of the assets, income and expenditure decided by this Court for the purpose of convenience. Here the income as decided by the Court is Rs.23,72,122.00. If the expenditure of Rs.16,01,792/- is deducted from income the probable savings are Rs.7,70,330/- (Rs.23,72,122 (-) Rs.16,01,792). If the probable savings from the total value of the assets are deducted i.e.,
Rs.51,17,371/- (-) Rs.7,70,330/- the excess assets which the accused has to account for is Rs.43,47,041/-.
240.As this Court already pointed out this Court has tagged asset Nos.1 to 4, 7 and 10 the immovable properties to AO and further tagged the amounts in S.B
Accounts of AO and his wife and further the fixed deposits in Item No.14 except except sub-item No.1 and item No.14, 15 and others. Here it is the specific contention of the AO as this Court already pointed out that his wife had sufficient sources to purchase item No.1 of the asset and for causing developments in item
No.2 and he has sufficient sources regarding asset Nos.3 to 5 and further his wife has sufficient sources regarding item No.7 and further he and his wife have sufficient sources for the other assets i.e., fixed deposits etc., 241I would like to appreciate the contention of the AO on the above said crucial aspects. Firstly, I would like to deal with as to whether the wife of AO has sufficient resources for acquiring asset No.1 and 2. It is the contention of the accused that his wife borrowed a sum of Rs.7,20,000/- from Bank of India and further the father of AO given an amount of Rs.1,50,000/- to AO's wife by way of account transfer and the wife of AO also received a sum of Rs.90,000/- by way of cheque from Rajana Apparao (D.W.5) and it total comes to Rs.9,60,000/- as such she purchased item No.1 of the asset.
242.Here I would like to make it clear that in so far as obtaining an amount of Rs.7,20,000/- from the bank is concerned, it is not in dispute. The so called amount obtained by wife to a tune of Rs.1,50,000/- from her father-in-law and from one Rajana Apparao is in dispute.
243.The learned counsel for AO sought to sought to support the case of the
AO by relying on the evidence of D.W.18 the wife of AO, D.W.19 the father of AO and by relying on Ex.P.106 statement of D.W.19 relating to his bank account and 107
Ex.P.107 statement of account relating to D.W.18 and further the so called IT returns under Ex.P.56.
244.According to the evidence of D.W.18 she deposed that she took loan of
Rs.7,20,000/- from bank of India for the above said purpose. Her father in law given to her Rs.1,50,000/- by bank transfer to meet that expenditure. She borrowed Rs.90,000/- from Rajana Apparao by way of cheque issued by him to her.
The prosecution is seriously disputing the above evidence of D.W.18. According to the evidence of D.W.19 he given Rs.1,50,000/- to her daughter in law by way of cheque while she was purchasing asset No.1. This Court has carefully verified
Ex.P.106 extract of SB Account of Jagarapu Apparao. It shows that an amount of
Rs.1,50,000/- was shown as transferred to S.B. Account bearing No.8517 of wife of
AO. According to the defence of AO the above said entry can also be found place in
Ex.P.107 the extract of S.B. Account bearing No.8517 in the name of wife of AO.
This Court has verified Ex.P.107. Virtually it is from the period from 8.2.2002. In fact it does not reveal the so called transfer of Rs.1,50,000/- further the so called encashment of cheque of Rs.90,000/- said to be given by Rajana Apparao (D.W.5).
Here I would like to make it clear that D.W.5 deposed that he given Rs.90,000/- to the wife of AO by way of cheque. Evidently Ex.P.107 does not disclose the so called encashment of Rs.1,50,000/- and Rs.90,000/- as contended. However, here it is worthwhile to point out here the date of opening of SB Account of Jagarapu
Apparao (father of AO) in this regard is on 14.11.2000. The date of purchase of the so called property under asset No.1 is of 17.11.2000. The account was opened by depositing Rs.6,50,000/- on 14.11.2000. So just three days prior to the purchase of property in the name of wife of AO there was opening of account in the name of father of AO on 14.11.2000 by depositing Rs.6,50,000/- and after that on 17.11.2010 an amount of Rs.1,50,000/- is said to be transferred to the account of
SB account 8517 of wife of AO. The very opening of account just three days prior to the purchase of property in the name of father of AO is peculiar. How the father of AO pooled up such huge amount of Rs.6,50,000/- all of a sudden is not known.
It is not that he was keeping the agricultural income in any bank every year as such he happened to issue cheque for Rs.1,50,000/- to the wife of AO. The very 108 transfer of cheque for Rs.1,50,000/- from the account of father of AO and by just opening the account three days prior to the purchase of asset No.1 can not be said to be bona fide and it is nothing but a suspicious circumstance. Though the wife of
AO borrowed a sum of Rs.7.20 which is not in dispute her claim that she received
Rs.1,50,000/-from her father-in-law and Rs.90,000/- from R. Apparao is nothing but suspicious and it is not at all safe to believe such a theory. The very opening of account just three days prior to purchase of the property in the name of father of
AO and transfer of Rs.1,50,000/- to the account of wife of AO appears to be a deliberate act. Merely because the wife of AO borrowed a sum of Rs.7,20,000/- it can not be said that item Nos.1 and 2 of the assets are with legal sources. Here the value of the item No.2 is Rs.8,20,000/-. The contention of the AO with regard to the sources for developing asset No.2 will also be appreciated here-in-after. So the wife of AO borrowed only Rs.7,20,000/- which is less than ½ of the value of asset Nos.1 and 2. The entries in the so called income tax returns of the wife of
AO can not be a basis to this Court to say that she has resources for item No.1 and the genuineness of IT returns will be discussed herein after.
245.Turning to the asset NO.2 the learned counsel for the AO contended that the value of the developments was only Rs.6,41,000/-. This Court negatived such a contention. The sources for asset No.2 according to the contention of AO is that the wife of AO taken an amount of Rs.5,50,000/- from D.W.19 and deposited the same in State Bank of Hyderabad, Anakapalli and taken loan of Rs.5,10,000/- to meet the expenditure and it was shown in her IT returns.
246.Now coming to the evidence of D.W.18 she deposed that in December, 2000 she also borrowed Rs.5,50,000/- from Jagarapu Apparao to develop item No.1 of the asset. She deposited the said amount in the FD in SBH, Anakapalli i.e., (Rs.45,000/- x 11 and Rs.55,000/- x 1) and on the basis of FDs she borrowed an amount of Rs.2,00,000/- and Rs. 3,10,000/- in two occasion from the said bank.
She meet the remaining expenditure out of her savings of Rs.1,31,000/-.
247.According to the evidence of D.W.19 he also given Rs.5,00,000/- out of his sources to his daughter in law for effecting repairs to asset No.2. This contention of the defence is seriously opposed by the prosecution. It is to be 109 noticed that in respect of asset No.1 the wife of AO claimed to have got of an amount of Rs.1,50,000/- from the account of her father-in-law. Now peculiarly when it comes to asset No.2 she is claiming that she borrowed Rs.5 lakhs or
Rs.5,50,000/- from her father-in-law and then she made deposit of the amount in a bank and on the FD she borrowed Rs.3,10,000 + Rs.2,00,000. So the alleged basis for pooling up the resources for item No.2 is the amount said to be given by D.W.19 to D.W.18 only. Now this Court has to look into the bona fides if any in the above said contention. Here I would like to make it clear that in Ex.P.106 there is also an entry regarding transferring of the amount of Rs.5 lakhs on 17.11.2000. It is not known to which account it was transferred. Even it is not the case of the wife of AO or D.W.19 that the so called giving of Rs.5,50,000/- by D.W.19 to D.W.18 is born out by any bank transaction. Basing on Ex.P.106 such a probability can all together be ruled out because the so called transfer of Rs.5 lakhs to an account (unknown) is only on 17.11.2000. Here the claim is that in December, 2000 the wife of AO borrowed Rs.5,50,000/- from D.W.19. It is not understandable as to why such an amount could not be born out by any transaction especially an amount of
Rs.1,50,000/- claimed by wife of AO pertaining to asset No.1 was through a bank transaction. So except a oral say that D.W.19 lent an amount of Rs.5,50,000/- to wife of AO it is not born out by any record. The mere deposit of an amount of Rs.
5,50,000/- in the bank by the wife of AO does not mean that the amount that was given to D.W.18 by D.W.19. The very deposit of an amount of Rs.5,50,000/- by
D.W.18 in the bank especially when she borrowed such an amount to meet the developments in asset No.1 is quite unnatural. It is quite unnatural that having kept such an amount in the FD she venture to borrow Rs.3,10,000/- and
RS.2,00,000/- as loan on the said FD. There is no dispute about borrowing of
Rs.5,10,000/- by the wife of AO on the FD. But the AO has to explain for sources for making such FD of Rs.5,50,000/-. No reliance can be placed upon the evidence of D.W.18 and D.W.19 in this regard in the light of the reasons furnished supra. I am not convinced to accept the defence theory that the father-in-law of AO lend an amount of Rs.5,50,000/- to D.W.18 without being born by any transaction especially when he allegedly sent Rs.1,50,000/- through bank to D.W.18 in respect 110 of asset No.1. Here the total value of the asset Nos.1 and 2 is Rs.17,80,000/-. The
AO is able to show that only an amount of Rs.7,20,000/- was under bank loan. So it is less than half of the asset Nos.1 and 2. The deposit of Rs.5,50,000/- by wife of
AO in bank is from unknown sources. Hence, I hold that the AO miserably failed to probablise his contention that his wife has sufficient sources for purchasing item
No.1 of the asset and for making developments in asset No.1 i.e., asset No.2.
248Coming to the asset Nos.3 to 5, this Court did not tag the value of of the asset No.5. The case of the prosecution is that AO purchased asset NO.3 and made developments i.e., by constructing a flat in asset No.3 i.e., asset No.4. Here the AO purchased asset No.3 on 13.12.2000. The so called development agreement was on 21.12.2000. It is the contention of the AO that he borrowed Rs.2 lakhs from the bank. It is to be noticed that the AO did not obtain prior permission by explaining the sources to purchase asset Nos.1 and 2 and he miserably failed to obtain the prior permission for acquiring the said immovable properties as this
Court already pointed out. Here obtaining of loan of Rs.1,90,000/- for purchase of house by AO was on 21.3.2001 i.e., much subsequent to purchase of asset No.3 and entering into development agreement dt.21.12-2000. So it appears that only to boost up his contention that he borrowed loan in respect of acquiring asset No.s3 and 4 AO obtained loan of Rs.1,90,000/- subsequent to acquisition of asset No.3 and 4, it is very difficult to accept the contention of the AO that he had sufficient sources to acquire asset No.3 and 4. Hence, AO had miserably failed to probablise his contention in this regard.
249.Turning to asset No.7 it is an agricultural land in an extent of 12.81 cents in the name of wife of AO for purchase value of Rs.4,90,000/-. The contention of the accused is that according to the evidence of D.W.18 she purchased the said item after taking loan of Rs.4 lakhs on the deposits made by her. The learned counsel for the AO relied on the evidence of D.W.18 in this regard and contended that she had sufficient sources to purchase the property.
250.Coming to the evidence of D.W.18 she deposed that she purchased an extent of 12 acres 81 cents in Papayyapalem for Rs. 4,90,000/- with crop of cashew aged 10 years( Ex.P102) from two persons. Jagarapu Apparao arranged the 111 said transaction. In March, 2001 she taken Rs.5,40,000/-. She added Rs.60,000/- of her savings and deposited the total Rs. 6,00,000/- in the bank in her name.
she decided to purchase the said land in March, 2001. The registration was done on 14-05-2001. Out of Rs. 6,00,000/- she deposited Rs. 4,50,000/- in FD on the advise of Bank of India for one year. The Bank promised to arrang loan on the FD.
She obtained loan of Rs. 4,00,000/-. She paid consideration to the sellers by way of Demand Drafts. The rest of the amount was paid out of her savings by way of cash.
251.Coming to the evidence of D.W.19 he deposed that her daughter-in- law purchased asset NO.7 in May, 2001. He also given Rs. 5,40,000/- to his daughter in law for purchasing the said property. He given the said amount out of his agricultural income.
252.It is to be noticed that D.W.18 borrowed a sum of Rs.4,00,000/- from the bank but it is said to be on the basis of the FD she made to a tune of
Rs.4,50,000/- out of the amount of Rs.6 lakhs said to be given to her by her father- in-law. It is to be noticed that even according to the wife of AO when she came into possession of the so called Rs.6 lakhs which she taken from her father-in-law it is for to explain why she did not get that amount transferred into her account from the account of D.W.19 especially when she allegedly happened to get an amount of
Rs.1,50,000/- transferred in respect of asset No.1. So it is clear that absolutely there is no convincing evidence that father-in-law of AO given an amount of
Rs.5,40,000/- to her daughter-in-law for purchasing the property. So what is material here is the resources of D.W.18 to deposit Rs.4,50,000/- by way of Fixed
Deposit. It is quite difficult to believe the self serving evidence of D.W.18 and
D.W.19 in this regard. In the light of the various reasons furnished supra it is quite improbable that the father-in-law of AO handed over an amount of Rs.5,50,000/- to her daughter-in-law so as to purchase item No.7 of the asset. It is not known whether it is out of charity or by lending. It is to be noticed that there appears to be a deliberate effort on the part of AO in bringing some documents into existence such as the so called agreement executed by his father agreeing to provide education to one of the daughter of the AO which this Court already dealt with.
112
There was no necessity absolutely for D.W.19 for making such an agreement. So when such trivial issues were brought into a form of document which is nothing but suspicious it is not known as to how D.W.19 handed over a sum of Rs.5,40,000/- to his daughter-in-law without being born out by any transaction. I am not inclined to believe this theory as such I hold that the AO miserably failed to explain the sources to his wife to purchase item No.7 of the asset. As this Court already pointed out Item No.8, 9 and 11 of the assets are deleted and they can not be tagged to AO. Further as this Court already pointed out the transaction relating to item No.10 of the asset is nothing but bogus as such it is to be held that AO had no sources to acquire item No.10 of the asset.
253.There is no dispute about item NO.12 (1) of the asset to a tune of
Rs.2,04,772. The monthly subscriptions of AO in this regard does not match to his net drawings of his salary. Coming to the asset No.13 (2) it is relating to deposit of
Rs.4,50,000/- by D.W.18 having claimed from her father-in-law to purchase asset
No.7 and AO miserably failed to prove the resources for making such deposit as this
Court already pointed out. Similarly sub item Nos.3 to 16 of asset NO.13 is the deposits in the name of wife of AO and it is the case of AO that his wife took the said amount to develop item No.1 of the asset and this Court disbelieved such a theory. This Court already dealt with the contentions of the AO regarding item
No.14 sub item No 1 to 3 and further this Court disbelieved the theory of AO relating to item No.15 to a tune of RS.4,51,000/- in Sriram Investment in the name of him and his wife and this Court upheld the case of the prosecution in this regard.
This court further disbelieved the defence of AO relating to sub-item No.1 and 2 of asset No.17. In the light of the above reasons I hold that the AO miserably shown the sources for acquiring the above assets.
254.This Court has gone through a decision cited by the learned counsel for
AO in 2006 (1) Crimes 68 (SC). The learned counsel for AO relied upon the said decision and his obvious contention appears to be when both AO and his wife were living together and wife was having sufficient sources of income and when the accused had provided satisfactory explanation that all the money belonged to his wife and Income Tax department had assessed the same in her name, the defence 113 of AO is true.
255.Coming to the present case on hand, I would like to make it clear that in the light of the above reasons the AO miserably failed to show the sufficient sources for acquisition of the assets in the name of his wife and in his name as this
Court already pointed out. Here, I would like to make it clear that the accused is heavily relying on the income tax returns. It is a case even as evident from Ex.P.56 the income tax file relating to AO his wife and his father i.e., Ex.P.33 copies of IT returns pertaining to accounting year 1998-99 and 1999-2000 and further the copies of IT returns in Ex.P.56 pertaining to the wife of AO during the year 1998-99 and 1999-2000 and in the name of AO for the accounting year 1998-99 and 1999- 2000 and in the name of father of AO during the year 1998-99 and 1999-2000 shows negligible income. D.W.19 in his evidence deposed that after ACB registered the case against AO the income tax issued notices to him as such he and wife of AO and AO filed tax returns. So the filing of the some returns were in the year 2003 i.e., when the investigation in this case is in crucial stage. Absolutely enquiry conducted by the income tax authorities was especially when the investigation was going on and further as evident from the various income tax returns marked at the instance of defence those were when this matter has been seized before this Court.
At the out set, I am of the considered view that the orders passed by the income tax authorities are not binding upon this Court to accept the same as it is. The
Court is enquiring into the guilt of the accused by framing specific charges. Under the circumstances this Cort has judge the guilt of the accused by looking into the material available on record. This Court is going to deal with the contention of the
AO with reference to the file under Ex.P.56 and the orders passed by the income tax authorities while appreciating the evidence to decide the income of wife of AO and his father. As the AO miserably failed to explain the sources for acquiring immovable properties which are tagged to him and considerable worth of bank deposits in the form of FD's and debentures etc., I am of the considered view that the above said decision is of no use to the case of the AO. Now it is pertinent to deal with the additional income claimed by AO.
114
ADDITIONAL INCOME CLAIMED BY AO
256. Item No1: Agricultural income relating to the wife and father of
AO
The learned counsel for AO contended that the total income in this regard is Rs.76,59,581 + Rs.2,20,250=78,79,831/- and the expenditure incurred in this regard towards agriculture is Rs.9,50,746/- and the rest of Rs.69,29,085/- is the agricultural income under this head. In this regard he relied on the evidence of
P.Ws.6 to 9 to contend that the father of AO acquired agricultural lands in his name.
D.Ws.4 and 9 supported the case of the AO by deposing that they given their lands on lease to father of AO. The evidence of D.Ws.2, 3, 4, 9, 12, 18 and 19 is relevant to decide the agricultural income. Apart from the ancestral properties D.W.19 was having he also taken out certain lands from D.W.4 and D.W.9 on lease and EX.D.9 and D.10 are the xerox copies of lease agreements. P.W.40 during cross examination admitted about the obtaining certain certificates by him from M.R.O., during investigating and examining of number of witnesses and the prosecution deliberately given up such witnesses and the AO examined some of the witnesses.
Through the evidence of P.W.40 AO got marked Ex.P.131 to P.135 which contains several income certificates issued by the revenue authorities to the father of AO and they can be taken as true and the prosecution did not get them into evidence but the defence get them into evidence and Ex.P.131 to P.135 are clear that the income certificates were issued after due enquiry. So father of AO was having considerable agricultural income. The evidence of P.W.2 is of no use to the prosecution. D.W.2 spoken about yield particulars and expenditure. He supported the defence theory. D.W.3 also deposed about the yield particulars. As the original lease agreements were torned away Ex.D.9 and D.10 were marked by the defence.
The detailed agricultural income were also reflected in the income tax returns and when the income tax authority passed orders, the income tax department went in appeal and the orders were also confirmed by the Commissioner of Income Tax
Tribunal and that accordingly income as shown by the defence in this regard can be considered.
257.On the other hand the learned Special Public Prosecutor contended 115 that the additional income claimed by the defence witnesses through the oral evidence as well as Ex.D.28, 29, 30, 32, 33, 34, 35 and 46 can not be considered for the purpose of showing lawful income. The income tax returns filed by the AO and his wife were only after search. The evidence of D.W.12, 19 and 20 would not render any support to the case of the accused. The Investigating Officer did not consider the said income as it was not communicated to the competent authority.
Known sources of income meas the income received from any lawful source, receipt of which has been intimated in accordance with the provisions of any law, rules, orders for the time being applicable to a public servant. Hence, the additional income can not be considered.
258As this Court already pointed out P.W.6 to 9 did not support the case of the prosecution. Item NO.8, 9 and 11 are deleted from list of the assets attributable to AO. There is no dispute that the father of AO was having around 10 acres of ancestral land. It is not in dispute. The income on the said land is in dispute. The dispute is also regarding the huge extent of lands said to be cultivated by D.W.19 under the cover of lease agreements and income claimed thereon.
259.Coming to the evidence of D.W.4 his evidence in substance is that he is having 30 acres of land which is his ancestral property as well as self acquired by him. About 20 acres of land is located in Y.D.peta hamlet of Bappannapeta and other extent is located in Mulagapudi Bennavaram. He know Jagarapu Apparao.
He leased out the land in Y.D.Peta to an extent of 19.48 acre to Jagrapu Apparao in the year 1988 up to the period of 2005 but in the year 2003 he taken over the possession from Jagarapu Apparao. There was cashew garden in the said land and it was grown up. The Jagarapu Apparao agreed to pay Rs.20,000/- to him for the said extent and he has to bear the expenditure of the crop. The lease was agreed to be enhanced 10% per year. They entered in to lease agreement. At the time of taking over of his lands in the year 2003 he torned away the lease agreement.
Ex.D9 is the xerox copy of the lease agreement ( filed along with memo and it is marked subject to objection by the Spl.PP). It bears his signature. Jagarapu
Apparao paid the agreed lease to him till the year 2003. In the year 1990 he leased out an extent of 5 acre 40 cents of his land and acre 4.72 cents of his wife 116 to Jagarapu Apparao in the village Mulagapudi Bennavaram. There was coconut crop in 5 acre 40 cents of his land. Jagarapu Apparao agreed to give half of the coconut crop to him every year till the completion of lease period and to implant and safe guard the Gua and Sapota saplings to be supplied by him to Jagarapu
Apparao. He need not pay any amount to him for 5 years and there after he has to pay Rs.5,000/-per annum for the first 2 years and there after 5 % increase for every 2 years. There was Mango trees in the land of his wife. He (D.W.4) taken over the possession of the said land in the year 2003. He also torned away the original agreement. Ex.D10 is the xerox copy of lease agreement. ( filed along with memo and it is marked subject to objection by the Spl.PP). It bears his signature.
During cross examination he deposed that he was examined by ACB Inspector previously in connection with this case. He did not hand over the copies of lease agreements to ACB Inspector. His wife did not enter in to any lease agreement with Jagarapu Apparao. He denied that he fabricated Ex.D9 and D10 to help AO.
He denied that he did not enter in to any lease agreements with Jagarapu Apparao and that he did not lease out his land to him and that he is not competent to speak about the income derived by J.Apparao.
260.Turning to the evidence of D.W.9 another so called person who leased out his lands to J. Apparao he deposed that in the year 1984 he purchased 22 acres 70 cents of land in Karaka village, Golugonda Mandal. The said lands were barren by the time of his purchase. He planted Mango and cashew in the said lands. He leased out the said land to Jagarapu Apparao in the year 1986 for a period of 15 years i.e., till 2001. J.Apparao agreed to pay Rs.20,000/- as lease per year to him after the crop reached harvesting stage. Generally the mango and Cashew plantation would give yielding from 5th year. There was lease agreement in writing between him and J.Apparao. It was torned by him after the lease period was over. During cross examination he deposed that he did not cultivate the lands personally. He did not produce any document today regarding purchase of lands by him. He denied that there was no possibility for any yielding on his lands. He did not obtain any yield particulars either from revenue authorities or from agricultural department. He denied that he is not competent to speak about the yield 117 particulars. He denied that he did not let out his lands to Jagarapu Apparao. He denied that he did not torn away any lease agreement.
261.Coming to the evidence of D.W.19 he deposed that in the year 1986 he taken lands on lease to an extent of 22 acres in Karaka village, Golugonda Mandal from Vemuri Murali Krishna. The lease period was 15 years. The lease amount was Rs.20,000/- per year for entire land. He cultivated Cashew and Mango crop in the said land. He also raised pulses in the said land as interim crop. The lease was expired after its period. He returned back the lease agreement to Vemuri
Murali Krishna. There was also water sources to the said land from two wells. He also took lands to an extent of 19 acres on lease from R.Veera Venkata
Satyanarayana, Bapanna Peta village. The lease amount was Rs.20,000/- per year for entire land for period of 20 years. The lease was to be enhanced for every two years of 10%. In the year 2003 he surrendered the lands to R.V.
V.Satyanarayana. In the year 1990 he also taken lands of an extent of 10 acres in bits from the wife of R.V.V. Satyanarayana. The lease amount was nil upto five years and there after Rs,5,000/- per annum for first two years and there after 5% increase for every two years. Ex.D9 contains his signature and Signature of R.V.V.
Satyanarayana. He totally cultivated 52 acres of land on lease as above. During cross examination he denied that Ex.D.9 is brought in to existence to boost up the income. He denied that he had no agricultural income on any lease hold lands and he never taken any lands on lease and that the agricultural income as deposed by him is false only with an intention to help his son(AO).
262.It is to be noticed that Ex.D.9 and D.10 are the xerox copies. It is not known when the xerox copies were taken from the original. It is not understandable as to how and why the original lease agreements were torned away by D.W.4 and 9 especially when they presented xerox copy of so called lease agreement. The prosecution is seriously disputing Ex.D.9 and D.10 which are brought into existence subsequent to ACB raid. It is to be noticed that it is not known from whose custody Ex.D.9 and D.10 came into existence before the court.
It is not clear from the evidence. It is to be noticed that if D.W.19 was having
Ex.D.9 and D.10 in his custody as on the date of ACB raid it would have been found 118 in the house of D.W.19 at the time of house search. If it is the case of the defence that Ex.D.9 and D.10 are produced by D.W.4, the AO has to show the probabilities as to how and why D.W.4 preserved Ex.D.9 and D.10 especially when he torned away the original agreements. So the circumstances in which Ex.D.9 and D.10 are produced before this Court are quite doubtful and their evidence is not clear in this regard. So it is clear that as on the date of house search by ACB in the house of
Jagarapu Apparao or in the house of AO Ex.D.9 and D.10 were not at all in existence and they appears to have been brought into existence subsequently. In the absence of producing the original of Ex.D.9 and D.10 the defence theory is not at all believable. Ex.D.9 and D.10 are quietly in admissible in evidence for the reason that the evidence of D.W.4 that the originals were torned away is not at all convincing. When Ex.D.9 and D.10 were allegedly preserved all through, it is not understandable as to why the originals were destroyed. As the AO failed to putforth any probable theory for not producing original of Ex.D.5 and D.10, it is difficult to support his theory that his father cultivated about huge extent of lands by way of lease. Coming to the evidence of D.W.9 his evidence that he torned away original lease agreement is not at all convincing.
263.According to the evidence of D.W.2 he is having 2 Acres of Agricultural land in Pylavanipuram. He know Jagarapu Apparao who owned 10 Acres of land in several bits in Pylavanipuram and Lalam Koduru. He had 75 cents of land near by his lands. The said Jagarapu Apparao used to cultivate paddy and Cashew in the said lands. He used to raise sarugu also. In the year 2003 and prior to the yielding of paddy crop per acre used to be 30 to 35 bags. There used to two crops of paddy per year. The yielding for second crop is more than the first crop. In between the two crops there used to be raising of pulses. Per acre the yielding of pulses used to be 4 bags. The weight of paddy bag is 75 Kgs. The lands were cultivable through water from tanks by name Goapal Rao Cheruvu and Thummala
Cheruvu. There were two wells in the said lands. The expenditure per acre for paddy was Rs.4,000/-. The Sarugu plantation used to reach the stage of harvesting after 4 years. He know one Pyla Sarweswara rao(PW2). P7W2 had no lands near the lands of Jagarapu Apparao. He is the supporter of Congress 119
Party. Jagarapu Apparao had 40 cents of land Pudimadaka Village. He used to raise Cashew in the said lands. During cross examination he denied that the lands in Pylinvaipuram were rain feed only and there was no other source of irrigation.
He denied that unless Kotha cheruvu was with full of water there was no possibility of cultivating lands. Witness says that there was no Kotha cheruvu and that the yielding of paddy crop per acre was only below 22 bags and that since the year 2000 there was no source of irrigation to the lands in their village and that they were not able to get any income and that the is deposing false.
264. Here the evidence let in by the prosecution through the examination of P.W.2 is that the lands in Pylivanipuram were only rain feed. During cross examination by the defence counsel he denied that he has no lands in the locality and that he has no knowledge about the agriculture. The defence examined D.W.3 to speak about the so called agricultural income of the wife of AO pertaining to asset No.7 and pertaining to the lands purchased by J.Apparao. Here I would like to make it clear that the AO miserably failed to show that his wife has sufficient sources of income to purchase asset No.7. In 2004 (1) ALD (Crl.) 563 (AP) cited by Special Public
Prosecutor the Hon'ble High Court of A.P. held that while arriving whether a particular asset is acquired from the known sources of income, it is just and proper to consider the items acquired at the earlier point of time, date wise keeping in view of the savings at the relevant period of time. The method and manner in which the ACB is adopted is not correct. Coming to the present case on hand also the ACB did not show expenditure and exact income of AO keeping in view the acquisition of assets in date wise. However, the ACB in all the DA cases is adopting the procedure taking into consideration the total assets, expenditure and income during the check period. Further the Hon'ble High Court of A.P., in the above said decision held that in case where a particular property is acquired which is a disproportionate asset to the known source of income of the accused and if that property derived substantial income and if that income has been taken into account at the end of the check period though the property is acquired from the unknown sources of income then it is difficult to prove the guilt of the officers under Prevention of Corruption Act. In the light of the above decision of the Hon'ble High Court of A.P., this Court can not 120 allow any income to the wife of AO regarding asset No.7 and the evidence of D.W.3 to speak about asset No.7 is of no use to the defence.
265. Coming to the evidence of D.W.12 who another son of D.W.19 he used to assist his father in agricultural operations and his father has huge agricultural income etc.,D.W.19 is the father of AO who deposed that he is having lakhs of income. It is to be noticed that to decide the agricultural income claimed by AO the oral evidence let in is of no use to the case of the AO. As this Court already pointed out AO miserably failed to probablise his contentions regarding the genuineness of
Ex.D.9 and D.10. The very existence of Ex.D.9 and D.10 and the manner in which it is brought into existence shows any amount of suspicious circumstances about its genuinity. This Court has carefully look into Ex.P.131 to P.135. It is no doubt true that Ex.P.131 to P.135 files contains the so called income certificates issued by revenue authorities. It is to be noticed that though the investigation officer examined certain persons to negative claim of AO when the accused has set up a theory that his father had considerable income apart from his wife and that the revenue authorities are said to have issued income certificates but they were not examined by prosecution. It is to be noticed that merely because the prosecution did not examine the so called revenue officials the case of the prosecution can not be thrown out. It is for the accused to probablise his defence with regard to the additional income. It is sufficient on the part of the prosecution to show the assets of the AO and the sources known to the prosecution in the light of the explanation 13(1)(e)of Prevention of Corruption Act. It is for the accused to probablise his defence theory. It is to be noticed that to ascertain the agricultural income of a particular person lot of exercise is needed by the revenue officials.
Firstly, the revenue officials have to ascertain as to whether a particular person is really having such lands by looking into the copies of No.3 adangal and further to ascertain as to the nature of the crop he raised and the sources of irrigation etc., to the said lands. It is to be noticed that the actual agricultural yield obtained by a particular person and the selling of the yield by a person is not born out by any record after long time. The proper exercise to be done by revenue authorities is that the average yield particulars and the particulars 121 of rain fall, yielding sources and further the average market value prevailing in the particular district or in the surroundings and to be taken into consideration. Here except the so called income certificates said to be issued by the revenue authorities virtually no basis is probablised by the AO as to how the revenue authorities could issue such certificates. Hence, the mere marking of Ex.P.131 to P.135 are of no use to the case of the AO in my considered view. The accused is heavily relying on the income tax returns. This Court carefully verified firstly Ex.P.33 made up file which contains the so called IT returns of wife of AO pertaining to 1998-99 and 1999- 2000 in which negligible income was shown. There is no dispute that when the ACB sleuths after conducting raids sent a report to the income tax authorities they issued notices to the AO, his wife and his father and according to the evidence of
D.W.19 they filed income tax returns having received the said notices.
266.Much has been argued regarding the income tax returns available in
Ex.P.33 made up file and Ex.P.56 and about several orders passed by the Income
Tax Assessing Officer and the orders passed by the Commissioner, Income Tax and
Income Tax Tribunals. It is the contention of the AO that all the sources of income of his wife and father were duly shown in the income tax returns and income tax authorities accepted their income as such he duly accounted for the income derived.
267.Now it is pertinent to look into Ex.P.33 the made up file. As seen from
Ex.P.33 the copies of income tax returns of the wife of AO for the accounting year 1998-99 and 1999-2000 are available. There is no dispute that the income shown in the above said returns is quite meager. It is to be noticed that according to the evidence let in Ex.P.56 is the made up file and it contains copies of the income tax returns secured by the investigating agency by corresponding with income tax authorities. There is no dispute that D.W.18 and D.W.19 and the accused received notices from the income tax authorities when the ACB sent a report alleging that
AO possessed disproportionate assets.
268.It is the contention of the AO that the investigating agency did not produce all the income tax returns being filed from the very beginning. It is very difficult to accept such a contention. It is the bounden duty of the AO to produce 122 proof regarding the copies of the income tax returns right from the year 1993 or prior to that to boost up his contention. The copies of income tax returns are available in Ex.P.33 and P.56 made up file. Coming to Ex.P.56 it contains copies of income tax returns for the account year 2000-01 and 2001-02 of AO and similarly it contains the income tax returns of the wife of AO pertaining to accounting year 1998-99 filed on 16-4-2001, for the accounting year 1999-2000 filed on 16-4-2001, for the accounting year 2000-2001 and 2001-02. It further contains the copies of the income tax returns of Jagarapu Apparao, father of AO pertaining to the accounting year 1998-99, 1999-2000, 2000-01 and 2001-02 and it is quite interesting to note that all those were filed at a time on 26.3.2003. There is no evidence let in on behalf of AO especially covering a situation that right from the beginning the father of AO was filing income tax returns. So several income tax returns especially in the name of father of AO were only filed after ACB conducted raid in the house of AO and further they were filed only in the year 2003. This
Court can get support in this regard from the contents of Ex.D.1 the order dt.15.12.2004 passed by the Commissioner of Income Tax (Appeals)-1,
Visakhapatnam. The AO filed the said appeal as the income tax authorities attributed income of Rs.30,33,800/- to him on the ground it is of his father and it can not be tagged to him. As evident from the said order it is quite clear that the income tax returns of the father of AO pertaining to 1999-2000, 2000-2001, 2002- 2002 and 2002-2003 were filed on 26.3.2003, 26.3.2003, 27.3.2003 and 27.3.2003. It is quite evident from the same. So it is only after the ACB raid when income tax authorities issued show cause notices etc., the father of AO chosen to file income tax returns and further some of the returns by the wife of AO were also subsequent to the ACB raid.
269.Now I will like to refer here the several orders passed by the income tax authorities as it is the contention of the AO that the orders passed by the income tax authorities clearly explains the sources of income of him, his wife and his father. Ex.D.41 is order dt.9.6.2005 on the appeal filed by J. Ganesh for the assessment year 2001-2002 regarding the fine amount imposed. Ex.D.1 is the order dt. 15.12.2004 on the appeal filed by J. Ganesh (AO) regarding the 123 assessment year 2001-2002 when the income tax of Rs.30,33,800/- was tagged to
AO by the Original Assessing Officer. Ex.D.42 is the order dt.21.7.2006 pertaining to assessment year 2002-2003 on the appeal filed by AO when an amount of
Rs.3,86,555/- said to be of his wife was tagged to him. Ex.D.46 is the order dt.8.6.2006 pertaining to assessment year 2001-2002 on appeal filed on the ground that the income tax of Rs.17,66,600/- can not be tagged to the AO when it is of his wife. Ex.D.29 is the self same order. Ex.D.28 is the order dt.28.7.2006 pertaining to the appeal with a contention that an amount of Rs.2,98,821/- of wife of AO was unnecessarily tagged to AO. Ex.D.32 is the appeal in the name of
Jagarapu Apparao pertaining to 2001-2002 and the order is dt.6.6.2006 and it is filed that the assessing officer did not appreciate the contention properly. Ex.D.33 is the order dt.20-7-2006 relating to the appeal filed by Jagarapu Apparao. Ex.D.34 is the income distributed order in pursuance of the orders of the Commissioner of
Income Tax pertaining to assessment year 2001-2002 of Jagarapu Apparao. Ex.D.2 is the order passed by the Income Tax Appellate Tribunal, Visakhapatnam Bench,
Visakhapatnam in ITA 129/Vizag/2005 for the assessment year 2001-2002, I.T.A.
No.397/Vizag/2006 and ITA No.395/Vizag/2006. The defence marked Ex.D.35 and
Ex.D.38 which are no other than the said orders under Ex.D.2. There is no dispute that the appeals filed before the Commissioner of Income Tax (Appeals) were allowed setting aside the orders of the assessing officer and the said orders were also confirmed in the appeals before the Income Tax Appellate Tribunal,
Visakhapatnam Bench, Visakhapatnam. On going through the above facts and circumstances are such that when the wife of AO and his father filed income tax returns showing huge income of J. Apparao and J. Lalitha Kumari father and wife respectively, the assessing officer taken into consideration the said income but he tagged all the said income to AO. Then all the above three persons filed the respective appeals before the Commissioner of Income Tax stating that the income in the hands of wife of AO and his father can not be tagged to the AO and further they also challenged the correctness of the amounts arrived at by the original
Assessing Officer. They were allowed. Then the said orders were confirmed by the
Income Tax Appellate Tribunal. It is to be noticed that as evident from the orders 124 passed by the Commissioner, Income tax appeals, the original assessing officer taken into consideration the fact of ACB raid on the assets in the name of AO, his father and wife and further taken into consideration that the returns were filed subsequetn to ACB raid. The Commissioner of income tax did not agree with the findings of the original assessing officer and allowed the appeals. It appears that the Commissioner of Income Tax (Appeals), Visakhapatnam taken into consideration the sworn statements of the wife of AO and father of AO etc. and arrived at a conclusion that the properties and income derived by the wife of AO and father of AO can not be tagged to the AO. Here is a case that there is evidence of AO, his father and wife before this Court. This Court is enquirng into guilt of the accused by recording evidence and by appreciating the evidence. The scope of enquiry and the nature of the enquiry before the income tax authorities is all together a different aspect. For example if a person voluntarily goes to a income tax department and gave a statement or made a representation by filing income tax returns as if he has huge income, the income tax authorities being tax collecting authorities can not refuse to take the figures putforth by said person as income. Here is a case that this Court is deciding the guilt of the accused. Simply because the income tax authorities placed reliance on the statement of J. Apparao and Jagarapu Lalitha Kumar, the father and wife of AO respectively it does not mean that this Court has to take into consideration the evidence of D.W.18 and
D.W.19 because the income tax authorities believed their version. Virtually the law is not such. This Court has to appreciate the evidence by looking into the probabilities in the defence of AO and have to apply the yard-stick that whether the prosecution has placed convincing evidence in support of the charge framed against the accused. In other words the orders relied upon by the defence passed by the income tax authorities does not mean that this Court has to accept the figures shown in the income tax returns as gospel truth. If it is the law that the figures putforth in the tax returns carries any amount of genuineness nothing to be tried in this case. Here is a case that the accused miserably failed to prove that his father had filed income tax returns from the very beginning. It is not that the father of AO filed income tax returns regularly way back from 1990 or so showing 125 the huge amounts and the so called agricultural income in the tax returns. So the filing of income tax returns by the father of AO after ACB raid that too in the year 2003 appears to be a deliberate act. The Court has to look into the overall circumstances and the intention behind the AO, his wife and father in filing the so called original returns or revised returns in the year 2003 showing huge amount of agricultural income in the name of his father and name of his wife. It is to be noticed in the order passed by the Income Tax Appellate Tribunal there is a calculation that in the year 2007 the ACB deleted the assets, income and expenditure in the name of the father of AO and wife of AO and it was taken as one of the circumstances to dismiss the appeals filed. Now this Court can not endorse a view that the assets, income and expenditure in the name of father of AO and wife of AO were deleted by the ACB authorities. The ACB never deleted such expenditure, income and assets in the name of wife of AO and father of AO. It is the AO who made a representation and got Ex.X.1 GO and there is no dispute that it was rescinded subsequently by the Government. Under the circumstances, I am of the considered view that the fact that the appeals filed by wife of AO and father of AO were allowed by the Commissioner, Income Tax (appels) and that they were confirmed by the Income Tax Appellate Tribunal, in my considered view can not enable the accused to contend that he probablised his income, income of wife and his father income. It is for the AO to explain as to where the income tax returns of his father right from the year 1998 regarding huge income of agriculture are lying.
No explanation is coming from the mouth of the AO. On the other hand, even the returns filed by the father of AO were only from 1998-99 that too in the year 2003.
It is very difficult to appreciate the contention of the AO that his father was having lackhs of agricultural income right from the very beginning. As this Court already pointed out it is very difficult to up hold his contention that his father cultivated huge extent of agricultural lands by taking on lease and the original lease agreements were not brought in evidence and further the Court can not rely on the so called Ex.P.131 to P.135. It is pertinent to note that the FIR was registered against the AO in the year 2002. So when the investigation was going on the income tax authorities issued notices to AO, his wife and and his father on the 126 report sent by the ACB. So the enquiry that was going against these three persons was parallel to the investigation. Further the various orders in exhibit 'D' series i.e., the orders passed by the Commissioner of Income Tax and the Income Tax
Appellate Tribunal goes to show that several orders were passed after this Court had taken cognizance of the case. Virtually this Court can not take the contents of the income tax returns as gospel truth and further they are not binding upon this
Court so as to give finding that wife of AO and father of AO had huge income.
Simply because the appeals filed by the AO, his wife and father of AO were allowed, it does not mean that this Court has to take into consideration the income mentioned therein.
270.Here is a case that the AO miserably failed to probablise his contention that his father was filing income tax returns regularly. So when the ACB registered a disproportionate assets case against the AO raising severe allegations and when he received a notice from the income tax authorities the general tendency is on the part of a person like AO, his wife and father of AO is to boost up the agricultural income so as to save the accused from the clutches of Law. Because the
Commissioner of Income Tax placed reliance on the sworn statements of AO, his wife and father, this Court can not adopt such practices because, the Court has to appreciate the evidence by looking into the answers in the cross examination and by looking into the probabilities. The nature of appreciation before this Court is quite different from the nature of appreciation before the Income Tax Authorities. In the decision in 2005 (1) ALD (Cri) 462 AP cited by the prosecution the trial Court held that mere filing of income tax returns by wife of the accused is not sufficient to prove the income of the appellants wife. The said judgment of the trial Court was upheld by the Hon'ble High Court of A.P., Though the wife of AO examined as
D.W.18 but her evidence is not convincing. The evidence of D.W.19 is not convincing. The Court can rely upon the said decision to disbelieve tax returns.
271.This Court has gone through two decisions cited by the learned Special
Public Prosecutor. In 1999 CRI.L.J. 3967 in P. Nallammal etc., Vs. State represented by Inspector of Police, the Hon'ble Supreme Court dealt with explanation appended to Section 13 (1)(e) and held that the burden is cast upon 127 the public servant to account for excess wealth and that can not be discharged by showing that he possesses excess wealth by some clear sources, though not legally permissible. In the above said decision the learned counsel for the appellant putforth a contention that if the public servant satisfy the Court that the excess wealth possessed by him is attributable to the dowry amount which he received from the father in law of his son, the public servant is not liable to be convicted.
Then the Hon'ble Supreme Court held that asper the explanation 'known sources of income' of the public servant for the purpose of satisfying the Court should be 'any lawful source'. Besides being the lawful source the explanation further enjoins that receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant can not now escape from the tentacles of Section 13 (1)(e) of the Prevention of Corruption Act by showing other legally forbidden sources, albeit such sources are outside the purview of clauses (a) to (d) of the sub-section.
272.Turning to the another decision cited by the prosecution in 2004 (1)
ALD Crl. 691 the Hon'ble Supreme Court dealt with 13 (1)(e) of Prevention of
Corruption Act and the explanation there of and held that the prosecution is relieved of its burden of investigating into the sources of income to a large extent and the legislature cast the burden on the accused not only to offer a plausible explanation with regard to his large wealth but also to satisfy the Court that his explanation was worthy of acceptance.
273.Now coming to the present case on hand when it is the case of the AO that his father was having lakhs of rupees of agricultural income by cultivating the ancestral properties and also the lease hold lands, atleast it is the bounden duty of the accused if really he was also receiving any share from the said income to intimate to his employer i.e., the Government of AO in the annual property returns the deriving of the said lakhs of rupees of agricultural income. As seen from the property statements pertaining to EX.P.33 virtually there is no whisper in the property statements in the form-1 about the agricultural income. Similarly the accused also filed Ex.D.21 which contains the copies of property statements. In the 128 property statements ending with 31.12.1996 virtually there is no mention about the lakhs of rupees of agricultural income. What he mentioned that the average income is only Rs.80,000/- pertaining to that year. Coming to the property statement of 1997 there is no whisper about the agricultural income. Coming to the property statement of 1998 there is no whisper about the agricultural income. Coming the statement of property of 1999 also there is no whisper about the agricultural income. These are the circumstances which are appearing even from the evidence let in on behalf of the accused. The A.P. Civil Services Conduct Rules, 1964 are applicable to the AO. There is no dispute about the ancestral agricultural lands possessed by father of AO. But what is criteria is to decide about the so called lakhs of agricultural income derived on by the father of the accused. So it is quite clear in the property statements the accused was not at all showing the agricultural income of every year. Only there is one stray entry in Ex.D.20 pertaining to 1996 as that of the agricultural income of Rs.80,000/- on average. If really the father of AO was receiving lakhs of rupees right from the year 1989 from agricultural income in which if AO had any share and received the same he is bound to communicate the same to the Government in the proforma prescribed in A.P. Civil Services Conduct
Rules. Under the circumstances, I am of the considered view that the entries in the copies of income tax returns filed belatedly by the father of AO that too after ACB raid can not be taken as gospel truth and there is no probabilities shown by AO to accept such a figure by this Court. Even in respect of the ancestral lands AO was not at all showing the agricultural income in proforma-I. There were some stray entries opposite to the movable properties as if the sources were agricultural income. They are quite vague. There is no consisting stand on the part of the accused as to what was the agricultural income of his father and the share if any to him. The stray entries in the annual property statements are quite inconsistent with his contentions and there is no definite evidence that AO was receiving agricultural income from his father every year. In my considered view AO miserably failed to prove the agricultural income of his father. So the annual property statements filed by the accused as referred to above does not show his father received lakhs of rupees consistently by way of agriculture and he given any share 129 to AO and further the wife AO and father of AO filed their returns after ACB raid by filing original tax returns or revised tax returns as the case may be only in the year 2003. The appreciation of evidence before this Court is totally a different from that of the appreciation of the facts before the income tax authorities as such the several orders relied on by the accused to support his contentions are of no use to his defence. Having appreciated the evidence as above, I am of the considered view that AO miserably failed to show the huge agricultural income attributable to his father. The agricultural income attributed to his wife was only basing on the asset No.7 which the AO miserably failed to explain the sources for purchase of the said property as such in the light of the decision of the Hon'be High Court of A.P., in 2004 (1) ALD (Crl.) 563 (AP) such an income can not taken into consideration.
Needless to point out here there is no definite stand as to what was the agricultural income derived by wife of AO. Hence, I am of the considered view that the AO miserably failed to probablise his contentions with regard to the so called huge agricultural income of his wife and his father. Hence, I am not inclined to allow any income on this count.
274. 2. Stridhana property of cash of Rs.3 lakhs said to be converted into RS.7 lakhs:-
According to the evidence of D.W.18 at the time of her marriage her parents presented 16 tulas of gold and 2 kgs of silver and cash of Rs.3 lakhs towards pasupukunkuma. This Court already dealt with a contention that the father-in-law of AO was not capable enough to give huge amount of RS.3 lakhs way back in the year 1989 at the time of marriage as his income as an Attendor was very low and further he received retirement benefits of less than RS.1,00,000/-.
Though his retirement was subsequent to the marriage of AO, but the quantum of retirement benefits shows that by the time of marriage of AO, he must be receiving very meager salary. It is the evidence of D.W.18 she kept the cash of RS.3 lakhs given by her parents with her father-in-law for rotation. According to the evidence of D.W.19 his daughter in law handed over the said amount of Rs.3,00,000/- to him. He invested the said amount for interest by lending the same to others. He was also doing money lending. He made the said Rs. 3,00,000/- as Rs.7,00,000/- 130 by the year 2001 and returned the said Rs.7,00,000/- to his daughter in law.
Here I would like to make it clear that AO got job in the year 1993. It is the bounden duty of the accused to prove that he has furnished information to his department at the time of entry into service as to the assets standing in his name and in the name of his wife. There is no evidence on behalf of AO that at the time of entry into service he duly declared his assets before the Government and he duly shown the stridana property of Rs.3 lakhs kept under rotation for money lending in the hands of his father. It is not the case of the accused. It is very easy to depose that the wife of AO was given to Rs.3 lakhs and it was made into Rs.7 lakhs by doing money lending in the hands of father of AO. As this Court already pointed out the parents of D.W.18 were not capable enough to give such huge amount of
Rs.3 lakhs. Under the circumstances, I am not inclined to allow the income of Rs.7 lakhs under this head.
275.3. Income said to be received by D.w.19 towards hire charges of
Jeep bearing No.AP7 U 5596 to Forest Department:
The learned counsel for the AO contended that D.W.19 is the owner of the jeep bewaring No.AP7 U 5596 purchased by him for an amount of Rs.90,000/- and
AO intimated to P.W.40 about the hire charges received by D.W.19 and he (P.W.40) wantonly did not consider the said income. P.W.30 is examined to speak about
Ex.P.54 and P.55 intimations and pay drawn particulars of AO in respect of Jeep hired by D.W.19. He deposed that the father of AO hired the jeep to their department and Ex.P.78 is the document with three sheets pertaining to the said transaction and Ex.P.78 is relating to KD peta. According to him the vehicle was hired to Narsipatnam Forest Department for one year from April, 2000 to March, 2002 and Rs.1,08,000/- was awarded towards hire chargers. He deposed basing on Ex.D.4 Photostat copy which contains the signature of DFO. D.W.19 shown the income received on his hiring jeep in income tax returns. Hence, it can be considered.
276.At the out set, I would like to make it clear that D.W.19 filed his income tax returns only in the year 2003 i.e., subsequent to ACB raid and there is no evidence that prior to that he filed any income tax returns. Hence, the entries in 131 the income tax returns are of no use to the defence. As this Court already pointed out, this Court deleted asset No.8, 9 and 11 and further the AO miserably failed to prove the agricultural income of his father. This Court did not believe the income of father of AO. The Court did not tag the assets of father of AO and expenditure to
AO. Even the income if any received by the father of AO by hiring the jeep with department it can not be considered as income of AO. However, I would like to deal with the contention of the AO as to whether his father received any income in this regard. During cross examination of P.W.20 who was called upon by the prosecution to produce pay drawn particulars of AO, he deposed that the the father of AO hired the zeep to their department. He worked under DFO Biswas. He can identify the signature of the then superintendent G.Haranath and DFO Biswas.
Ex.P78 (marked now) is the document with 3 sheets pertaining to the above transaction. Ex.P78 is relating to K.D.Peta and it does not contain the particulars relating to Narsipatnam. The same vehicle was hired at Narsipatnam also for one year from April, 2001 to March, 2002 at hire charges of Rs. 1,08,000/-. The documents shown to him ( xerox copies ) contains the signatures of Biswas.
Ex.D4 is letter addressed by AO to conservator of Forest through K.Biswas, DFO,
Narsipatnam( 2 sheets). Ex.D5 is the letter addressed by AO to the conservator of
Forest through DFO, K.Biswas with regard of purchase of agricultural land by the wife of AO (2 sheets)( Ex.D3 to D5 are filed along with memo).
277.Here, I would like to make it clear that it is not understandable as to how when the AO was working in Forest Department, Narsipatnam the vehicle of father of AO was hired to the department when especially the AO was claiming income through his father. The very transaction under this appears to be a mis- conduct. A public servant who is in important position like DFO can not allow his family members or even his relatives to h ire the vehicle with department. The very hiring of the jeep by the father of AO to the department of AO in my considered view is irregular. It is very difficult to consider the income under this head as shown by the prosecution and even otherwise this income can not be considered as income of AO. Hence, I am not inclined to believe the income under this head.
132
278.4. Amounts received from chits by AO.
The counsel for the AO contended that the prosecution shown the expenditure for the chit bearing No.GS3 PV 24 for an amount of Rs.2,15,538 in the abstract of expenditure. But AO had also received an amount of Rs.2,02,207/- towards bit amount and it is reflected in Ex.P.127 and it is also found in the savings bank account of AO in Karur Vysya Bank dt.24.9.2001 and it is item NO.12 of the asset but the amount is not shown in the income column.
279.Admittedly an amount of Rs2,04,772/- is shown as asset of AO pertaining to SB loan account. As seen from Ex.P.17 Copy of bank account there is a clear whisper about the receiving of amount. Even in Ex.P.127 there is a whisper that AO was paid with prize amount of Rs.2,02,207. According to the answers spoken by P.W.40 in cross examination he issued show cause notice to AO regarding this head showing it as income of AO. It is not understandable as to why the Investigating Officer did not show this amount as income of AO. Hence, I am inclined to take into consideration Rs.2,02,207 as income of AO. The learned counsel for AO in his written arguments at page No.41 while claiming this amount also putforth a contention with regard to prize amount in chit group GLS DV 28to a tune of Rs.94,990/- and in chit bearing No. GL5 DV-40 to a tune of Rs.74,934.40 ps. This Court has verified Ex.P.125 which does not show the prize amount as
Rs.94990/-. On the other hand pertaining to GL5 DV 28 the prize amount is only
Rs.55,000/- and Rs.36,597 was deposited towards subscription in other chits and it is not received by AO. To a tune of RS.18,403/- a cheque and DD were shown and it is vague. There is no definite evidence that even the AO received Rs.18,403/-.
Further with regard to the amount of RS.74,834/- the prize amount under Ex.P.126 it was deposited towards subscription in another chit. So virtually the AO failed to prove that he actually received th bid amounts pertaining to GL5 DV 28 and GL5 DV
40. Probably for the above reason the learned counsel for AO did not seek to add any specific figures. So when the amounts pertaining to the above two chits were deposited in some other chits it is to be held that the amounts were not actually received by AO. Henc,e those can not be considered. Hence, I am inclined to consider Rs.2,02,207/- under this head as income of AO.
133
280.5. Savings of AO prior to the check period.
The counsel for the AO contended that prior to joining into Forest
Department the accused worked in Vinayaka Beer and Wines stores for a period of three years and later joined as an Assistant in LIC of India. The AO in his evidence deposed about the particulars of his previous service as well as particulars of his pay and allowances. Ex.D.37 is relating to his employment and income from 1986 to 1990. He also joined as Assistant cum cashier in November, 1990 and worked till July, 1993. Ex.D.38(7 sheets) is showing his employment and pay particulars.
The total income of AO prior to the check period as per Ex.D.37 and D.38 comes to
Rs.4,01,600 + Rs.87,291.57 ps as such the total savings comes to Rs.4,88,891.57 ps and AO could have saved half of the amount because he was a bachelor then and it could be considered.
281.Now coming to the evidence of D.W.20 in this regard, he deposed that he joined in the Forest Department on 09-11-1993. Prior to that he worked in
Vinayak Beer and Wines (Khodays Distilleries Distributor of A.P) in the year 1986 and worked there upto 1990. Apart from salary he was receiving commission during the said period. Totally he received an amount of nearly Rs.4,00,000/- during the said period. He obtained necessary document from Vinayaka Beer and
Wines. Ex.D37 is the documents (containing 10 sheets) issued by Vinayaka Beer and Wines stores showing his working, income and relieving (Ex.D37 is filed along with memo). After he was relieved from Vinayaka Beer and Wines he joined in LIC
Branch, Kodada as Assistant- Cum- Cashier and worked from November, 1990 to
July, 1993. He obtained attested copies of salary sheets from LIC Branch, Kodada and Secundrabad. Ex.D38 is document (containing 7 sheets) showing his working and income( Ex.D38 is filed along with memo). He got income of Rs. 90,000/- to 1,00,000/- during his working in LIC. During cross examination he deposed that he did not file his copy of his declaration relating to his properties at the time of his joining into service. But he given such declaration at the time of joining into service. He shown in the said declaration about his savings prior to his service. It is to be noticed that if the AO is having atleast half of the savings from the income derived prior to his joining into service and if he really declared the same in his 134 declaration before joining into service he would have produced the same. So when
AO had allegedly huge sum of Rs.2,44,445.79 ps. which he allegedly saved prior to his joining into service, he would have certainly disclosed the same in his declaration before the Government at the time of his entry into service and if really it is true he would have produced the copy of his declaration.
282.It is the contention of the prosecution that Ex.D.37 and D.38 are fabricated documents. Admittedly AO did not examine any person to prove the genuineness or otherwise of Ex.D.37 or Ex.D.38. Except self serving evidence of
D.W.2 there remains nothing in support of such a contention. In the absence of proving that AO saved RS.2,44,445 prior to his joining into service and in the absence of proving that he duly declared it before joining entering into service, the contention of the AO can not be accepted and it is not known where the AO was keeping the said huge amount of Rs.2,44,445 i.e., whether cash on hand or whether it was in banks is not clear. Hence, I am not inclined to uphold the income of AO in this regard.
283. 6. Amount said to be received by AO from his father in the years 1986 and 1987:
The learned counsel for AO contended that AO used to receive the amounts on different occasions from his father and D.W.19 also deposed that he had given amounts to AO out of his agricultural income. D.W.8 also deposed that he used to take care of the family of his youngest daughter and that D.W.12 also deposed it. D.W.12 also purchased properties subsequent to 2003. The amounts received by AO from D.W.19 have been reflected in IT returns commencing from 1993. In support of his contention he relied on Ex.P.56 and P.33 file consists of annual property statements and cash flow statements. The Investigating Officer failed to collect all the IT returns of D.W.18 and D.W.19. AO in his annual property statements shown the amounts received. Hence, it may be considered.
284.At the outset, I would like to make it clear that AO has miserably failed to probablise his defence with regard to huge agricultural income received by his father. There is no consistent evidence placed by the AO to show that he was receiving the share in the agricultural income of his father. The copies of the 135 property statements does not reveal the same. There were only stray entry in the property statements with all vagueness without explaining as to what was the agricultural income received in a particular year etc., The contention of the accused is that totally he received Rs.10 lakhs from his father. As this Court already pointed out D.W.19 filed income tax returns deliberately boosting up his income after ACB raid in the year 2003. The facts are evident from the record. AO miserably failed to prove his contention that his father was filing income tax returns right from the beginning. It is for the AO to adduce evidence in this regard. The income of Rs.10 lakhs claimed by AO, by any stretch of imagination can not be accepted. The so called cash flow statement is self made to boost up his income. Hence, I am not inclined to consider an amount of Rs.10 lakhs as amount received by AO from his father.
285.7. Rents which are said to be received by wife of AO to a tune of
RS.2,04,000/-:
The counsel for the AO contended that asset No.1 was let out to
D.W.15 and D.W.15 was the tenant of ground and first floor of the said building even prior to purchase of the said building by D.W.18. He deposed that D.W.18 purchased the said building in November, 2000 from Sri A. Rama Rao and that he was running Surya Chandra Electronics in his name till 2004 from December, 2000 by paying Rs.6,000/- per month towards rent for the ground floor and Rs.3,000/- for first floor till 31.3.2001 and thereafter 10,000/- per month for ground floor and
Rs.4,000/- for first floor. Hence, the income to a tune of Rs.2,04,000/- received by wife of AO on asset No.7 can be considered.
286.Coming to the evidence of D.W.15 he deposed that he did business in the name M/S Sri Divya Sai agencies and Home Appliances. His wife Nalini is the proprietor of Divya Sai agencies. She started the business in December, 2010.
The shop is located in the premises No.4-3-33, Chodavaram road, Anakapalli.
The said building consists of ground and first flour. In the ground flour their shop is situated. In the first flour their godown is situated. Jagarapu Lalith Kumari the wife of Jagarapu Ganesh is the owner of the said building. Jagarapu Lalitha
Kumari purchased the said building in November, 2000 from Addala Ram Mohan 136
Rao. In fact in the year 1988 he took the said building on lease from Addala Ram
Mohan Rao. From the year 1995 he run Sri Surya Chandra Electronics in the said building in his name till the year 2004. He was paying rent of Rs. 6,000/-for ground flour and Rs. 3,000/- for first flour from 1995. From December, 2000 he is paying the above said rent to Jagarapu Lalitha Kumari till 31-03-2001. From 01- 04-2001 he has been paying Rs.10,000/- per month to ground flour and Rs.
4,000/- to the first flour. There is no monthly rental receipts or agreement. He attested Ex.P100 as a attestor (He identified his signature on Ex.P100). The registration charges under Ex.P100 were paid by vendor as per Ex.P100. Ex.D24 is the said xerox copy of registration certificate (filed along with memo and marked subject to objection). He got filed an application with commercial tax department under Right to Information Act to get the information regarding his business in the said premises. He denied that prior to 2010 he never did any business in the said building as deposed by him.
287.It is to be noticed that it is a where AO miserably failed to prove the sources of his wife regarding asset No.1 and 2. This Court has pointed out various infirmities in the defence of AO regarding the manner in which wife of AO made developments in asset NO.2 and further regarding RS.90,000/- said to be borrowed by wife of AO and regarding Rs.1,50,000/- said to be sent by D.W.19 to D.W.18.
This Court given findings that AO failed to prove that his wife had sufficient sources to purchase item Nos.1 and 2 of the properties. So when the AO miserably failed to account for the sources for asset Nos. 1 and 2 the income derived there on can not be accepted in view of the judgment of the Hon'ble High Court of A.P., in 2004 (1)
ALD (Crl.) 563 (AP). Hence, I am not inclined to allow income under this head.
288.8. Income on tailoring by the wife of AO.
The counsel for the AO contended that D.W.18 even prior to her marriage was doing tailoring work and she continued the same even after the marriage. There is a merit certificate issued to her when she was studying 10th class under Ex.D.26 regarding the tailoring work and D.W.8 her father and D.W.10 younger brother and D.W.19 father-in-law also deposed about the same. In Ex.P.46 inventory report it is mentioned at Page No.4 and is written as 23 new sarees. They 137 were received by D.W.18 for stitching of falls and embroidery works etc., There was also new door curtains 25 meters and Herawath cloth 10 mts and 23 new blouse pieces and that 14 new fancy dress clothes were also seized. He sought to contend that the wife of AO was also doing tailoring and in the IT returns 2000- 2001 she claimed income and she was getting income.
289.Coming to the evidence of D.W.18 she deposed that she has been doing embroidery work even since before the marriage. She studied B.A. While she was studying 10th class she participated in sewing competition and stood first and she was given merit certificate by their Head Master. Ex.D26 is said original certificate( filed along with memo). During chief examination she deposed that totally she received income of Rs.3,94,000/- on embroidery till the year 2002.
During cross examination she deposed that she did tailoring and embroidery in her house only. She denied that she did not show the said income in her tax returns.
She denied that basing on school certificate she is deposing false regarding embroidery and tailoring. She denied that she had no time to do any embroidery work. So the prosecution is seriously disputing the income under this head.
290.At the out set I would like to make it clear in the copies of income tax returns pertaining to 1998-1999 and 1999-2000 which was found in Ex.P.33 there is no mention about the income on embroidery work. Coming to the copies of tax returns in Ex.P.56 also there is no whisper about the income under embroidery work. It was only in the tax returns filed subsequent to ACB raid, there was a whisper about the so called embroidery work. It is very difficult to place reliance upon such a document. In the annual property returns under Ex.D.20 there is no whisper by AO that his wife was receiving income on tailoring in the manner as contended. So it appears to be an after thought to putforth a contention after ACB raid that the wife of AO was having income on tailoring. Having regard to the probabilities and having regard to the evidence let in, I feels that it is very difficult to allow the income to the wife of AO under this head. Hence, I am not inclined to allow the amount under this head.
291.In view of the fore going discussions while appreciating the evidence relating to the additional income, this Court is allowing additional income to AO to a 138 tune of Rs.2,02,207/-. So this amount of RS.2,02,207/- is to be added to the income decided by this Court already to a tune of Rs.23,72,122/-. So the total income attributable to AO comes to Rs.25,74,329/- (Rs.23,72,122/- +
Rs.2,02,207/-). Here the expenditure incurred by AO is to a tune of
Rs.16,01,792/-. So if the said expenditure is deducted from the total amount of
Rs.25,74,329/- the likely savings are Rs.9,72,537/- (Rs.25,74,329/- (-)
Rs.16,01,792/-). Here the assets possessed by AO during the check period as on the date of ACB raid on 9.4.2002 is of Rs.51,17,371/-. So if the probable savings of Rs.9,72,537/- is deducted from the total value of the assets of Rs.51,17,371/-, the excess assets are to a tune ofRs.41,44,834/- (Rs.51,17,371-
Rs.9,72,537). These are the assets possessed by AO in excess of his sources of income.
292.Here I would like to make it clear that the net pay and draw allowances received by AO during the check period was of Rs.5,22,122/-. The major source of income of AO is only salary. Half of the amount gone towards domestic expenditure. The AO joined in the service in the year 1993. He was caught by ACB on 9.4.2002. The learned counsel for AO contended that there were no complaints against AO during his entire service and his duties were not directly relating to public and his duties were only supervisory and there is no evidence that he collected any amounts from any person by abusing his position etc., as such the case of the prosecution must fail.
293.Here, I would like to make it clear that Section 13 (1)(e) of Prevention of Corruption Act makes a distinct offence for possessing disproportionate assets to the known sources of income. The contention of the AO is that there were no complaints against him and that he had no access to the persons whose work was pending with him and that he had no access with government funds. When such a contention is raised the Court has to deal with the same. I would like to make it clear that merely because there were no complaints what-so-ever from any quarter against AO, it does not mean that he was doing his duties with all sincerity, integrity and honesty. What is material here is whether he is found in possession of disproportionate assets or not. Here, I would like to make it clear that Ex.P.34 is 139 the made up file relating to the allegations against AO and DFO containing 15 sheets. It is a file seized from the residence of AO at the time of house search. It is a file relating to certain complaints against AO regarding malpractices in an examination and they are found to be false. Another document is there in Ex.P.34 regarding allegations against K. Biswas, DFO and J. Ganesh (AO) with several allegations in discharge of their duties and that they turned crores of rupees on specific allegations. Ultimately those were enquired and found to be false. This
Court is referring Ex.P.34 only to negative the contention of the accused that there was no allegations against him in discharge of duties.
294.Here, I would like to make it clear basing on the evidence that there was spur of financial activities in the name of AO, his wife and father all of a sudden during crucial period of three years. Lakhs of rupees were pressed into service by way of depositing into bank accounts, by way of transfer from bank accounts and by way of purchasing immovable properties. So all of a sudden during crucial period of three years considerable properties were acquired in the name of AO, his father and wife of AO by spending lakhs of rupees. It is not as though right from the year 1989 the father of AO was gradually purchasing the properties one by another. It is not that the AO after entering into service acquired properties one by another with considerable marginal savings and out of his sources of income. The spur of financial activities from the year 1999-2002 involving lakhs of rupees in the name of his wife and his father in excess of their legal sources might have been caught in the attention of the ACB to have a look into the assets of AO. If the Court consider the dates of acquisition of the properties that are attributed to AO and his family members and also the properties in the name of benami (asset No.10) and posession in the name of his father, it is quite shocking to note that in short span of time said properties were purchased with huge amounts. All the circumstances, goes to show that all of a sudden lakhs of rupees in excess to the lawful and legal sources were pressed into service indulging in purchasing immovable prperties and further indulging in making huge deposits in banks and financial institutions. These are quite evident from the circumstances. It appears that unaccounted cash was all of a sudden pressed into service right from the year 1999-2002 indulging in 140 acquiring the immovable properties. It is all together a different aspect than for paucity of convincing and definite evidence, this Court is not able to tag asset No.8, 9 and 11 and certain amounts in the bank accounts to the father of AO. It is no doubt true that the father of AO had agricultural lands to a tune of 10 acres. It is no doubt true that if the lands are fertile there would have been consistent agricultural income. Even if there was considerable agricultural income on the agricultural holdings i.e., ancestral holdings of the father of AO the amounts that are in the bank accounts of father of AO and the amounts that were being spent for further acquisition of the assets even would in excess of the agricultural sources.
Whatever it may be the distinct feature of this case is that there was spur of financial activities involving lakhs of rupees by acquiring immovable properties and by getting fixed deposits and by keeping lakhs of rupees in the bank accounts and the ACB can not be find fault in registering the disproportionate assets case against
AO and all these things came into the attention of the ACB to put up a case and to investigate. One thing is certain that huge amount of money all of a sudden was pressed into service to acquire immovable properties during the period of 1999- 20002 and also to make huge amounts of deposits. Under the circumstances, I am of the considered view that AO has miserably failed to account for the excess assets are undoubtedly disproportionate to the known sources of income. There should not be direct evidence that the accused abused his office. Abusing of the office and gaining unlawfully etc., creates another distinct offence under Section 13 of
Prevention of Corruption Act and here the case of the prosecution is that the accused is found in possession of disproportionate asset to the known sources of income. With the evidence available on record, I am of the considered view that the prosecution is able to prove that AO is found in possession of disproportionate assets to a tune of Rs.41,44,834/- in disproportionate to the known sources of income and the accused has miserably failed to account for the same. The act of the accused in possessing huge assets which is quite excessive to the known sources of income clearly constitutes the offence under Section 13 (1)(e) of
Prevention of Corruption Act and in my considerable view the prosecution has proved its case to the extent above beyond reasonable doubt as such the accused 141 is liable to be convicted of the charge.
295.Now this Court has to decide that as the case against the accused is proved as above the disproportionate assets to the extent of RS.41,44,834/- are liable to be confiscated to State. As this Court already pointed out item Nos.1, 2, 3, 4, 7 and 10 are the immovable assets. Further there are huge deposits and amounts in certain banks and financial institutions. Havipng regard to the facts and circumstances, there is no guarantee that the small amounts in the savings bank account is still lying there because if the account is not operated there is every chance of closing the bank account. Further item Nos.15 of the investment i.e., attributed to AO and his wife is said to be beyond reach according to the defence of
AO and transaction of such an amount in the name of others is irregular as this
Court already pointed out. Under the circumstances, I feels that item No.1, Item
No.2, Item No.3, Item No.4, Item No.7, Item No.10, Item No.12 (1), Item No.13 (2) (3) (4)(5)(6)(7)(8)(9)(10) (11)(12)(13)(14), Item No.14 (1)(2) and (3) and item No.17 (1)and (2) and to an extent of Rs.7,062 from item NO.12 (10) is liable to be confiscated to State and all the above items comes to worth of
Rs.41,44,834/-. Hence, the confiscation order is to be passed accordingly.
296.In the result, the AO is found guilty of the charge under Section 13 (1)
(e) read with 13 (2) of Prevention of Corruption Act and he is convicted of the same under Section 248 (2) Cr.P.C.,
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in open Court this the 15th day of May, 2015.
Sd/-A.V.Ravindra Babu
III Additional District & Sessions Judge -cum- Spl. Judge for SPE & ACB Cases Visakhapatnam.
AO is questioned with regard to his right of appeal and his means to engage Advocate in the Appellate Court and further about the quantum of sentence to be imposed against him.
AO represented that he know that he is having right of Appeal and he has means to engage an advocate in the Appellate Court. With regard to quantum of sentence, he represented that he has three daughters and they yet to be settled and his father is suffering with kidney disease and his wife is also suffering with ill- health. The Learned counsel for the AO represented that a lenient view may be 142 taken against the AO while imposing sentence.
Having regard to the nature of the offence committed by the AO and the facts and circumstances in which the offence is committed, I feels that it is not a fit case to exonerate AO under the provisions of Probation of Offenders Act. This
Court in the Judgment elaborately dealt with the manner in which the accused committed the offence. The AO joined in the service on 8.11.1993. He went for training for about two years. The remaining period of service was about less than 7 years by the time of registration of the case. This Court discussed about the manner in which the assets surfaced in the name of AO and his family members especially during the period 1999-2002 within a span of three years. The method in which the offence is committed by the accused does not warrants this Court to take a lenient view. Having regard to the totality of the facts and circumstances and looking into the quantum of disproportionate assets that is attributed to AO, I feels that the accused is to be sentenced appropriately.
In the result, AO is sentenced to suffer rigorous imprisonment for 5 (Five) years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) in default to suffer simple imprisonment for 1 (One) year for the charge U/sec.13 (1)(e) read with 13 (2) of Prevention of Corruption Act. The period of remand undergone by
AO during the course of investigation shall be set off against the term of imprisonment (NIL).
Item No.1, Item No.2, Item No.3, Item No.4, Item No.7, Item No.10,
Item No.12 (1), Item No.13 (2) (3) (4)(5)(6)(7)(8)(9)(10) (11)(12)(13)(14), Item
No.14 (1)(2) and (3) and item No.17 (1)and (2) and to an extent of Rs.7,062/- from item NO.12 (10) shall be confiscated to State after appeal time is over and subject to result of the appeal, if appeal is filed. The bail bonds of AO shall stand cancelled forthwith
A copy of this judgment is ordered to be forwarded to the Head of the department of AO under Registered post with Ack. Due.
Dictated to the Personal Assistant in open Court, Transcribed by him,
corrected and pronounced by me in open court on this the 15th day of May, 2015.
Sd/-A.V.Ravindra Babu
III Additional District and Sessions Judge -cum Special Judge for SPE & ACB Cases Visakhapatnam.
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APPENDIX OF EVIDENCE
Witnesses examined o n behalf of the Prosecution: PW-01: Adepureddi Appala Naidu PW-02: Pyla Sarveswara Rao PW-03: Dhana Suresh Babu PW-04: Gaja Mahesh PW-05: Pentokota Sybrahmanyam PW-06: Muvvala Kotweswara Rao PW-07: P.Ramunaidu PW-08: Botta Lakshmana PW-09: Botta Appa rao PW-10: U.Vijaya Anand PW-11: G.V.Krishna Rao PW-12: J.Srinivas PW-13: Reddy Chandra Sekhar PW-14: N.Madhav PW-15: B.Srinivasa Rao PW-17: L.Srinivasa Rao PW-18: Y.Satyanarayana PW-19: Roshan Mohiuddin Zilani PW-20: Undavalli Suryanarayana PW-21: K.R.K. Raju PW-22: P.Shantharam PW-23: N.Narayan Reddy PW-24: K.Venkata Narasimharaju PW-25: P.Srinivasa Ra0 PW-26: A.Janakiram PW-27: V.Govind PW-28: Md.Karimuddin PW-29: K.S.S.T. Venkateswara rao PW-30: I.K.V.Raju PW-31: Dabberu Murahari PW-32: S.V.B.Vasantharajulu PW-33: Rithesh Kumar PW-34: C.Mahesh PW-35: Tadikonda Krishna Prasad PW-36: Manoj Kumar PW-37: K.Suresh PW-38: P.D.Hawes PW-39: B.Jyothi lakshmi PW-40: M.Ramesh Naidu PW-41: K.Ranga Raju
Witness examined on behalf of defence:
144
DW-01: Gorle Challamnaidu DW-02: Lalam Sanyasirao DW-03: Gurram Channarao DW-04: R.V.V.Satyanarayana DW-05: Rajana Apparao DW-06: Pyla Prasadarao DW-07: Kurmadas Appa rao DW-08: Lalam Chinakondayya DW-09: Vemuri Venkata Murali Krishna DW-10: Lalam Prabhakara rao DW-11: Lalam Satyavathi DW-12: Jagarapu Ramakrishna (brother of AO) DW-13: Jaddu Damodhar DW-14: A.Chandra Rao DW-15: S.V.Krishnareddy DW-16: S.Satyanarayana DW-17: K.Jyothi DW-18: J.Lalitha Kumari (wife of AO) DW-19: J. Apparao (Father of AO) DW-20: J.Ganesh (AO)
DOCUMENTS MARKED
On behalf of prosecution: Ex.P1 : Certified copy of sale deed Dt. 13.12.2000 Ex.P.2 : Relevant portion in the 161. Cr.P.C. statement of P.W.1 Ex.P.3 : Cash memo Dt.04-08-2000 along with delivery challan. Ex.P.4 : Cash bill signed by J.Lalitha Ganesh, dt.13.10.1999, Ex.P.5 : Cash bill signed by the J.Lalitha Ganesh, dt.08-07-1995, Ex.P.6 : Statement of Jagarapu Lalitha (wife of AO) Ex.P.7 : Statement of Jagarapu Lalitha (wife of AO) Ex.P.8 : Account copy-account A register along with letter dt.17.3.05 addressed by Joint Sub Registrar, VSP to Inspector, ACB (marked by consent) Ex.P.9 Copy of sale deed dt.20.3.2002 along with letter dt.28.4.2002 addressed by Joint Sub Registrar, VSP to Inspector of Police, Visakhapatnam. Ex.P10 : xerox copy of the said sale deed Dt. 31.01.2001 Ex.P11 : 161 Cr.P.C. Statement of P.W.5 Ex.P12 : 161 Cr.P.C. Statement of P.W.6 Ex.P13 : 161 Cr.P.C. Statement of P.W.7 Ex.P14 : 161 Cr.P.C. Statement of P.W.8 Ex.P15 : 161 Cr.P.C. Statement of P.W.9 Ex.P16 : Letter of the then Branch Manager, Andhra Bank, Dt. 27-04-2002 Ex.P17 : Account statement of AO. Ex.P18 : Account statement of J.Appa Rao (Father of AO) 145
Ex.P19 : Account statement of Lalam Prabhakara rao Ex.P20 : Letter issued by the then Branch Manager, Visakha Grameena Bank, Dt.19.04.2002 by furnishing statement of account of AO and Jagrapu Appa rao. Ex.P21 : Statement of account of AO of Visakha Grameena Bank, Narsipatnam, Ex.P22 : Statement of account of Jagarapu Appa rao ( xerox copies were certified). Ex.P23:Letter furnished by the then Branch manager, Andhra Bank,Narsipatnam (P.W.12) Ex.P24 : Certificate issued by the then Branch Manager, Narsipatnam (P.W.12) Ex.P.25 : Letter along with statement of account of J. Apparao issued by P.W.13 Assistant Accountant, Visakhapatnam Cooperative Bank Ltd, Visakhapatnam Ex.P.26 : Certified extract of account of J. Apparao furnished by P.W.13 Ex.P.27 : State of account of AO of ICICI Bank, Ex.P.28 : Inventory proceedings dt.9.4.2002. Ex.P.29: Made up file relating to bank papers and agreements containing (15) Ex.P.30 : Made up file relating to electricity, LIC receipts and marks lists of AO's children containing 7 sheets. Ex.P.31 : Made up file relating to RC book of Motor cycle and purchase receipts of teak wood containing 12 sheets. Ex.P.32 : Made up file relating to Debenture certificates of Lalam Prabhakara rao containing 50 sheets. Ex.P.33 : Made up file pertaining to xerox copies of income tax returns and annual property statements containing 37 sheets. Ex.P.34: Made up file relating to allegations against Sri Jagarapu Ganesh and DFO containing 15 sheets. Ex.P.35 : Made up file relating to expenditure incurred on the construction of Bargavi Plaza containing 29 sheets. Ex.P.36 : Made up file relating to purchase of gold containing 25 sheets. Ex.P.37 : Made up file pertaining to miscellaneous papers purchase receipts, GPF slips etc., containing 71 sheets. Ex.P.38 : Inventory proceedings dt.9.4.2002 at the house Lalam China Kondayya,
Ex.P.39 : Made up file relating to debenture certificates of Sri Ram investments in the names of Children of AO containing 7 sheets. Ex.P.40 : Made up file relating to blank promissory notes in different names containing 64 sheets. Ex.P.41 : Made up file relating to RC book of Indica car bearing No.AP31 U 5646 and Maruthi Car bearing No.AP32 1212 Ex.P.42 : Made up file relating to purchase bills of AC machine and others containing 7 sheets. Ex.P.43 : Made up file relating to purchase bills of building material containing (09). Ex.P.44 : Letter issued by the then Principal, Forest Rangers College, Balagat to the 146
Inspector, ACB, Visakhapatnam dt.3.5.2003. Ex.P.45 : State of account prepared by P.W.16. Ex.P.46 :Inventory proceedings dt.9.4.2002 at the residential house of AO at K.D.Peta, Road, Narsipatnam. Ex.P.47 : Made up file relating to pass book, ATM cards of ICICI Bank and other bank correspondence containing 10 sheets. Ex.P.48 : Made up file relating to sale deed document no. 677/93 and xerox copies of documents containing 24 sheets. Ex.P.49 : Made up file relating to LIC bonds and receipts containing 32 sheets. Ex.P.50 : Made up file relating to UTI certificates containing 1 to 9 sheets. Ex.P.51 : Made up filed relating to receipts of business establishments containing 100 sheets. Ex.P.52 : Made up file relating to 15 photographs of house warming ceremony. Ex.P.53 : Made up file relating to miscellaneous papers 77 sheets. Ex.P.54 : Made up file relating to HP Gas connection containing 8 sheets. Ex.P.55 : Made up file relating to Medical Bills 63 sheets. Ex.P.56 : letter dt.20.2.2003 addressed to the ACB, Visakhapatnam by P.W.18 along with IT returns filed by AO and his wife J. Lalitha Kumari for the assessment year 2000-01 to 2002-2003 Ex.P.57 : Letter dt.14.3.2005 furnished by P.w.21. Ex.P.58 : Proceedings Dt. 28.12.1998 issued by P.W.21. Ex.P.59 : Payment particulars for the beneficiaries under housing scheme. Ex.P.60 : Copy of the G.O.Ms .No.54, dt.18.7.98, Ex.P.61 : Letter Dt. 25.04.2004 furnished by the then Branch Manger, Unit Trust of India Visakhapatnam furnishing details of investments in the name of Jagarapu Sindhuja and Jagarapu Jahnavi Ex.P.62 : Letter Dt. 12.03.2004 of RTO, Anakapalli. Ex.P.63 : B-register extract of Motor vehicle stands in the name of Jagrapu Ganesh Ex.P.64 : Letter Dt.21.05.2002 by AAO Anakapalli to the Inspector, ACB, Visakhapatnam. Ex.P.65: Letter Dt. 28.08.2002by AAO Anakapalli to the Inspector, ACB, Visakhapatnam. Ex.P.66 : Letter Dt. 27.03.2004 by Chief Executive, Varun Motors to the Inspector, Ex.P.67 : Copy of letter Dt. 03.08.2002 Ex.P.68 : Statement of account in the name of J.Lalitha Kumari, W/o J.Ganesh along with letter Dt. 11.03.2004 issued by the then branch manager, Sriram Chits, NAD Branch, Visakhapatnam. Ex.P.69 : Letter Dt.04.05.2002 sent by P.W.29, Ex.P.70 : Statement of account of L.Uthara kumari furnished by P.W.29, Ex.P.71 : Copy of the ledger extract of account holder L.Uthara kumari. Ex.P.72 : Letter Dt.26.12.2003 along with statement of salary particulars of J. Ganesh, Forest Officer for the month of August and October, 1996.
147
Ex.P73 : Statement Ex.P.74 : Letter addressed by the then Branch manager, SBI, Narsipatnam, dt 02.05.02. Ex.P75 :Salary drawn particulars of AO for the period from 01-11-1995 to 31-03-06 Ex.P76 :Salary drawn particulars for the period from 01-11-1996 to 05-01-2001. Ex.P77 : Salary drawn particulars for the period from June, 2001 to June, 2002. Ex.P.78 : Document with three sheets pertaining to the transaction. Ex.P79 : Copy of the valuation report issued by P.W.32, Valuer, State Bank of India, Ex.P.80 : Copy of the extract along with letter furnished by Branch Manger, Indian Overseas Bank pertaining to Jagarapu Ramakrishna Ex.P.81 : Letter Dt. 04.08.2002 addressed to Inspector, ACB, Visakhapatnam along with copy of debenture certificate in the name of Bargavi. Ex.P.82 : Letter Dt. 10.05.2002 to the Inspector, ACB,Visakhapatnam submitting the particulars of shares held by L.Prabhakar Rao. Ex.P83 :Letter Dt. 09-04-2004 of Sri. Mruthyunjaya, Branch Manager, Sri Ram Chits, Gajuwaka Ex.P.84 :Letter Dt. 26.06.2003 issued by the then Branch Manager, Bank of India, Anakapalli to the inspector, ACB, Visakhapatnam Ex.P.85 : Loan extract in the name of J.Lalitha kumari and Appa Rao of Bank of India, Anakapalli. Ex.P.86 : B register extract of Motor Cab AP7 U 5596 in the name of Sri A.Kareemulla. Ex.P.87 : Fee particulars of J.Barghavi for the period 2001-2002. Ex.P.88 : Fee particulars of J.Sindhuja for the period 2001-2002. Ex.P.89 : Fee particulars of J.Johnavi for the period 2001-2002. Ex.P.90 : Fee particulars of J.Bhargavi for the year 2002. Ex.P.91 : Fee particulars of J.Sindhuja from UKG to 4th standard. Ex.P.92 : Fee particulars of J.Jahnavi for 2nd class to 6th class. Ex.P.93 : Prosecution sanction order against AO Vide G.O.Ms.No.13 Environment, Forest, Science and Technology Department Dt. 27.01.2006. Ex.P.94 : Original First Information Report, Ex.P.95 : Occurrence report Dt. 06.04.2002. Ex.P.96 : Proceedings of the Special Director, ACB, Hyderabad dated 04-04-2002. Ex.P.97 : Mediators report dt. 21-06-2002. Ex.P.98: Made up file containing 76 sheets relating to original registered sale deed documents of AO. Ex.P.99 : Madeup file containing 18 sheets relating to house tax receipts, cheque book, LIC bond papers and UTI receipts etc., Ex.P.100: Certified copy of the document No.3345/2000 dated 17-11-2000 . Ex-P.101: Report of D.D. Engineering dt.31.03.2003. Ex.P.102: Xerox copy of document No.1618/01. Ex.P103: Xerox copy of document No.1636/01.
148
Ex-P104: Copy of the document No. 2913/2000 regarding sale deed. Ex.P105: Copy of Gift deed bearing No.224/2001. Ex-P106: Copy of ledger extract SB A/c No. 8515. Ex-P107: Copy of ledger extract SB A/c No. 8517. Ex-P108: Copy of ledger account furnished by Bank. Ex-P109: Statement of account furnished by the bank. Ex.P110:File containing eleven xerox copies of application and eight copies of FDRs. Ex-P111:Letter of LW-75 Divisional Engineer vide Lr.No.GMTD/VM/VIG/ SURVEILLANCE/ 2002/45 dated 6-5-2002 Ex-P112:Letter No.Nil dated 12-7-2002 furnished by LW-76 Divisional Operation Manager. Ex-P113:Certified copy of the document furnished by LW-61 Sub Registrar, Elamanchili. Ex-P114: Calculations report prepared by IO (P.w.40) ( 2 pages). Ex-P115: Letter Dt.07-05-2002 issued by Accountant, Don Bosco Girls School. Ex-P116: Letter of the Branch Manager, LIC, Anakapally. Ex-P117: Letter ref No.DO/PS dated 5-04-04 of the Branch Manager, LIC,Visakhapatnam. Ex-P118: Letter No. Nil dated 25-9-2002 of the Branch Manager, LIC, Kodada . Ex-P119: Letter of the Divisional Engineer BSNL. Ex-P120: Statement of account along with the letter of LW-94 the Law Officer vide Lr.No.782/11/SF dt. 7-5-2002. Ex-P121: Letter AAO / ERO NRPM/ JAO I/ D.No. 496/02 dated 28-8-02 of LW-95 ERO, Narsimpatnam. Ex-P122: Statement of account for Rs. 3,500/- furnished by the bank in this regard. Ex.P123: Another statement of account for Rs. 2,605/- issued by the bank. Ex-P124: Letter of LW-97 the Manager, GPR Chits and Finance Dt. 12-04-2004. Ex.P125: Copy of ledger extract. Ex-P126: Ledger extract of LW-97 the Manager GPR chits and Finance Ex-P127: Ledger extract of the Manager GPR Chits and Finance . Ex-P128: Report of Motor Vehicle Inspector, Ex-P129: Letter dated 20-04-02 furnished by LW-64 the Manager, Bank of India, Anakapalle of account No. 20/148 confirming the above transaction. Ex.P.130: Letter received by P.W.40 from MRO, Rambilli, dt.25-08-2004 Ex.P131: File secured from LW32 G.Demudu ( 24 pages as aper description). Ex.P132: File secured from LW26 K.Babu rao. Ex.P133: File secured from LW40 Y.Manikyam( described as DDs No.37/103 Dt. 14.03.2003). Ex.P134: File secured from LW21 G.Sujatha (8 sheets as per description but contains more sheets). Ex.P135: File secured from LW29 Ch.Rama lakshmi (12 and 14 pages as per description for two DDs Numbers respectively).
149
Ex.P.136: letter No.136 of 2002 issued by L.W.116 namely D.Veeraswamy Ex.P.137: Letter dt.21.12.2002 issued by L.W.115 S.Rama mohan Ex.P.138 Inventory proceedings dt.9.4.2002, Ex.P.139 Made up file containing 29 sheets, Ex.P.140 Made-up file relating to house tax receipts containing 22 sheets, Ex.P.141 Made-up file relating containing pattadar pass books, Ex.P.142 Made-up file containing xerox copy of pass books seized by ACB 12 sheets. Ex.X1 Copy of G.O.Ms. No.104, 10.10.,2007 Ex.X.2 Memo issued by the government vide No.5547/FOR IV(1) 2002-9 Dt. 25.01.2008. Documents marked on behalf of Defence: Ex.D.1 : Copy of order dt.15.12.2004 of Commissioner, Income Tax Appeals. Ex.D.2 : Copy of order dt.2.12.2009 of Income Tax Appellate Tribunal. Ex.D.3 : Memo Dt.14.03.2002 showing the supply Digital Camera by the Forest department to FRO, Narsipatnam. Ex.D.4 : Letter addressed by AO to conservator of Forest through K.Biswas, DFO, Narsipatnam( 2 sheets). Ex.D.5: Letter addressed by AO to the conservator of Forest through DFO, K.Biswas (2) Ex.D.6: 9 xerox copies of applications Ex.D.7: Copy of letter Ex.D.8: Set of the said 9 xerox copies of application Ex.D9: Xerox copy of the lease agreement ( filed along with memo and it is marked subject to objection by the Spl.PP) Ex.D10: Xerox copy of lease agreement( filed along with memo and it is marked subject to objection by the Spl.PP) Ex.D11:Xerox copy of application of D.W.6, for investing Rs. 8000/- (marked subject to objection) Ex.D.12: Xerox copy of application of D.W.7, for investing Rs. 8000/- (marked subject to objection) Ex.D.13: Xerox copy of the letter given by Sriram chits( marked to subject to objection). Ex.D.14: Xerox copy of statement of one lakh chit (marked to subject to objection). Ex.D.15: Xerox copy of particulars of commission(marked to subject to objection). Ex.D.16: Original Sriram chits pass book in the name of D.W.12(filed along with memo). Ex.D17: Xerox copy of sale deed Dt. 14.08.2007. Ex.D18: Xerox copy of sale deed Dt.30.03.2005. Ex.D19: Xerox copy of sale deed Dt. 14.07.2008 Ex.D20: Copy of covering letter.
150
Ex.D21: Attested copies of annual property statements (17 sheets). Ex.D22: Authorisation given to D.W.14 by Divisional Forest Officer. Ex.D23: Salary particulars of AO. Ex.D24: Xerox copy of registration certificate(filed along with memo and marked subject to objection). Ex.D25: Attested copy A Register (Original A-Register is returned to the witness). Ex.D26: Original merit certificate issued in favour of P.W.18
Ex.D.27: Report given by S.A. Kalila, Valuer Ex.D28: Copy of the order Dt. 28.07.2006. Ex.D29: Copy of the order Dt.08.06.2006(filed along with memo). Ex.D.30 Copy of the order Dt. 02.12.2009 of Income Tax Tribunal Ex.D31: Patta Dar pass book in respect of ancestral land of 9 acres 30 cents( filed along with memo) in the name of D.W.19, Ex.D32: Copy of order passed by Commissioner of income tax appeals Dt.06.06.2006. Ex.D33:Copy of order passed by Commissioner of income tax appeals Dt.20.07.2006. Ex.D34: Copy of the order of Appellate tribunal Dt. 28.07.2006. Ex.D35: Copy of order of Appellate tribunal Dt. 02.12.2009. Ex.D36: Some of the xerox copies of cheques under which D.W.20 (AO) received compensation( 7 sheets marked subject to objection) Ex.D37:Documents (10 sheets) issued by Vinayaka Beer and Wines stores
Ex.D38: Documents (7 sheets) showing AOs working and income Ex.D39: Xerox copy of the cheque with original counter foil for deposit of cheque. Ex.D40: Computerized statement of account relating to bank account of AO in Andhra Bank Ex.D.41: Order of commissioner of income tax, Dt.09-06-2005 for the assessment year 2001-2002. Ex.D.42: Order of commissioner of income tax, Dt.21-07-2006 for the assessment year 2002-2003 Ex.D.43:Self attested copies of profit and loss account and balance sheet of (7 sheets) for the period 1995 to 2002 ( Ex.D43 is filed along with memo). Ex.D.44: Copy of letter dt.23.9.2004, Ex.D.45: Copy of letter dt.23.9.2004 to D.G., ACB, Hyderabad, Ex.D.46:Order of Commissioner of income tax Dt.08-06-2006 of my wife Ex.D.47: Original letter of LIC in this regard.
Sd/-A.V.Ravindra Babu
III Additional District and Sessions Judge -cum- Special Judge for SPE & ACB Cases //t.c.b.o// Visakhapatnam.
151 //t.c.b.o//
1
IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE
-cum-SESSIONS JUDGE, MAHILA COURT, VISAKHAPATNAM. PRESENT: - SRI A.V.RAVINDRA BABU III ADDITIONAL DISTRICT & SESSION JUDGE-cum-
SPL. JUDGE FOR SPE & ACB CASES
(FAC) VI ADDITIONAL DISTRICT JUDGE-cum-
SESSIONS JUDGE, MAHILA COURT
VISAKHAPATNAM
Wednesday, the 25 th day of February, 2015
SESSIONS CASE No.70/2011
(P.R.C.48/2010 on the file of III Metropolitan Magistrate, Visakhapatnam in
Crime No. 278/2010 of Pendurthi Police Station, Visakhapatnam City).
Name of the Complainant :State represented by the Inspector of Police, Pendurthi Police Station, Visakhapatnam City.
Name of the Accused : A.1. Avala Srinu, s/o Suryanarayana, 21 years, Kapu by caste, Auto Driver, Auto No.A.P.31 TT 4082, R/o Nandamuri Nagar, Gopalapatnam, Visakhapatnam City. A.2. Karri Ganesh, s/o Eswara Rao, 22 years, Gavara by caste, Taxi Driver, r/o D.No.1-21, Chinthala Agraharam,PendurthiMandal, Visakhapatnam City. A.3. Chintha Laxmi, w/o Satyam, 40 years, Kapu by caste, House wife, NandamuriNagar,NearL.G. Polymers,VenkatapuramPost, Visakhapatnam City. Date, time and place of Occurrence :On 8-7-2010 at Pendurthi Bus Stop
Charges :U/secs.366, 342 and 506 IPC Plea of the accused :Accused 1 to 3 pleaded not guilty.
Finding of the Court :Accused 1 to 3 are found not guilty.
Sentence or Order : In the result, A.1 is found not guilty of the charges under Section 366, 342 and 506 IPC and A.2 and A.3 are found not guilty of the charges under Section 342 and 506 IPC and they are acquitted of the same under Section 235 (1) Cr.P.C., The A.1 is ordered to be released forthwith if he is not required in any other case. The bail bonds of A.2 and A.3 shall remained in force for a period of six months U/sec.437(a) Cr.P.C. Prosecution conducted by : Sri S. Rama Murthy Naidu, Addl. Public Prosecutor Gr.I , Visakhapatnam. Accused defended by :Sri N.H. Akbar, Advocate for A.1 and A.3, Visakhapatnam. Sri K. Rajesh and Sri B. Srinivas Rao for A2.
2
This Sessions Case coming on 16-02-2015 for final hearing before me in the presence of S.Ramamurthy Naidu, Additional Public Prosecutor on behalf of the State and of Sri N.H. Akbar, Advocate appearing for accused 1 and 3 and of Sri K. Rajesh and Sri B. Srinivasa Rao, Advocates appearing for the accused No.2, and having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
This Sessions Case arises out of PRC No.48 of 2010 on the file of III
Metropolitan Magistrate, Visakhapatnam relating to Cr.No.278 of 2010 of Pendurthi
Police Station which had been committed to the Court of Sessions by virtue of a committal order dt.30-3-2011 by the learned III Metropolitan Magistrate,
Visakhapatnam and thereupon the case has been assigned Sessions Case number and made over to this Court for disposal according to law.
02.The case of the prosecution in brief as per the charge sheet is as follows:
Accused 1 and 3 are residents of Nandamuri Nagar, near L.G.Polymers,
Venkatapuram post, Visakhapatnam city. A.1 is an auto driver. A.3 is the maternal aunt of A.1. A.2 is resident of Chinthala Agraharam village, Pendurthy Mandal and he is a taxi driver. A.1 and A.2 are close associates. The offence took place at B.C.
Colony, Pendurthi in the limits of Pendurthi Police Station.
03.L.W.1 Allada Manmadharao is father of L.W.2 Allada Hima Bindu. L.W.2 is the victim girl. L.W.3 Allada Sakunthala is the mother of L.W.2. L.W.4 P.
Mariadasu is the Principal of Sophia College, Gnanapuram, Visakhapatnam. L.Ws.5 to 7 namely A. Sanyasi Rao, Sri R. Mallikharjuna Rao and Y. Govindarao are the investigating officers.
04.L.W.2 the victim girl is resident of B.C. Colony, Pendurthi and is minor.
She is studying II year Intermediate in Sophia Junior College, Gnanapuram,
Visakhapatnam. She daily used to go to school by city bus from Pendurthi junction to
Gnanapuram. The accused No.1, auto driver trapped her and induced her by dropping her at college in his auto and got acquaintance with the victim girl L.W.2.
Later A.1 used to tell her that he would marry her and threatened her that if she did not marry him, he would kill her parents. The victim girl was so much perturbed.
On 8.7.2010 A.1 abducted victim girl to RTC complex in his auto and from there to
Hyderabad by bus. A.1 kept the victim girl (L.W.2) at his relatives house in 3
Hyderabad for some period and later A.1 took a house and kept L.W.2 the victim girl in that house. A.2 friend of A.1 also came to Hyderabad and joined with A.1. Both
A.1 and A.2 confined the victim girl in the room and they did not allow her even to talk with her parents and harassed both physically and mentally. On one day A.1 threatened and tied yellow thread around her neck saying that he married her and took advances for illicit intercourse with L.W.2 but the victim girl resisted him by threatening that she would commit suicide if he takes any sexual advances. Later on 31.7.2010 A.1 brought the victim girl to Visakhapatnam took her to his maternal aunt's house (A.3's house) at Nandamuri Nagar near Polymers company and confined in a room. A.3 kept both A.1 and the victim girl L.W.2 in a room. However, the victim girl deftly escaped from there and reached her parents house on 1.8.2010 and narrated everything to her parents. On 2.8.2010 the victim girl came to Pendurthi
Police Station and gave report against the accused for taking action. L.W.1 the father of victim girl L.W.2 gave a report at Pendurthi Police Station on 11.7.2010 about missing of his daughter L.W.2. Basing on this report L.W.5 A.S.I., of Police registered a case in CR.No.278 of 2010 under girl missing on 11.7.2010 and investigated into.
L.W.5 examined the witnesses L.Ws.1, 3 and 4 and recorded their detailed statements. On 2.8.2010 the victim girl L.W.2 accompanied by her father L.W.1 turned up at Pendurthi Police Station and lodged a report against A.1 to A.3 basing on which L.W.6 altered the Section of law from girl missing to Section 366-A, 342 and 506 r/w 34 IPC in Cr.NO.278 of 2010 on 2.8.2010 and took up investigation.
L.W.6 examined L.Ws.1 to 3 and recorded their statements and arrested A.1 to A.3 on 4.8.2010 at Vepagunta junction and sent them to the concerned Court for judicial custody. L.W.7 Inspector of Police, successor of L.W.6, filed charge sheet. A.1 is liable to be punished under Section 366-A, 342 and 506 IPC for inducing L.W.2 a minor girl by threatening her to kill her parents and abducted to Hyderabad and confined in a room. Further A.1 to A.3 are liable to be punished under Section 342, 506 r/w 34 IPC for wrongfully confining L.W.1 and threatening her with dire consequences. Hence, the charge sheet.
05.On filing of the charge sheet the learned III Metropolitan Magistrate, taken cognizance against the accused under Section 366-A, 342 and 506 r/w 34 IPC 4 and issued summons to them. On appearance of them the learned III Metropolitan
Magistrate after complying the provisions under Section 208 Cr.P.C. and by virtue of
a committal order dt.30-3-2011 committed the case to the Court of sessions.
06.On receiving the sessions case records in this Court from the Court of
sessions, the summons are issued to the the accused 1 to 3. Originally the Regular
Officer of the Court on hearing both sides framed charges under Section 366A IPC against A.1 and 342 and 506 IPC against A.1 to A.3 and explained the same to them in Telugu for which they pleaded not guilty and claimed to be tried. Subsequently the Regular Officer as per the orders in Crl.M.P.No.275 of 2013, dt.12.7.2013 deleted the said charges and re-casted the charges against accused. He framed charges Under Section 366 IPC against A.1, 342 IPC against A.1 and A.2, 342 against A.1 and A.3 and 506 IPC against A.1 and A.2 and further 506 IPC against A.1 and A.3. To the altered charges the accused denied the same pleaded not guilty and claimed to be tried.
07.According to the record, during the course of trial as A.1 absconded from bail before the Court a Non Bailable Warrant was issued against him by the
Regular Officer and he was produced on PT Warrant and A.1 has been in Judicial custody in central prison during the course of trial. The docket reveals that on 20-2-2013 A1 was produced on PT Warrant.
08.During the course of trial on behalf of the prosecution P.Ws.1 to 7 are examined and EX.P.1 to P.5 are marked. After closure of the evidence of the prosecution, A.1 to A.3 are examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing in the evidence let in by the prosecution for which A.1 denied the incriminating circumstances and stated that he is filing written statement and that he has defence witnesses. A.2 stated that he has no defence witnesses and that he do not know anything except that he was taken to police station on arrest and he was sent to prison and that he has nothing to say. During 313 Cr.P.C. Examination A.3 stated that she has no defence witnesses and that she do not know anything except that she was taken to Police station and from there to the Court and that she has nothing to say.
09.A.1 got filed a written statement and the contents of the written 5 statement of A.1 in brief is that P.W.3 A. Hima Bindu prior to 8.7.2010 has attained the majority as such both i.e., P.W.3 and A.1 got their marriage at Sri Subrahmanya
Swamy Temple, Visakhapatnam and during their wedlock P.W.3 Hima Bindu gave birth to a female child on 7.9.2011 at Visakha GYA and OBS Hospital, Pendurthi village, Visakhapatnam. The delivery was conducted by Dr. G.V.D.J. Akhileswari of the said hospital. During cross examination of P.W.3 Ex.D.1 to D.5 are marked.
Ex.D.1 is showing the photographs regarding the marriage of P.W.3 with A.1. Ex.D.2 shows the marriage of P.W.3 with A.1 and the presence of some others. Ex.D.3 shows the marriage of P.W.3 with A.1 and the presence of purohits and some others.
Ex.D.4 is the original Voter I.D. Card of P.W.3 issued by the Election Commission of
India. Ex.D.5 is the Bank Pass book of P.W.3 at State Bank of Hyderabad,
Kancharapalem, Visakhapatnam. The Court may consider Ex.D.1 to D.5. A.1 was illegally detained by P.W.6 the S.I., of Police, Law and Order, Pendurthi Police Station from 2.8.2010 to 4.8.2010 in the police station. On 4.8.2010 he along with others were produced before the III Metropolitan Magistrate Court and they were remanded to judicial custody. The prosecution has failed to produce any authenticated document from any government authority to show the date of birth of P.W.3 . The
Investigating Officer failed to send P.W.3 A. Hima Bindu for ossification test to determine the age of P.W.3 as on 8.7.2010. P.W.3 attained majority prior to 8.7.2010 and she voluntarily without coercion and undue influence and fraud, married A.1 and during their wedlock she and A.1 were blessed with a female child on 7.9.2011 and she was named as Avala Yerni Deepika Sravanthi Devi and the same was incorporated in Aadhar card bearing No.1027/10592/01417, dt.4.2.2012. The criminal threats were made by the parents of P.W.3 i.e., P.W.1 and 2 and they illegally detained the girl born on 7.9.2011 during the wedlock of A.1 and P.W.3 with them. P.W.3 deposed evidence before this Court under criminal threats and coercion.
The evidence spoken by P.W.3 is not voluntarily. If P.W.3 brought her daughter namely Avala Yerni Deepika Sravanthi Devi before the Court, the truth would have come out. The Investigating Officers i.e., P.W.6 and 7 got knowledge of the factum of marriage of 1st accused and their blessing with a female child on 7.9.2011. They did not conduct further investigation from 4.8.2010 to 18.10.2010 i.e., the date of filing 6 of charge sheet except recording the statements on 11.7.2010 and 2.8.2010. They failed to collect proper evidence. The accused is taking steps to adduce defence evidence by examining the defence witnesses namely (1) Dr. G.V.D.J. Akhileswari
Gynecologist, Pendurthi, (2) Smt. K.Nagambika, incharge of Anganwadi situated at
Ward No.66, Nandamuri nagar and (3) Smt. Shaik Madeena. He is also taking steps to recall P.W.3 to secure her presence before the Court at the time of examination of the defence witnesses.
10.During the course of defence evidence on behalf of the first accused
D.Ws.1 to 7 are examined and Ex.D.6 to D.15 are marked. ExD1 to Ex.D3 are marked during cross examination of PW.1. Ex.D4 and Ex.D5 are marked during cross examination of PW.3.
11.Heard both sides.
12.Now in deciding the respective charges framed against the accused
Nos.1 to 3 the points that arise for consideration are as follows:
1. Whether the prosecution has proved beyond reasonable doubt that the accused No.1 kidnapped or abducted the victim girl namely Avala Hima
Bindu (P.W.3) with knowledge or intention that she may be compelled to marry any person against her will or that she may be forced to illicit intercourse in the manner as alleged by the prosecution?
2. Whether the prosecution has proved beyond reasonable doubt that all the accused 1 to 3 wrongfully confined P.W.3 in the manner as alleged by the prosecution?
3. Whether the prosecution has proved beyond reasonable doubt that all the accused criminally intimidated P.W.3 the victim in the manner as alleged by the prosecution?
4. Whether the prosecution has proved the charges framed against the respective accused beyond reasonable doubt.
13. Points:
The learned Additional Public Prosecutor during the course of arguments putforth the case of the prosecution as per the charge sheet and contended that
P.W.3 was absolutely a minor girl at the time of offence in question and that the 7 contention of the accused that she was major is not at all tenable. P.W.3 is the victim and P.W.1 is the father of the victim and P.W.2 is the step mother of the victim. They supported the case of the prosecution. As P.W.3 was found missing initially a report was lodged by P.W.2 and the police registered the same as girl missing. Subsequently when P.W.3 came back and narrated the events to her parents about the offence committed by the accused they taken her to the police station where she lodged another report. Hence, the section of law was altered.
P.W.1 and P.W.2 the parents of P.W.3 supported the case of the prosecution. Further
P.W.3 the victim fully supported the case of the prosecution by deposing against A.1 and A.3 and she omitted to speak about A.2 as she could not identify him and however her evidence is quite convincing. There is consistency in the evidence of
P.Ws.2 and 3. It is a case where A.1 kidnapped a minor girl and detained her at
Hyderabad for about 20 days and thereafter brought back her to Visakhapatnam and further detained her in the house of A.3 and ultimately P.W.3 freed herself from the clutches of the accused and reached to her parents house. P.W.5 to 7 the investigating officers supported the case of the prosecution. Therefore, the investigation conducted by the investigating officers is also proper. The prosecution filed Ex.P.5 the S.S.C certificate of P.W.3 to show that she was a minor at the time of offence in question and it can be relied upon by the Court. The contention of the accused 1 that P.W.3 was a major and that P.W.3 voluntarily gone away with A.1 is not at all tenable. P.W.3 narrated as to how she was kidnapped by the 1st accused and as to how she was detained at Hyderabad and later at Visakhapatnam and as to how A.3 also participated in the commission of offence. The evidence adduced by the prosecution is fully convincing. The accused in support of his defence examined several witnesses and got marked several documents and he failed to probablise his defence in any way. According to the defence of first accused he and P.W.3 married with each other and P.W.3 was a major through out and that the accused is relying on several so called photographs relating to the so called marriage. Ex.D.1 to D.3 are the so called photographs and it is difficult to say by just looking into the same that a marriage was performed between P.W.3 and A.1 in accordance with Hindu ceremonies and customs etc., The accused examined D.Ws.5 to 7 the so called 8 purohits in a temple and the answers spoken by them in cross examination goes to show that their evidence is not at all convincing. One can not say by just looking into Ex.D.1 to D.3 that the female and male are of A.1 and P.W.3. The evidence of
D.Ws.1 to 7 and Ex.D.1 to D.15 are of no use to the case of the defence. It is also the contention of the 1st accused that he and P.W.3 resided together after the marriage and they gave birth to a female child. The accused examined D.W.1 the so called doctor who attended at the time of delivery of P.W.3 and according to the answers spoken by her in cross examination she treated several patients by name
Hima Bindu and when such is the situation her evidence that she conducted delivery to P.W.3 and that she was brought by her husband Avala Srinu etc., is not convincing. There is no link in the evidence that the person to whom D.W.1 provided medical aid for giving birth to a child and PW.3 are one and same. The accused 1 is also relying on the evidence of D.W.2 to show that after delivery certain nutritions was given to baby of P.W.3 and the accused got marked several documents during the evidence of D.W.2 and they are nothing but fabricated documents and there are clear over writings there in. The evidence of D.W.3 who is said to have let out a house to A.1 and P.W.3 is not convincing. The evidence of D.W.4 the so called
Health Assistance regarding the attested copy of birth entry relating to a female baby by Avala Hima Bindu is of no use to the case of the defence. The accused did not explain as to where the so called baby born to P.W.3 and A1 is residing. There is no merit in the contention of the defence in this regard. The evidence let in by A.1 by examining D.Ws.1 to 7 and got marking EX.D.1 to D.15 is of no use to the case of the defence and they have nothing to do with the case of the prosecution. He further argued that nothing is elicited from the cross examination of the prosecution witnesses to disbelieve their testimony and that the evidence on record goes to show that A.1 kidnapped P.W.3 by threatening to kill her parents if she did not follow her and confined her at Hyderabad for about 20 days with help of A2 and further at
Visakhapatnam A.3 also played some role at Visakhapatnam and that the evidence adduced by the prosecution is convincing and that it would establish the charges framed against the accused and that the accused are liable to be convicted. He further contended that the learned defence counsel is enclosing several citations to 9 the written arguments and that they are not applicable to the present case on hand.
14.The counsel for A.1 and A.3 filed his written arguments. The learned counsel for A.1 and A.3 in his written arguments putforth the case of the prosecution and about the charges framed against the accused and about the witnesses examined by the prosecution as well as the defence. He contended in substance that
P.W.3 was major as per the defence of the accused 1 and that she voluntarily went away with A.1 on 8.7.2010 itself and spent some time at Hyderabad and later came to Visakhapatnam and that at the instigation of her parents she lodged Ex.P.2 falsely.
Even prior to that the marriage of P.W.1 and A.1 was performed. Ex.D.1, D.2 and
D.3 shows marriage of P.W.3 with A.1 and they further shows the presence of purohits and others. Ex.D.4 is the original ID card of P.W.3 issued by the Election
Commission of India. D.W.1 is the doctor and she conducted delivery to P.W.3 on 7.9.2011. P.W.3 was blessed with a female baby and in support of his contention he relied on EX.D.6. D.W.4 the Health Assistant in GVMC produced the attested copy of the entries in birth and death register in which it was shown that P.W.3 and A.1 were the parents of the baby by name Avala Yerni Deepika Sravanthi Devi. He further relied on the evidence of D.W.2 and contended that after P.W.3 gave birth to a female child certain medicines and nourishment was given to her and it is spoken by D.W.2 and through D.W.2 several documents are marked. In support of his contention he relied on Ex.D.8, D.9 and D10. Relying on the evidence of D.W.3 he further argued that according to the evidence of D.W.3, P.W.3 and A.1 who were the wife and husband along with their female baby stayed as tenants in their house for a period of two or three months. It is the parents of the P.W.3 who under the criminal threat and coercion detained the female baby with them and P.W.3 is forced to give false evidence before the Court. The victim P.W.3 in cross examination categorically admitted the marriage photographs which was marked as EX.D.1 to D.3. The marriage was performed at Sri Subrahmanya Swamy Temple, Near Urvasi Theatre,
Kancharapalem. The evidence of P.W.3 has corroboration from the defence evidence.
The accused examined the purohits i.e., D.Ws.5 to 7 who spoken about the said photographs. In fact P.W.3 went along with 1st accused on 8.7.2010 and stayed at
Hyderabad in a rented house and she returned on 31.7.2010 and went away to her 10 parental house on 1.8.2010 and made Ex.P.2 report on 2.8.2010. Subsequently she came back to the 1st accused house and lived there till 20-12-2012 and in the mean while she gave birth to a female baby on 7.9.2011 in Visakha Gynic Hospital,
Pendurthi. In support of his contention he relied on the evidence of D.W.1. A.1 was arrested in NDPS case vide Cr.No.193/2012 of S.H.O., V. Madugula, Visakhapatnam
District and that P.W.3 went to Central Prison, Visakhapatnam as wife of the 1st accused and made an interview with the 1st accused. Subsequently P.W.3 left the joint family house of 1st accused on 20-12-2012 and joined with her parental house along with their newly born baby. When there is no cordial relationship in between the 1st accused and P.W.3, P.W.3 deposed false at the instance of their parents. From 8.7.2010 to 31-7-2010 P.W.1 did not make any efforts to pass a message to her parents or to the police or to the friends about the alleged threats made by 1st accused. She admitted the same in her cross examination. She keep quite when she and 1st accused resided at Hyderabad for a period of 23 days. All the circumstances shows that she voluntarily went along with A.1 and prior to that P.W.3 and A.1 were married at Sri Subrahmanya Swamy temple, near Urvasi Theatre, Kancharapalem,
Visakhapatnam. P.W.3 admitted that after she lodged Ex.P.2 she was not referred to the hospital for age determination or conjugal life. She did not make such request
before the police. The prosecution has failed to prove that she was minor on the
date of commission of offence i.e., 8.7.2010. When P.W.3 was living with joint family of 1st accused she obtained Election Identity Card, issued by Election
Commission of India and Ex.D.5 bank pass book at State bank of Hyderabad,
Kancharapalem Branch, Visakhapatnam, which shows she lived along with 1st accused jointly and under compelling circumstances she is deposing false. The question of wrongly confining P.W.3 by A.1 and A.3 does not arise as she completed 20 years of age at the time of commission of offence. According to the defence of accused 1 P.W.3 married the 1st accused prior to 8.7.2010 at Sri Subrahmanya
Swamy Temple, Urvasi Theatre, and she voluntarily went away with 1st accused. The entries in Ex.P.5 are not correct. According to P.W.1, P.W.3 was born at the parental house of first wife of P.W.1 at Jaggayyapeta, Vizianagaram District. She was born in the parental house of deceased mother of P.W.3 and it was not incorporated in the 11 panchayat office. There is no authenticated document to prove the date of birth mentioned in Ex.P.5. The prosecution did not seek any medical test like ossification to determine the age of P.W.3. The investigation done by P.W.6 and 7 is not proper.
They did not conduct any investigation at all. The police simply examined P.Ws.1 to 3 and filed charge sheet. The S.S.C certificate is not sufficient to determine the date of birth of P.W.3. It has not been proved by the prosecution. In support of such contentions he filed copies of decisions in (1) 2012 Crl.L.J. 910; (2) 2011 (1)
ALD (Crl.) 711 (SC); (3) 2011 Cri.L.J.4996; (4) 1997 Cri.L.J. 1313; (5) 1988 Cri.L.J. 565; (6) 2014 Cri.L.J. 4493; (7) 2012 (1) ALD (Crl.) 61 (AP); (8) 2011 (2) ALD (Crl.) 593 (SC); (9) 2011 Cri.L.J. 4589; (10) 2013 Crl.L.J.
446; (11) 2011 Cri.L.J. 2565; (12) 2011 Cri.L.J.494; (13) 2007 Cri.L.J.
1204; (14) AIR 2006 Supreme Court 2461 and (15) 2000 Cri.L.J. 1221.
15.The learned counsel for A.2 filed memo adopting the written arguments filed on behalf of A.1 and A.3.
16.Coming to the evidence adduced by the prosecution, P.W.1 is the father of the victim, P.W.2 is the step mother of the victim and P.W.3 is no other than the victim. P.W.4 was the Principal of Sophia Junior College, Gnanapuram,
Visakhapatnam in which P.W.3 studied. He is cited by the prosecution to speak that on 8.7.2010 P.W.3 did not attend the college. P.W.5 is then A.S.I., of Pendurthi Police
Station who registered the case under girl missing basing on Ex.P.1 report and to speak about his examination of the parents of P.W.3. P.W.6 is the then Sub
Inspector of Police, who conducted investigation i.e., receipt of Ex.P.2 from P.W.3 and investigation thereafter. P.W.7 is another instigating officer who succeeded to P.W.6 and verified the investigation done by the earlier investigating Officers and filed charge sheet.
17.Now I would like to refer here the substance of the evidence adduced by the prosecution. According to P.W.1 on 8.7.2010 his daughter Hima Bindu went to college and did not return back. They searched for her but in vain. Then he and his wife went to Pendurthi Police Station and his wife lodged report with police. Police examined him and his wife and recorded their statements. 20 days thereafter his daughter returned back to his house and told that Avala Srinu (A.1) taken her to 12
Hyderabad forcibly by threat in the auto and thereafter boarded in Volvo bus and thereafter at Hyderabad harassed her. Then they went to Police station with Hima
Bindu where Hima Bindu gave a statement before police.
18.P.W.2 the step mother of the victim deposed that on 8.7.2010 their daughter Hima Bindu went to college and did not return back. They enquired about
Hima Bindu by going to the college with her friends and their known people by telephone but in vain. On 11.7.2010 they went to Police Station. She and P.W.1 went to Pendurthi Police Station where police recorded their statement on narration.
Ex.P.1 is the report given by her on 11.7.2010 for missing of her daughter i.e., Hima
Bindu. 20 days after the report which is on 2-8-2010 their daughter Hima Bindu returned back to the house and when she asked about her missing, she told that A.1 threatened her to kill her brother and father if she did not come with him and due to fear she went along with him and A.1 taken her to Hyderabad. A.1 kept her daughter in a room by threatening for a period of 20 days. Later he (A1) came to
Visakahpatnam along with her daughter and kept in the house of Chinthada Lakshmi (A.3). A.1 and A.3 threatened her daughter to kill if she inform the same to any other or come out of the house. In one way or the other her daughter came out and reached their house and revealed the incident.
19.Turning to the evidence of P.W.3 who is no other than the victim, her evidence in substance is that she studied intermediate in Sophia Junior College at
Gnanapuram in 2009 and 2010. She used to attend the college and came back in
RTC buses by availing student bus pass and that she know Avala Srinu (A.1).
While she was studying Intermediate and waiting at bus stop for RTC bus, A.1 used to come in an auto and asked her to board the auto. When she refused to board the auto, he (A.1) used to make galata on the road. Then due to fear, she boarded the auto brought by A.1. In the same way she boarded the auto brought by A.1 in 15 occasions. She further deposed that on 8.7.2010 at about 8.00 a.m., when she was waiting for RTC bus, A.1 came with auto and made a galata to board the auto. Then she boarded the auto and A.1 taken her to Rushikonda area and kept her till 6.00 p.m., at that place. A.1 threatened her to kill his father, mother and brother if she do not accompany him. Then due to fear when she was weeping, A.1 taken her to RTC 13 complex of Visakhapatnam and taken her to Hyderabad in a private bus. At
Hyderabad A.1 kept her in a room and the particulars of that room including place and area, she do not know. A.1 used to abuse her and beat her to agree for marriage and if not he will kill her father, mother and brother. A.1 kept her in that room with such harassment and also cut her hand with a blade, for a period of 20 days. One person also assisted A.1 at Hyderabad but she can not identify that person. She can not identify if that person is present in the Court hall or not. A.1 used to threaten her for marriage and attempt to enjoy her. On 31-7-2010 A.1 brought her to Vizag from Hyderabad. A.1 taken her to his aunt's house who is present in the court hall and her name is Chintha Lakshmi. Witness identified A.3 as
Chintha Lakshmi. A.3 also threatened her stating that once Thali was tied around her neck by A.1, no more option except to live with A.1 and by saying so A.3 kept her and A.1 in a room by the side of her house at Visakhapatnam. A.3 also abused and beaten her. A.3 kept her(PW.3) and A.1 in that room till the evening of 1.8.2010.
She further deposed that on the same day evening she escaped from that room and reached her parents house on the next day early hours. She narrated all the things to her parents. By 8.00 a.m., they went to the Police Station and gave report. Ex.P.2 is the report given by her.
20.As this Court already pointed P.W.4 is examined to speak that P.W.3 remained absent on 8.7.2010 and he deposed about the same. P.W.5 spoken about the receipt of the report from P.W.2 and that he registered the same as Ex.P.3 FIR under girl missing and he examined and recorded the statements of P.Ws.1 and 2.
Coming to the evidence of P.W.6 according to him on 2.8.2010 Allada Hima Bindu (P.W.3) came to the police station and presented a report which is Ex.P.2 and basing on Ex.P.2 he altered the Section of law from girl missing to 366-A, 342, 506 r/w 34
IPC and issued altered FIR. Ex.P.4 is the altered FIR. He examined and recorded the statements of P.W.3 and her parents P.W.1 and 2. On 4.8.2010 he arrested A.1 to
A.3 and sent them to judicial custody. According to P.W.7 on 18-10-2010 he took up investigation. He verified the investigation done by their S.I., and A.S.I., and he filed charge sheet.
21.Before going to appreciate the case of the prosecution firstly, I would 14 like to refer here the substance of the case of the prosecution in the light of the reports lodged by P.W.2 as well as P.W.3. P.W.2 lodged Ex.P.1 with police which is to the effect that her daughter Hima Bindu, aged 17 years was studying 2nd year
Intermediate in Sophia Junior College and on 8.7.2010 at about 8.00 a.m,. she went to College and at 12.00 noon she did not come back and when she approached the
Principal she was informed that she did not attend the college and where abouts of
her daughter are not known. This is the substance of the report of P.W.2 under
Ex.P.1.
22.Turning to the Ex.P.2 report lodged by the victim (P.W.3) herself on 2.8.2010 it is to the effect that she was studying 2nd year Intermediate in Sophia
Junior College, Ganapuram. Every day she used to start at Pendurthi junction to go to college. On one day when she was at Pendurthi junction for catching a bus, an auto bearing No. AP 31 TT 8042 came there and the auto person introduced himself with her and asked her to board the auto to take her to college and he revealed the name as Avala Srinu. Subsequently every time he used to take her to the college in the auto and he threatened her to marry him by telling false stories and he also threatened to kill her parents and younger brother if she refused to marry him. She felt afraid of and she joined with him on 8.7.2010 in the auto and went to RTC bus stand in the evening and from there A.1 with force made her to board a Volvo bus and taken her to Hyderabad and kept her in his relatives house and thereafter he taken another house and confined her and caused harassment to her and after that
A.2 came there and abused her and asked her not to make any phones to her parents and harassed her mentally and A.1 threatened her and stated that he would tie thali in her neck and then the parents of victim can not do anything against him and while saying so he tied a yellow thread around her neck and also made an attempt to enjoy her sexually and she resisted his attempt by saying that she will die and she was not provided with phones etc. A.2 used to assist A.1 at Hyderabad. On 30-7-2010 A.1 brought her to Visakhapatnam and dropped her on 31.7.2010 at
Visakhapatnam and taken her to her aunts house and with the help of her A.1 subjected her to all sufferings and his aunt kept A.1 and victim in a house and locked the house but she (P.W.3) intelligently freed herself and reached to her 15 parents on 1.8.2010 and revealed the facts to her parents. This is the substance of the allegations in Ex.P.2 report lodged by P.W.3.
23.P.Ws.1 and 2 are not the direct witnesses to the occurrence. They claimed to have knowledge of the incidents through P.W.3 only. As this Court already pointed out the crucial aspects in the evidence of P.W.3 is that, she studied intermediate at Sophia Junior College, Gnanapuram in the year 2009-10. She used to attend the college and came back in RTC buses by availing student bus pass. She know Avala Srinu and while she was studying intermediate and waiting at bus stop for RTC bus A.1 used to come in an auto and asked her to board the auto and when she refused to board the auto, A.1 used to make galata on the road and then due to fear she boarded the auto brought by A.1 and in the same way she boarded the auto in 15 occasions. Coming to the incident in question her further evidence is that on 8.7.2010 at about 8.00 a.m,. when she was waiting for RTC bus, A.1 came there with auto and made galata and then she boarded the auto where A.1 taken her to
Rushikonda area and kept her till 6.00 p.m., and A.1 threatened to kill her father, mother and brother if she do not accompany him. Then due to fear when she was weeping A.1 taken her to RTC complex of Visakhapatnam and taken her to
Hyderabad in a private bus. At Hyderabad A.1 kept her in a room and particulars of that room she do not know. He used to abuse her and beat her to agree for marriage and if not he will kill her father, mother and brother. A.1 kept in that room with such harassment and also cut her hand with a blade for a period of 20 days.
One person also assisted A.1 at Hyderabad but she can not identify that person. She can not identify if that person was present in the Court hall or not. A.1 used to threaten her for marriage and attempted to enjoy her. On 30.7.2010 A.1 brought her to Vizag from Hyderabad. A.1 taken her to his aunt's house who is present in the
Court hall. Witness identified A.3 as Chintha Lakshmi. A.3 also threatened her stating that once Thali was tied around her neck by A.1, no more option except to live with A.1 and by saying so A.3 kept her and A.1 in a room by the side of her house at Venkatapuram. A.3 also abused and beaten her. A.3 kept her and A.1 in that room till the evening of 1.8.2010. On the same day evening she escaped from that room and reached to his parents house on the next day early hours. She 16 narrated the things to her parents. By 8.00 a.m., they went to the police station and gave report. Ex.P.2 is the report given by her.
24.Here, I would like to make it clear that P.W.3 never deposed in her evidence in chief examination that either at Hyderabad or at Visakhapatnam A.1 tied any yellow thread to her neck. In other words, though such a whisper regarding tying of thali at Hyderabad is mentioned in Ex.P.2 but P.W.3 omitted to speak so. It is not her evidence in chief examination that A.1 tied thali around her neck at
Hyderabad. Now it is essential to look into certain crucial answers spoken by P.Ws.1 to 3 during cross examination.
25.Coming to the cross examination of PW.1, he deposed that Hima Bindu again went away from the house after six months later approximately. The photos shown to him are the marriage photos with garlands of Himabindu and A.1 and it is
Ex.D.1. Here, I would like to make it clear that my Predecessor ruled out an objection taken by Additional Public Prosecutor to mark Ex.D.1 on the ground that they are the digital photographs and digital CD is also being filed. Ex.D.1 is 10 photos in number. He denied a suggestion that the persons present in the photos shown to him are the persons known by themselves and accused people. He admitted that according to the photographs her daughter Hima Bindu and A.1 are having garlands. It is true that those photos shows that the marriage of A.1 and
Hima Bindu was performed by a purohit. Ex.D.2 is the 3 photos (Digital). He further deposed in cross examination the four other photos shows that the marriage was performed by following Hindu caste customs and rites. Ex.D.3 is the said four digital photographs. He denied a suggestion in cross examination that 18.2.2011 the marriage of their daughter Hima Bindu and A.1 was performed and Ex.D.1 to D.3 photos with CD are relating to that marriage. He do not know whether by 18.2.2011 the age of Hima Bindu was 20 years as per date of birth found in S.S.C. Marks list.
He denied a suggestion that by 8.7.2010 when Hima Bindu left the house for the first time, her age was 19 years. He denied that they also furnished the date of birth
before the convent with less age than her actual date of birth. He furnished date of
birth certificate of Hima Bindu to the police but his statement is silent about furnishing of that certificate. He denied that no such birth certificate was furnished to 17 the police. He do not know what things went on between Hima Bindu and A.1 after his daughter left the house personally. He do not know whether a daughter was born out of the conjugal life of A.1 and Hima Bindu. He denied that Hima Bindu is staying in his house along with a female baby. He denied that Hima Bindu became major and on her own accord she went with A.1 and married and out of their wedlock a female child was born to Hima Bindu. About six months back from to day i.e., 31.7.2013, Hima Bindu came to his house lastly and is residing in his house. He denied that as A.1 happened to be in jail in another case, Hima Bindu is staying in his house and that A.1 and Hima Bindu lead conjugal life happily and they are willing to continue and that as it is a inter caste marriage, they (parents of PW.3) are not willing for their marriage.
26.Coming to the evidence of P.W.2 the step mother of P.W.3 she deposed in cross examination that she do not know about the birth place and date of birth of
Hima Bindu. Her daughter returned back to the house on 2.8.2010 alone. After returning back to the house she continued in their house without leaving the house.
She denied a suggestion that her daughter Hima Bindu again left the house after 2.8.2010 and a marriage was performed between A.1 and Hima Bindu on 18.2.2011 in the presence of known persons of both family. She denied a suggestion that Hima
Bindu arranged bag with dresses in advance and that while she(PW.2) was in bath room on the night on one day night she(PW.3) went away with that bag and later married A.1. She denied that her daughter stayed with A.1 with other joint family members till he was arrested in an excise case on 20.12.2012 and since then her daughter had been staying in her house. She denied a suggestion that since 20-12- 2012 they wrongfully confined their daughter Hima Bindu without allowing her to go with A.1 for marital life. She denied that her daughter given birth to a female baby on 7.9.2011 in Akilandeswari Hospital at Pendurthi, Visakhapatnam. She denied that prior to 8.7.2010 Hima Bindu attained majority and she voluntarily left the house and married A.1.
27.Here I would like to make it clear that it is the evidence of P.W.1 that six months after 2.8.2010 also Hima Bindu again left the house. It is categorically stated by P.W.1 during cross examination. He further categorically deposed in cross 18 examination that just six months prior to his giving evidence only Hima Bindu again returned back and again started living his house. When such is the evidence of P.W.1 spoken in his cross examination admitting after 2.8.2010 after six months she again left the house and later came back just six months prior to the evidence of P.W.1 the evidence of P.W.2 the step mother of P.W.3 as if after 2.8.2010 Hima Bindu never left the house is not at all convincing. It is not the case of the prosecution that P.W.1 in cross examination purposefully deposed any answers falsely. Considering the circumstances, I am of the considered view that P.W.2 is not revealing truth in so far as leaving P.W.3 from the house of P.Ws.1 and PW.2 again six months after 2.8.2010. It is quite evident from the answers spoken by P.Ws.1 and P.W.2. Here is a case that in photographs under Ex.D.1 to D.3, A.1 and P.W.3 were found performing some Hindu ceremonies, rites and customs. Here is a case that P.W.1 admitted that the said Ex.D.1 to D.3 shows the marriage between P.W.3 and A.1.
Here P.W.2 is denying the marriage between P.W.3 and A.1. Now it is pertinent to look into the answers spoken by P.W.3 during cross examination.
28.As this Court already pointed out what P.W.3 narrated in Ex.P.2 is that at
Hyderabad A.1 tied yellow thread around her neck. As this Court already pointed out she omitted to speak out the same in her chief examination. There is no dispute that
Ex.D.1 to D.3 photographs shows the photos of P.W.3 and A.1. Now turning to the evidence of P.W.3 in cross examination she deposed regarding the photographs that the photos of herself and Avala Srinu (A.1) are found in Ex.D.1. Those are the photos for the marriage of herself and A.1. In the said photos she, A.1 and some other persons were found. She herself, A.1, purohit and others are found in Ex.D.3 photo. Ex.D.1 to D.3 were taken prior to 31.7.2010. So P.W.3 categorically admitted the marriage between herself and A.1. Her evidence negatives the evidence of
P.W.2 in cross examination that there is no marriage between P.W.3 and A.1. She deposed in cross examination that her photo is found in Election Commission of India
Identity Card which is shown to her. Ex.D.4 is the original identity card. In the said
Ex.D.4 document the residential address is shown as as door number 7-101 in
Venkatapuram. She denied a suggestion that she gave birth to Avala Yerni Deepika
Sravanthi Devi on 7.9.2011 in Akhilandeswari Hospital at Pendurthy. She denied a 19 suggestion that at the time of delivery of the baby in that hospital, her parents and the parents of A.1 came to that hospital. She denied that while she was pregnant and staying with A.1 and his parents in a house situated at Nandamurinagar,
Gopalapatnam, they approached an Anganwadi Teacher namely Nagambika and taken medical checkup card who used to provide medicines to her. She denied that
Government Aya namely Babadaru Kanthamma used to provide Egg, Milk, Dall and
Oil to her as she was pregnant. She denied that she was with A.1 and his parents in
Nandamurinagar, Gopalapatnam. She denied that to day her father i.e., P.W.1 and her mother and her mothers brother came to the Court along with her. She denied that due to the fear of her father and relatives she was forcibly retained in her parents house and she is deposing false. The bank pass book shown to her is of her with photo. Ex.D.5 is the said pass book in her name in S.B.H., Kancharapalem
Branch. She denied a suggestion that after returned back to her parents house and after 2.8.2010, she left the house by bolting the door out side the bath room while her mother was bathing and went away with clothes and stayed with A.1 till 20.12.2012.
29.Here, I would like to make it clear it is categorical admission of P.W.1 during cross examination that after 2.8.2010 also P.W.3 left the house and came back only just six months prior to his examination. The denial of P.W.2 in this regard is not convincing. In that view of the matter the denial made by P.W.2 in cross examination as if she did not leave the house after 2.8.2010 is not at all convincing.
It is to be noticed that according to the answers spoken by P.W.3, Ex.D.1 to D.3 are relating to her marriage. It is for her to explain as to when her marriage with A.1 was performed. The marriage photographs under Ex.D.1 to D.3 are to be appreciated in the context of core allegation of the prosecution that A.1 threatened P.W.3 to kill her parents and brother if she did not marry him and that she used to make galata in the road whenever P.W.3 was found and that with compulsion he taken her to
Rushikonda and from there to RTC bus stand and from there with force taken her to
Hyderabad in Volvo bus and confined her for about 20 days and brought back to
Visakhapatnam and also confined her in Visakhapatnam with the assistance of A.3.
It is to be noticed that the factum of marriage as shown in Ex.D.1 to D.3 20 photographs between P.W.3 and A.1 is not only admitted by P.W.1 but also P.W.3.
She never whispered in Ex.P.2 that her marriage was performed in a temple in
Visakhapatnam in the presence of so many persons. When the defence counsel produced Ex.D.1 to D.3 during the course of cross examination of P.W.1 he admitted the presence of A.1 and P.W.3 in the photographs. P.W.3 also admitted the said photographs. But she deposed that it was prior to 31.7.2010. If such is the situation now there remains a doubt as to what made P.W.1 in not making a mention of the factum of her marriage with A.1 as shown in Ex.D.1 to D.3 in Ex.P.2 report.
According to the suggestions put before P.W.1 during cross examination, the marriage was performed in the month of February, 2011. According to the contention of the learned counsel for A1 the marriage of PW.3 and A1 took place prior to 2-8-2010 and the said contention is not convincing. It is to be noticed that if really the accused A.1 used to make galata against P.W.1 at Pendurthi junction whenever she was found, virtually P.W.3 had no reason as to why she did not reveal the facts to her parents. It is not that A.1 was a rowdy element. There is no reason for P.W.3 to keep herself under threatening. P.W.3 was an intermediate student. It is quite improbable to assume that when A.1 allegedly threaten P.W.3 that he would kill her parents and brother, she kept quite without informing the same to anybody. It is quite improbable to assume that under such threatenings P.W.3 was compelled to follow in an auto to Rushikonda and from there to RTC bus stand and from there to
Hyderabad. It is evidence of P.W.3 that she was detained at Hyderabad for about 20 days. It is also her evidence that when she was brought back and detained at
Visakhapatnam she intelligently escaped and reached her parents. It is not known as to why she did not raise any cries when she was being taken to Hyderabad in
Volvo bus from Visakhapatnam. The answers spoken by P.W.3 during cross examination shows that she herself and A.1 were travelling in the auto in the back seat upto Rushikonda. She deposed in cross examination that she did not try to complain either to her college students, parents, principal or the police about the galatas made by A.1 to board the auto and taking her with threats for about 15 times. She did not raise any cries for any occasion when A.1 came with auto and made galata. She did not complain either to her parents, her colleague friends, 21 college principal or police when A.1 threatened her to kill her parents and brother.
A.1 taken her to Rushikonda on 8.7.2010 where they reached at 10.00 a.m., and that A.1 and she are on the back side while driver was driving the auto. Their auto crossed two or three police signal points from Pendurthi bus stand to Rushikonda. In those two or three police signal also she did not raise any cries. She tried to escape from the room at Hyderabad but in vain. She denied that she voluntarily went with
A.1 to Hyderabad and both of them stayed at Sarovarnagar in Hyderabad while A.1 was doing private job there. It is to be noticed that the core allegation of the prosecution case is that A.1 threatened P.W.3 that he would kill her parents and his brother if she did not marry her and used to make galata to board her auto and on 8.7.2010 also he repeated such acts and made her to board the auto and made her to go to RTC bus stand and made her to go to Hyderabad along with him where he confined for about 20 days and brought back to Visakhapatnam and confined her in the house of A.3 etc., P.W.3 did not reveal anything about the marriage of her with
A.1 as shown in Ex.D.1 to D.3 in Ex.P2 or in her chief examination. Here there is a lot of doubt as to whether the marriage of A.1 and P.W.3 was performed either prior to 31.7.2010 or subsequent to 2.8.2010. But the factum of the marriage between
A.1 and P.W.3 is categorically admitted by P.Ws.1 and 3. If really the said marriage took place prior to 31.7.2010 nothing prevented P.W.3 to make a mention about the same in Ex.P.2 report. Ex.P.2 is quite silent. For the reasons best known though
P.W.3 narrated in Ex.P.2 that A.1 tied a yellow thread around her neck at Hyderabad but she did not depose the same. But when Ex.D.1 to D.3 brought to her notice by inviting her attention to the photographs she admitted the factum of marriage. As seen from Ex.D.1 it consists of 10 photographs. In three photographs A.1 was found tying thali around the neck of P.W.3. The photos further reveals that the exchange of garlands and the offerings of prayers by P.W.3 and A.1 in a temple. Ex.D.2 three photographs shown the presence of P.W.3 and A.1 before a purohit and his performing certain ceremonies and it further shows the presence of one other male member and three female members. As seen from Ex.D.3 it also shows the presence of A.1 and P.W.3 with garlands along with other persons. Here the contention of the
Additional Public Prosecutor is that the accused did not prove Ex.D.1 to D.3. It is
22 very difficult to except such a contention. Here the defence examined D.Ws.5 to 7.
D.Ws.5 to 7 are the purohits. According to D.W.5 the temple where he is a pujari is found in photo shown to him (Ex.D.3 photos). In the said temple marriages will be performed. He is the chief archaka in that temple. So many archakas are under him. The purohit shown to him in the photo is his assistant namely Bhamidipati
Rambabu. He can not say whether the persons found in the photo out of Ex.D.3 are of P.W.3 and A.1 standing in the court hall as bride and bride groom.
30. Coming to the evidence of D.W.6 he has been working as purohit of Sri
Subrahmanya swamy temple near Urvasi Theatre, Kancharapalem, Visakhapatnam.
The photographs shown to him (Ex.D.1 to D.3) were taken in the said temple. He was also shown in one of the photograph in Ex.D.3 between A.1 and P.W.3. P.W.3 who is today present in the court and female shown in Ex.D.3 is one and the same person (witness identified P.W.3in the court hall. The male person shown in Ex.D.3 and A.1 is one and the same (witness identified A.1 in the court hall). He can not say the occasion when the said photographs were taken. It is not relating to the marriage. He denied that the photographs were taken at the time of marriage.
There used to be performances of marriages in the said temple.
31.Coming to the evidence of D.W.7 he deposed that the photographs in
Ex.D.1 and Ex.D.3 contains his photograph. A couple was shown in the said photographs. In the said photographs he was following Hindu ceremony. The female shown in Ex.D.1 and D.3 and P.W.3 who is now present in the Court are one and the same. Like wise the male shown in Ex.D.1 and EX.D.3 and A.1 herein are one and the same. In Ex.D.1 and Ex.D.3 the couple were shown as following the marriage ceremony. The prosecution denied their evidence by giving suggestions that they are deposing false. D.W.6 denied a suggestion that P.W.3 and female in one of the photograph in Ex.D.3 and Ex.A.1 are not one and the same. D.W.7 also denied a suggestion that Ex.D.1 and Ex.D.3 are not relating to any marriage ceremony and that he is deposing false and that he identified A.1 and P.W.3 in the photographs falsely.
32.It is to be noticed that on the date of examination of D.Ws.6 and 7 P.W.3 was present before the Court in pursuance of the summons issued. In fact my 23 predecessor in office summoned P.W.3, D.Ws.6 and 7 at the time of examination of
D.Ws.6 and 7. So P.W.3 was physically present before the Court during the examination of D.Ws.6 and 7 and they identified A.1 and P.W.3 as that of the persons found in the photographs. Further the father of P.W.3 i.e., P.W.1 admitted that A.1 and P.W.3 are in the photographs. Further P.W.3 herself admitted that the photographs shows the performing of marriage between her and A.1. When such is the situation there is no merit in the suggestion given by the Additional Public
Prosecutor before D.Ws.6 and 7 that the photos were not relating to the marriage and that the persons found in the photos are not A.1 and P.W.3. So reliance can be placed upon the evidence of D.Ws.6 and 7 to the effect that the persons in the photographs are no other than P.W.3 and A.1. Under the circumstances, I am of the considered view the photographs under Ex.D.1 to D.3 shows tying of Thali by A.1 around the neck of P.W.3 and further shows following of certain religious ceremonies.
It is quite apparent from Ex.D.1 to D.3.
33.The core allegations of the prosecution with regard to the alleged threatenings made by A.1 against P.W.3 so as to compel her to board in the auto several times and to follow him to Hyderabad has to be appreciated in the context of the factum of the admission of the marriage of P.W.3 and A.1. It is to be noticed that after P.W.2 lodged report on 2.8.2010. According to P.W.1 she again left the house and only just six months prior to the giving of evidence by P.W.1 she came back. It is not explained as to where P.W.3 was staying. Though the so called leaving of the house by P.W.3 is subsequent to her lodging of report but the said event is coming on the way prosecution to contend that A.1 used to threaten P.W.3 in several ways.
Here is a case that the prosecution did not explain anything about Ex.D.1 to D.3 photographs and the factum of marriage between P.W.3 and A.1. It is only during the course of cross examination of P.W.1 the photographs are brought into light by the learned defence counsel. If the factum of the marriage was prior to 31.7.2010 as stated by P.W.3 in cross examination it is for her to explain as to why she suppressed all those facts in Ex.P.2. She omitted to speak her allegation that A.1 tied a yellow thread at Hyderabad around her neck for obvious reasons. If the factum of marriage between P.W.3 and A.1 was subsequent to 2.8.2010 it is for P.W.3 to explain as to 24 what made her to join with A.1 subsequent to her lodging report if really she was subjected to various threatenings by A.1 prior to 8.7.2010, on 8.7.2010 and subsequently. So all these circumstances are coming in the way of the prosecution to contend that A.1 used to threaten P.W.3 to board her auto and used to make galata and used to threaten to kill her parents and brother if she did not like to marry her. The case of the prosecution is suffering with severe infirmities. The evidence of P.W.3 in my considered view appears to be unnatural. No man of reasonable prudence that too a women just by alleged threatenings made by A.1 would board the auto and would act according to the directions of A.1 for considerable length of time. The facts and circumstances are such that P.W.3 was a consenting party to follow A.1 to Hyderabad. The evidence of P.Ws.1 and 2 is hearsay in nature. P.W.3 did not speak anything against A.2. She did not testify the presence of A.2 in the so called episodes at Hyderabad. There is no investigation conducted by the Investigating Officer as to where A.1 allegedly confined P.W.3 at
Hyderabad. Though the factum of A.1 and P.W.3 going to Hyderabad and staying for some period at Hyderabad is not in dispute but what the prosecution is expected to prove that it is on account of threatenings made by A.1 only P.W.3 followed A.1 to
Hyderabad and also boarded auto of A.1 several times in Visakhapatnam and felt humiliation in the hands of A.1. All these things are supposed to be established by the prosecution to succeed in the charges framed against the accused. The natural reaction of a girl like P.W.3 when all of a sudden an auto driver made galata and compelled her to board the auto in the street would be that she would reveal the incident to the passers by or atleast to her parents. The natural reaction of such a girl when A.1 allegedly threaten to kill her parents would be that certainly she would have revealed the incidents to her parents. It is not that A.1 was such a person that he was a rowdy element. There was no reason for P.W.3 to allegedly felt frighten on account of the so called conduct of A.1. The entire episodes spoken by P.W.3 against
A.1 alleging that it is on account of threatenings made by A.1 she boarded the auto and followed him as per the directions of A.1 can not stands to any reason. In the given situation P.W.3 would not have kept quite without revealing the incident to her parents or to the students if really she was subjected to such harassment by A.1 25 prior to 8.7.2010. If really the said harassment is true she would not have ventured to leave the house after 2.8.2010 with A.1. P.W.3 is bound to explain as to when her marriage with A.1 took place. According to her it was prior to 31.7.2010. The said answer spoken by P.W.3 is not convincing for the reason that she did not explain anything about the factum of the so called marriage at Visakhapatnam in any way in her report under Ex.P.2. If really such thing is happened prior to 31.7.2010 the allegations of P.W.1 against A.1 in several ways in Ex.P.2 can not stands to any reason. If the marriage was performed after 2.8.2010 there arises every doubt as to whether the allegations in Ex.P.2 as projected by P.W.3 were true or not.
34.Turning to the evidence of D.Ws.1 to 4 the contention of the first accused is that out of the conjugal life between him and P.W.3 they were blessed with a female baby. Turning to the evidence of D.W.1 she deposed in substance that she has been running a nursing home in the name of Visakha Gys. and Obs. Hospital at
Pendurthy. In their hospital they are conducting deliveries, medical termination of pregnancies, tubectamy and hysterectomies. Facilities are available in their nursing home for inpatients. In delivery cases attendant is must. They obtains signature of the patient and statement when they admit the patient into hospital as inpatient.
Out of memory and available record, she can identify the patient. The record produced before her is relating to the girl standing before her i.e., P.W.3 Hima Bindu.
Asper the record, P.W.3 was brought by her husband A. Srinu on the midnight with delivery pains. P.W.3 gave delivery to a female baby on 7.9.2011 at 9.23 a.m. She was in their hospital till 8.9.2011 and was discharged at 11.30 or 12.00 noon.
Ex.D.6 is the birth report of the female baby on 7.9.2011 t 9.23 a.m., with S.No.35.
They prepared birth report with 1 + 2 and one copy was given to the patient and two copies were available with them. Ex.D.6 is the second copy of birth report out of that they prepared birth report. Whatever may be the charges claimed by them was paid by A. Srinu who said that he is her husband. Patient also told her that A. Srinu is her husband. She also told them their marriage is love marriage. During cross examination she deposed that there are about 300 cases with husband name as A.
Srinu. She is not maintaining recording of positive photograph of the patients. She is not in the habit of noting the identification marks of the patient in their record.
26
They have furnished information to GVMC for the birth of baby and noted the surname of father or mother as furnished by the patient. They did not ask the patient or the attendant in support of age proof certificate noted in the record. So far to her knowledge two or three patients may be there with the name of Hima
Bindu out of treated patients of more than 3500/-. She can not say when she treated the first patient by name Hima Bindu. She may not identify the first patient namely Hima Bindu. She can not file the discharge summary for P.W.3 for delivery and discharge and that she stated that it will be available with patient Hima Bindu.
She denied that she brought Ex.D.6 relating to some other patient by name Hima
Bindu and is deposing before the Court that P.W.3 is as that Hima Bindu with collusion with the accused.
35. Here, I would like to make it clear that on the date of examination of
D.Ws.1 and 2 the presence of P.W.3 was secured by my predecessor in office by issuing summons. So it is a case where D.W.1 identified that she assisted P.W.3 as a doctor in giving delivery to a female child. It is a case where D.W.1 appeared before the Court on specific summons to produce the record pertaining to Avala Hima Bindu.
The answers spoken by her in cross examination does not mean that she is deposing false.
36.Coming to the evidence of D.W.2 she is Anganwadi teacher and she produced certain record on summons from the Court. The substance of her evidence is that they are receiving honorarium of Rs.4,200/- per month and they are taking care of pregnant women before and after delivery within the area of Nandamurinagar in 66th ward of GVMC. On receipt of the Court summons, she produced registers.
She can identify the person standing before her whose name is Avala Hima Bindu (P.W.3). After delivery they registered the name of P.W.3 on 1.10.2011 and since then they have given vaccinations and nutrition food to the female baby of P.W.3.
Ex.D.7 is the entry No.267 in Choolinthala, Balinthala Sevala Register C.No.87 for the registration of Avala Hima Bindu (Srinu). In Ex.D.7 what services rendered are noted. Ex.D.8 is the Sl.No.410 in vaccination register relating to Avala Deepika Hima
Bindu (Srinu). They supplied nutrition food consisting of rice, wheat, oil and dhall for the months of November, and December, 2011. Ex.D.9 is the entry for the supply of 27 nutrition food for the month of November, 2011 in take home ration register. Avala
Hima Bindu taken the items and put signature on Ex.D.9. Sl.No.10 take home ration register is the entry for the supply of nutrition food in December, 2011 with signature of A. Hima Bindu. During cross examination on behalf of the prosecution by the
Additional Public Prosecutor she deposed that Ex.D.7 entries reflects items supplied
to the person. They need not obtain the signature of the women acknowledging the vaccination to the baby. There are corrections and over writings at the serial numbers on the registers where Ex.D.7 is one of the entry. Witness volunteers when there is a wrong in serial number they corrected it. In Ex.D.7 it was firstly written as Chintala Hima Bindu and later Avala Bindhu by striking out work
Chinthala. The witness says that Chintha Laxmi who is standing before the Court as
A.3 approached her and told that she brought her daughter-in-law. So the surname of Hima Bindu is noted as Chintala. Again she told that P.W.3 is not her daughter-in- law and she is the daughter-in-law of her elder sister and their surname is Avala so there is a correction. According to serial No.222 of the register the name of the women was inserted as Chukka Aruna, Ramireddy and it is Ex.D.11 Ex.D.12 is the said two entries relating to Edadasu Mahalaksmi and Y. Ganga.
37.Admittedly as seen from the answers spoken by D.W.2 there are certain corrections in the registers. However, the fact is that the medicines and feeding was not given to Hima Bindu even according to D.W.2 prior to delivery and it was only after delivery. Even assuming for a moment that the evidence of D.W.2 is not helping the defence of accused but there remains the evidence of D.W.1 who identified P.W.3 in open Court and stated that she assisted her in giving delivery of child. It is to be noticed that it is a fact that A.1 is not able to establish what happened to the female child. It is his contention that she was detained by her parents. It is a fact that Ex.A.1 did not take steps to take custody of the so called baby as per law. However, the fact is that P.W.3 is bound to explain as to where she spent after 2.8.2010 and till six months prior to giving evidence by PW.1. Her core allegation is that she was threatened and compelled to follow A.1. Ex.D.1 to D.3 negatives such a version. Irrespective of as to whether the accused is able to show that a baby was born out of his wedlock with P.W.3 the prosecution must stand on 28 its own leg to prove the case against accused. Under the circumstances, I am of the considered view that the fact that D.W.1 assisted number of persons as Hima Bindu for giving delivery etc. as elicited in cross examination is not going to strengthen the case of the prosecution in any way. It is well settled that the accused can as well probalise his defence by preponderance of probabilites. The standard of proof on the part of the accused to prove his defence is not with such standard as the prosecution is expected to prove the charges.
38.Coming to the evidence of D.W.3 her evidence in substance is that her house was given on rent to the mother-in-law of P.W.3 who is standing in Court hall.
She do not know the name of mother-in-law of P.W.3. Witness says that her name is
Simhachalam. The husband of P.W.3 was also staying in the house who is also standing before the Court. P.W.3 and A.1 are wife and husband. During cross examination she deposed that she did not file any document into Court to show that she owned a house in Visakhapatnam. She can not say the door number of that house. There is electricity connection to her house. She can not say S.C. Number.
There was no rental deed in between her and tenant for the lease . She do not know performing of marriage between A.1 and P.W.3. She did not attend their marriage.
She denied that P.W.3 and A.1 never lived together as wife and husband in her house as deposed in her chief examination and that she is deposing false to help the accused.
39.Turning to the evidence of D.W.4 he is a health assistant and deposed that on court summons he produced original birth and death register with attested copy of the birth entry relating a female baby whose months name is Avala Hima
Bindu and fathers name as Avala Srinu and date of birth is 7.9.2011. The date of registration before their GVMC is 15.8.2011 with registration S.No.246. The place of birth of the female child is Visakha Gynic Hopsital, Pendurthi. AS per the hospital record sent to their GVMC they made entries in the birth register. Birth and death register is a public document and certified copy also be supplied if a party applies under form No.5. Ex.D.15 is the attested copy of birth entry at S.No.246. During cross examination of Additional Public Prosecutor he deposed that EX.D.15 is silent about the year of births and deaths. Unit number is not noted on Ex.D.15 sheet.
29
Whenever an individual reported the birth of a person to them they used to make enquiries with the parents and the neighbour and later will make an entry in birth register. He denied that he is deposing false hood to help the accused. During re-examination he deposed that he do not know who is Hima Bindu and who is Avala
Srinu and he is deposing as per record only.
40.Leave apart the fact that the 1st accused did not explain as to what happened to the so called baby but he is able to throw some light that there was a marriage between him and P.W.3 and that they resided in the joint family of his parents. It is to be noticed that P.W.3 during cross examination categorically admitted the existence of Election Identity Card issued by the Election Commission of
India marked under Ex.D.5 in which her husband name is shown as A. Srinu. It was in the year 2012. It is for P.W.3 to explain as to how she ventured to go along with
A.1 and to reside along with him if really her case that she was compelled by A.1 to board the auto and to follow Hyderabad is true. All these circumstances that are being referred by this Court goes to show that no reliance can be placed upon the evidence of P.W.3 that under the compulsion and threats made by A.1 she followed
A.1 in his auto either to her college or to Rushikonda or to Hyderabad etc., The evidence spoken by P.W.3 in this regard is not at all believable. There is a categorical admission made by P.W.1 during the course of cross examination that six months prior to his evidence only P.W.3 came back and started residing in his house.
According to him six months after 2.8.2010 she left the house. His date of examination before this Court was 31.7.2013. So even according to P.W.1 P.W.3 was away from their custody for a period of more than 1 ½ year. These are all coming in the way of prosecution to contend that prior to 8.7.2010 A.1 compelled her to board the auto and further threatened to kill her father and brother if she did not like to marry him and further taken her to Hyderabad.
41.This Court has gone through the certain decisions filed by the learned counsel for accused to contend that P.W.3 was a consenting party to follow A.1 and that she was not taken by A.1 with any compulsion.
42.The learned counsel for the accused relied on 2012 (1) ALD (Crl.) 61 (AP). This Court gone through the same. It is a case where the Hon'ble High Court 30 of A.P., held that on the facts and circumstances it appears that the deceased was voluntarily running away with the accused by way of elopement. In my considered view the above said decision and facts obviously stood in a differing footing.
43.In 2014 Crl.L.J.4493 cited by Defence counsel victim was minor and she was not under compelling circumstance to marry accused. In this case, the marriage of PW.3 and A1 is admitted by prosecution witness. It is not covering the present facts and circumstances.
44.The learned counsel for the accused relied on 2011 (2) ALD (Crl.) 593 (SC). The facts and circumstances in the above said case are kidnapping and rape.
There were allegations that she was abducted and committed rape. The facts were also such that her conduct was that she did not raise any cries for help while travelling certain distance after her alleged abduction and her conduct was also unnatural. The investigation conducted by the Investigating Officer was also not on correct lines. Under the circumstances the Hon’ble Supreme Court set aside the conviction.
45.The learned counsel for A.1 also relied on 2011 Cri.L.J. 4589. The
Allahabad High Court on analysing the facts held that the facts and circumstances shows that the victim was a consenting party to entire episode and her evidence regarding abduction and rape is not believable.
46.In 2013 Cri.L.J. 446 the Hon'ble Patna High Court dealt with the facts and circumstances of the allegations under Section 366 and 366-A. There was acquaintance between the accused and victim. It is a case where the victim deposed that she was treated well by accused and she was provided with food by accused.
The Hon'ble Patna High Court on analysing of the facts opined that the statement and conduct of the victim shows that there was no threat or force used by the accused as such it can not be stated that she was forcibly kidnapped and kept in custody by accused.
47.Turning to 2011 Cri.L.J. 2565 relied on by the learned counsel for the accused the allegations were under 376 and 506 IPC. The trial Court recorded acquittal. The revision was preferred against the Judgment of the trial Court. The
Hon'ble Delhi High Court held to the effect that the victim had not made any hue
31 and cry when alleged offence took place and she putforth different versions as such dismissed the revision.
48.In 2011 Crl.L.J. 494, the allegations were under 366 and 376 IPC. The prosecution did not adduce any evidence to show that the victim was below 16 years of age on the date of occurrence. The evidence shows that she accompanied the accused from one place to another willfully. The Hon'ble Punjab and Haryana High
Court disbelieved the explanation of the victim that she was threatened with dire consequences and allowed the appeal.
49.2007 Crl.L.J. 1204 is relating to quashing of a complaint under
Section 506 IPC when th complaint does not attract the essential ingredients and the above said decision is misquoted to the present situation.
50.Coming to AIR 2006 Supreme Court 2461 cited by the learned defence counsel the allegations were under 366 and 506 IPC. It was alleged that the accused along with others had at point of a weapon gave threats to the victim and abducted her against her wishes. There was delay in lodging the report and the evidence of the victim did not show that the accused abducted with any force. In my considered view the above said decision is not relating accompanying of the victim with consent and it is also misquoted to the present situation.
51.Coming to 2000 Crl.L.J.1221 cited by defence counsel it is a case where victim was said to be subjected sexual assault. The facts and circumstances of the said case are different from this case.
52.By virtue of the decisions referred above on certain aspects relating to the aspect that prosecutrix or victim is consenting party it is quite clear that the
Court has to look into the naturality in the version of P.W.3 and the Court has to consider as to whether P.W.3 was a consenting party to accompany the accused or whether she was put under threatenings so accompanying him. As this Court already pointed out the facts and circumstances are such that P.W.3 could have raised hue and cry when at first instance A.1 threatened her to board her auto by making galata and further threatened her to kill her father and brother if she did not accompany him etc., The entire evidence of P.W.3 in this regard appears to be unnatural. Further the various circumstances referred by this Court about the admission of marriage 32 between P.W.3 and A.1 goes to show that virtually the evidence of P.W.3 that she was compelled to follow A.1 etc., is not believable. Under the circumstances, the facts and circumstances are such that P.W.3 appears to have voluntarily accompanied A.1 in boarding his auto and further to Hyderabad. It is very difficult to believe the evidence of P.W.3 in this regard. In the light of the reasons I am of the considered view that the self serving evidence of P.W.3 which has no corroboration at all is suffering with serious infirmities and the facts and circumstances are such that P.W.3 voluntarily appears to have followed A.1 to Hyderabad and stayed there for some time and later returned back to Visakhapatnam and lodged report. The crucial allegations in the case of the prosecution is that A.1 kidnapped P.W.3 to Hyderabad wrongfully detained there and brought back to Visakhapatnam and wrongfully confined her at Visakhapatnam and also criminally intimidated P.W.3. P.W.3 did not speak about A.2 in any way. P.W.3 had every occasion to complain against A.1 either at Hyderabad or at Visakhapatnam when she was allegedly wrongfully confined and when she was alleged kept under criminal intimidation and threatenings. Further she would have raised hue and cry against A.3 when A.3 kept her and A.1 in a room.
The entire evidence of P.W.3 suffers with infirmities and improbabilities as such it is quite difficult to believe that A.1 kidnapped her to Hyderabad and with the assistance of A.2 wrongfully confined and subjected her to criminal intimidation and further at
Visakhapatnam also subjected her to criminal intimidation and wrongfully confined with help of A3. The evidence adduced is not at all convincing and not inspiring any confidence in the mind of the Court.
53.It is to be noticed that the crucial case of the prosecution is that P.W.3 was a minor as on 8.7.2010. This Court gave its due consideration to the above said angle. If the prosecution is able to prove that P.W.3 was a minor as on 8.7.2010 it is immaterial as to whether P.W.3 voluntarily accompanied A.1 or out of compulsion or otherwise she accompanied him. So another crucial aspect on the part of the prosecution to succeed in the charges is to establish that P.W.3 was a minor.
According to the report lodged by P.WS.2 and 3 she was aged about 17 years by then. The defence of A.O is that P.W.3 attained majority even prior to 8.7.2010.
P.Ws.1 to 3 denied suggestions given by the learned defence counsel for A.1 in this 33 regard. It is to be noticed that according to the answers spoken by P.W.1 during course of cross examination he handed over birth certificate of P.W.3 to the investigating officer. According to the investigating officer no such document is produced. It is to be noticed that it is only after the closure of the evidence of the prosecution and when the accused was in the middle of adducing defence evidence, the prosecution has come up with an application before the regular officer to recall
P.W.3 to bring the original SSC certificate and the said petition was allowed and accordingly P.W.3 deposed further that today she brought the original SSC certificate of her. Ex.P.5 is her original SSC certificate (produced along with memo). During cross examination she deposed that she do not remember at which age of her, her mother was expired. While she was studying II standard, her father got second marriage with P.W.2. Her mother was native of Vepada village of Vizianagaram
District. Her father joined her in the school i.e., Vikas Public School, Gajuwaka in the nursery classes. She do not know whether her father joined her in the school by signing on notary certificate. She do not know as to how there were entries in Ex.P.5 regarding her date of birth. She know that her date of birth in Ex.P.5 is correct. She denied that the date of birth shown in Ex.P.5 is in correct and that she is deposing false. She know that she was born in the house at Vepada village and it was informed to her by her father. She did not bring any document from the concerned panchayat or from hospital to show her date of birth. She denied that she completed 20 years age by the time of her marriage with A.1.
54.Coming to the evidence of P.W.1 in cross examination regarding the date of birth of P.W.3, he deposed that Hima Bindu was born at her maternal grand mother place in Jaggayyapeta of Vizianagaram District. She was born at the house of maternal grand mother and not in hospital. He do not know whether the birth of
Hima Bindu was recorded in the relevant birth register in any department or not. His father in law looked after the said fact. Now his mother in law who is the mother of
Suma is alive and his father in law is no more. He did not bring the birth extract of
Hima Bindu from her birth place when he admitted her in school and he stated that her date of birth is found in SSC marks memo. He denied that the date of birth found in SSC marks list is not the actual date of her birth. He admitted Hima Bindu 34 in English Medium Private Convent School. He admitted that he did not bring the birth extract of Hima Bindu from Jaggayyapeta and given the same before the school when he admitted her in convent.
55.Coming to the evidence of P.W.3 she deposed in cross examination further that after she gave report on 2.8.2010 police has not referred her to hospital either for age determination or a conjugal life. She did not request for the above test. Coming to the evidence of P.W.4 his evidence is not relating to any school register regarding the date of birth. But his evidence is only relating to the aspect of
P.W.3 did not attend the school on 8.7.2010. Turning to the evidence of P.W.6 the
Instigating Officer he deposed in cross examination that he did not try to secure authenticated age certificate of P.W.3. He did not refer P.W.3 for medical examination of Ossification test for determination of age. So the investigating officer did not take any steps either to obtain any authenticated age certificate of P.W.3 and did not take any steps to refer P.W.3 for medical examination for conduct necessary ossification test etc.,
56.Now it is a matter of appreciation as to whether any reliance can be placed upon Ex.P.5. As seen from Ex.P.5 it is the Secondary School Certificate i.e., marks statement. It reads the date of birth of A. Hima Bindu is shown as 9-2-1993.
The offence in question was on 8.7.2010. So as on 8.7.2010 P.W.3 completed about 17 years 5 months. It is to be noticed that as to what is the basis for mentioning the age as 9.2.1993 by the school authorities is not explained by the prosecution. It is not that P.W.1 brought any birth extract of Hima Bindu from Jaggayyapeta and given the same to the school authorities when he admitted P.W.3 in school. The evidence of P.W.1 in this regard is not convincing. On the other hand according to the evidence of P.W.1 Hima Bindu was born at her maternal grand mother place in
Jaggayyapeta of Vizianagaram District but not in the hospital and he do not know whether the birth of Hima Bindu was recorded in any birth register and his father in law look into the said affair. According to P.W.1 his father in law is no more but his mother in law is there. It is not known as to why P.W.1 did not cause any enquiry either with his father in law or mother in law when she admitted P.W.3 in convent as to the proof with regard to the date of birth of Hima Bindu. It is a case where the 35
SSC certificate is marked through P.W.3. The school authorities are not examined by the prosecution. What is the basis for mentioning the age as 9.2.1993 in SSC certificate is not explained by the prosecution. The prosecution did not produce any birth certificate either from municipal records or school records. The prosecution did not examine any employees of the municipality or panchayat or any employee of any school to explain the basis regarding the date of birth of P.W.3. It is to be noticed that the SSC certificate is produced by P.W.3 before this Court. Though it is the evidence of P.W.1 that he handed over date of birth certificate to the investigating officer but it is virtually in correct. The Investigating Officer failed to refer P.W.3 for medical examination for determining the age of the victim by conducting necessary test especially ossification test which is the relevant test to decide the age factor.
The Investigating Officer did not explain as to why he did not refer P.W.3 to the medical examination for conducting such a test. So the basis for the age mentioned in EX.P.5 as 9.2.1993 is not explained by the prosecution. It is not for the accused to show that P.W.3 was a major. It is for the prosecution to prove initially that she is a minor. The accused is relying on several decisions to contend that no reliance can be placed upon Ex.P.5.
57.The learned counsel for the accused A.1 relied on as many as five decisions in this regard. This Court gone through the same. In 2012 Cri.L.J. 910 the facts arose under Section 366 and 376 IPC for kidnapping and committing rape.
The age of the victim was in dispute. The investigating agency obtained a school certificate showing the age of the victim as 14 years at the time of commission of offence. The facts were that the prosecution did not explain the basis on which such date of birth was mentioned in the said certificate. The prosecution did not examine any authority who issued birth certificate. Further there was no ossification test conducted to the victim. The only evidence adduced by the prosecution was that the evidence of doctor who stated that the age of the victim was 17 years. The Hon'ble
Madhya Pradesh High Court held that in deciding age two years variance of either side can be taken into consideration and applied the said principle and it was held that the age of the victim comes to 19 years. The Hon'ble Madhya Pradesh High
Court interfered with the order of the conviction of the trial Court.
36 58.Now coming to the present case on hand, there was no basis for the prosecution to say as to on which basis the age was shown as 9.2.1993 in Ex.P.5.
P.W.3 has no personal knowledge as to the basis on which the entries were made in
EX.P.5. The prosecution did not produce any municipal or panchayat record to show the age. P.W.1 has no knowledge as to such record. Even he did not bother to bring any such record to the school authorities when she admitted her child in the school or convent. The Investigating Officer did not get any medical opinion as to the age of
P.W.3. The prosecution did not produce any proof or any certificate issued by the competent authority to show the age of P.W.3. Under the circumstances the facts in 2012 CRL.L.J. 910 and the present facts on hand are similar.
59.Turning to 2011 (1) ALD (Crl.) 711 (SC), the facts arose under
Section 376 IPC. The prosecution relied on the entry in the school transfer certificate to show the age of the victim. The Hon'ble Supreme Court dealt with the admissibility and evidentiary value of such document under Section 35 of Indian
Evidence Act but when it comes to evidentiary value the Hon'ble Supreme Court held that in the absence of material on basis of which the age was recorded and unless person making entry or giving date of birth is examined, it can not prove the age of the girl.
60.Turning to the present case on it is a fact that the entry in Ex.P.5 the
SSC certificate has no basis. The prosecution did not explain the basis on which the date of birth as 9.2.1993 was shown in Ex.P.5. The prosecution did not examine the municipal authorities or panchayat authorities or the school authorities to explain the basis on which the entries were made in Ex.P.5 in so far school certificate. The
Hon'ble Supreme Court held that though the document was admissible in evidence
but in the absence of examining any school authorities and explaining the basis about such entries no reliance can be placed. In the present case on hand also the prosecution did not examine the school authorities who issued SSC certificate to explain the basis on which they made entries there in and no municipal or panchayat record is produced and no person is examined by the prosecution other than P.W.3 as to who furnished the information to the school regarding the date of birth etc., In the light of the above decision in 2011 (1) ALD (Crl.) 711 (SC) it is very difficult to 37 place reliance on EX.P.5.
61. Coming to the decision in 2011 Cri.L.J. 4996 cited by the counsel for accused No.1, the case was under Section 366 and 375 IPC. The age of the victim was subject matter in the above said case. The mother of the victim asserted the age
as 14 years. Such a fact was deposed not basing on any municipal record or birth
certificate. Under the circumstances the Hon'ble Delhi High Court considered the same and held that adverse inference can be drawn against prosecution for denying the ossification test. Coming to the present case on hand, the facts and circumstances are similar to the said case.
62.Turning to the decision in 1997 Cri.L.J. 1313 also the age of the victim was in dispute in a charge under Section 452, 366 IPC. The victim furnished her age
as 20 years but she was not subjected to ossification test though she was medically
examined. The school leaving certificate shown her age below 18 years. The
Hon'ble Punjab and Haryana High Court held that such a certificate can not be relied
upon particularly when her parents were not examined to corroborate it.
63.Coming to the present case on hand, though P.W.1 is examined by the prosecution, he is not able to throw any light as to the reliable evidence regarding the age of P.W.3 and this Court already dealt with above evidence of P.W.1. It is a case where the Investigating Officer did not furnish any reasons whatsoever for not referring the victim for any medical examination. The Investigating Officers appears to have simply recorded the statement of the victim and her parents and P.W.4 and laid charge sheet, without looking into to other angles. Hence, the decision in 1997
Cri.L.J. 1313 are also similar to the facts on hand.
64.Turning to 1988 Cri.L.J.565 cited by the defence counsel the charge was under Section 366 IPC. There was conflicting evidence as to the age recorded in the school leaving certificate and as ascertained from the medical evidence. The
Hon'ble Delhi High Court held that the benefit of uncertainty must go to the accused.
65.Coming to the present case on hand, leave apart non-referring of P.W.3 for conducting necessary medical examination and even the evidence adduced by the prosecution by just simply relying on Ex.P.5 is not at all convincing and the prosecution failed to explain the basis on which such entry was there in Ex.P.5 and 38 evidence of P.W.1 is not at all convincing and as such no reliance can be placed on
Ex.P.5 in the light of the above.
66.In the light of the above decisions, it is quite clear that to prove the age of the victim that she is a minor the relevant record supposed to be produced by the prosecution is the Date of Birth certificate and the entries in the relevant register in the panchayat or municipality or atleast in the entries in the school record etc., If the school record is produced, the prosecution has to explain as to on what basis the entries were there in school record. The prosecution is supposed to examine the municipal or panchayat authorities or the school authorities to prove the contents of the document. Here Ex.P.5 is marked through P.W.3 the victim and she has no personal knowledge as to the basis on which the entries were there and P.W.1 who is no other than the father of victim pleaded ignorance as to whether any entries were made in the municipal or panchayat records by saying that his father-in-law was looking with those affairs and he deposed that he did not bring any such record when he admitted his child (victim) in school etc., and the Investigating Officer failed to refer P.W.3 for necessary medical examination for determining her age. Under the circumstances by simply relying on Ex.P.5 the prosecution can not prove that she was a minor as on 8.7.2010. In the light of the decisions relied on by the learned counsel for A.1 in (1) 2012 Cri.L.J. 910; (2) 2011 (1) ALD (Crl.) 711 (SC); (3) 2011
Cri.L.J. 4996; (4)1997 Cri.L.J. 1313 and (5)1988 Cri.L.J.565, it is very difficult to rely on Ex.P.5. The age of P.W.3 is in serious dispute by A.1. In such circumstances the prosecution is bound to prove the age of the victim as below 18 years as on 8.7.2010. Even Ex.P.5 is not date of birth certificate. It is Secondary
School Certificate i.e., 10 class marks statement and as there is a required column for date of birth the date of birth is mentioned as 9.2.1993. The basis for such mentioning is not known. It is not safe to give finding that P.W.3 was minor by simply relying on Ex.P.5, in the light of various settled legal decision as referred to above.
Hence, I hold that the prosecution has miserably failed to prove that P.W.3 was a minor as on 8.7.2010 in the manner as alleged by the prosecution.
67.As this Court already pointed out P.W.3 appears to be a consenting party for accompanying A.1. Her evidence regarding A.1 and A.3 is not believable and 39 convincing. The evidence adduced by the prosecution is not inspiring any confidence in the mind of the Court. The prosecution has failed to prove that A.1 kidnapped
P.W.3 in the manner as alleged and wrongfully confined her and criminally intimidated her. The prosecution has failed to prove beyond reasonable doubt that
A.2 and A.3 also wrongfully confined P.W.3 and criminally intimidated her. The facts and circumstances are such that it is a fit case where benefit of doubt can be extended to all the accused. In the light of the above reasons, I hold that the prosecution has failed to prove the charges framed against A.1 to A.3 beyond reasonable doubt and A.1 to A.3 are liable to be acquitted by giving benefit of doubt.
68.In the result, A.1 is found not guilty of the charges under Section 366, 342 and 506 IPC and A.2 and A.3 are found not guilty of the charges under Section 342 and 506 IPC and they are acquitted of the same under Section 235 (1) Cr.P.C.,
The A.1 is ordered to be released forthwith if he is not required in any other case.
The bail bonds of A.2 and A.3 shall remain in force for a period of six months
U/sec.437(a) Cr.P.C.
Dictated to the Personal Assistant, III Additional District Court,
transcribed by him, corrected and pronounced by me in open Court, this the 25th day of February, 2015.
III ADDITIONAL DISTRICT JUDGE,
(FAC) VI ADDITIONAL DISTRICT JUDGE
-cum-SESSIONS JUDGE, MAHILA COURT,
VISAKHAPATNAM.
APPENDIX OF EVIDENCE
No. of the witnesses examined by the Prosecution: PW.1 A. Manmadha Rao (Father of victim/P.W.3) P.W.2 A. Shakunthala (Mother of victim/P.W.3) P.W.3 Allada. Hima Bindu (victim) P.W.4 P. Maria Das, Principal P.W.5 A. Sanyasi Rao, A.S.I., of police, P.W.6 R. Mallikharjuna Rao, S.I., of Police, P.W.7 Y. Govinda Rao, C.I., of Police, No. of exhibits marked on behalf of Prosecution:
Ex.P1/11.7.2010 : Report given by P.W.2 to the Police, Ex.P2/02.8.2010 : Report given by P.W.3 tot he Police, Ex.P3/11.7.2010 : First Information Report under girl missing Ex.P4/02.8.2010 : Altered First Information Report under Section 366 (A), 342, 506 r/w 34 IPC.
40
Ex.P.5/24.7.2009 : Secondary School Certificate of P.W.3, issued by Board of Secondary Education, Andhra Pradesh (original) List of witnesses examined on behalf of Defence:
D.W.1 Dr.G.V.D.J Akhileswari D.W.2 K. Nagambika D.W.3 Sk. Madeena Bibi D.W.4 N. Suvarna Raju D.w.5 K. Prasad Sharma D.W.6 Bammidipati Rambabu D.W.7 Kattamuri Somasekhar List of Documents marked on behalf of Defence:
Ex.D.1 Photos 10 number showing the A.1 and P.W.3 Ex.D.2 Digital Photos three number showing purohit and A.1 and the victim P.W.3 Ex.D.3 Digital Photos two three in number Ex.D.4 Original voter ID card of P.W.3 issued Election Commission of India, Ex.D.5 Bank pass book of S.B.H., standing in the name of P.W.3, Ex.D.6 Birth report by D.W.1, Ex.D.7 Entry in Sl.No.267 in Chulintala and Balintala Sevala Register C.No.87 Ex.D.8 Serial No.410 in Aarogya Nirodaka Tikala Register Ex.D.9 Entry relating to supply of nutritions food to P.W.3 at Nandamuri colony (S.No.15) Take Home Ration register for the month of November, 2011. Ex.D.10Entry relating to supply of nutritions food to P.W.3 at Nandamuri colony (S.No.10) Take Home Ration register for the month of December, 2011. Ex.D.11 Entry Sl. No.222 in Ex.P.7 inserting the names of women by name Chukka Aruna w/o Ramireddy by using white fluid Ex.D.12 Entry in Sl.Nos.96 and 97 in Ex.P.7 inserting the names Idadasi Mahalaxmi and Yala Ganga by using white flued Ex.D.13 Corrections with white fluid at entries in sl.Nos.415 and 416 Ex.D.14 Corrections with white fluid at entries in Sl.No.438 Ex.D.15 Attested copy of Entry in S.No.246 showing the intimation of birth Material Objects marked on behalf of the Prosecution NIL
III ADDITIONAL DISTRICT JUDGE,
(FAC) VI ADDITIONAL DISTRICT JUDGE
-cum-SESSIONS JUDGE, MAHILA COURT,
VISAKHAPATNAM.
1
IN THE COURT OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MAHILA COURT, VISAKHAPATNAM.
Present :- A.V.Ravindrababu, III Additional District and Sessions Judge, (FAC)VI Addl. District Judge, Visakhapatnam Tuesday, this the 31st day of March, 2015
SESSIONS CASE NO.84/2012
(P.R.C.No.31 of 2011 on the file of III Metropolitan Magistrate, Visakhapatnam, Crime No.493 of 2010 of Kancharapalem Police Station, Visakhapatnam City).
Between: State Represented by the Sub Inspector of Police, Kancharapalem Police Station, Visakhapatnam. … Complainant And: 1.Surisetty Durga @ Durgadu @ Durga, s/o Suryanarayana @ Suri, 23 years, Caste by Padmasali, r/o D.No.35-38-35, Mutyamamba Colony, Chakaligedda, Visakhapatnam, Native of Choochukonda Ganaparthi, Anakapalle, Visakhapatnam (Welder) 2.Jonnapalli Srinu @ Don Sreenu, s/o Mera Swamy, 19 years, Caste by Kapu, r/o D.No.35-40-17, Dayananda Nagar, Chakaligedda, Visakhapatnam, Native of Surara village, Madugula near Ghat Road, Visakhapatnam District. ( Rod bender) … Accused.
This Sessions Case coming on 24-3-2014 for final hearing before me in the presence of Additional Public Prosecutor for State/Complainant and Sri G. Ananda Rao, Advocate for Accused No.1 and Sri A.S. Rao, Advocate for Accused No.2 and the and having stood over for consideration till this day, this Court made the following:
J U D G M E N T
1.This Sessions Case arises out of PRC 31 of 2011 on the file of III
Metropolitan Magistrate, Visakhapatnam pertaining to Cr.No.493 of 2010 of
Kancharapalem Police Station under Section 376 (2)(g) and Section 302 IPC. The
III Metropolitan Magistrate Visakhapatnam committed the PRC to the Court of
Sessions by virtue of an order dt.12.3.2012 and there upon the case has been given
sessions case number and made over to this Court for disposal according to law.
2.The case of the prosecution in brief as per the contents of the charge sheet is as follows:
The accused are residents of Mutyamamba colony and Dayanandanagar of Chakaligedda, Visahapatnam and they are close associates to each other. The offence took place on 18.10.2010at 9.00 p.m., at Diesel Loco Shed Railway Quarters near Chakaligedda, Kancharapalem. The deceased is one P. Lakshmi w/o late
Locknokora resident of Kancharapalem Diesel Railway Quarters at Chakaligedda,
Kancharapalem, Visakhapatnam and she is native of Konhaiput village, Koraput 2
District, Orissa State. L.W.1 Jagjeevan Panda, s/o Bhagavan Panda is resident of
Trinath Temple street, Koraput, Orissa State. He is a translator of FIR in this case, who translated the statement of the deceased from Oriya to Telugu at the time of police recording the statement of the deceased while she was alive. L.W.2 Pudi
Ramu, L.W.3 Mangisetti Appanna and L.W.4 Nidadana Rajulamma @ Raju are the eye witnesses to the occurrence i.e., while the deceased was informing about the accused committing rape on her and later throwing her from the top of the railway diesel quarters to kill her. L.Ws.5 Kora Maina and L.W.6 Kora Sonnu are the daughter and son of the deceased. L.W.7 Tirugulla Venkata Kameswararao and
L.W.8 Tirugulla Neelima are the witnesses to speak about the family history of the deceased. L.W.9 Triparna Srinivasarao is the contractor under whom the deceased worked as a labour prior to the date of occurrence. L.W.10 Pudi Dhaneswari , L.W.11
Korividi Majji Nookaraju and L.W.12 Patnala Trinadha Reddy are the panchayatdars to prove the inquest held on the deceased. L.Ws.13 Patnala Trinadha Reddy and
L.W.14 Korividi Majji Nooka Raju@ Majji are the mediators to prove the observation report of the scene and seizures made thereunder with the help of L.W.16 Sri T.
Ramachandra Rao, SDFP Inspector of Clues Team, Visakhapanam. L.W.15 Sana
Ramu is the photographer to the scene of offence. L.W.17 Sirla Siva is the friend of the accused to speak about the accused committing the offence of rape on the deceased and their subsequent acts. L.Ws.18Yejjala Ramu and L.W.19 Rapeti
Joginaidu are the mediators to prove the confession of the accused. L.W.20 Dr. J.V.
Narsimha Rao is the Casualty Medical Officer, King George Hospital, Visakhapatnam to speak about his passing MLC intimation to police regarding admission of the deceased for treatment. L.W.21 Dr. V. Bhavani is the Casualty Medical Officer, KGH,
Visakhapatnam to speak about her collecting the specimens of A.2 and Juvenile1.
L.W.22 Dr. P. Kusuma Kumari is the Casualty Medical Officer, KGH, Visakhapatnam to speak about her collecting the specimens of A.1 i.e., pubic hair, nail clipping and blood of A.1 except the semen. L.W.23 Dr. C. Amulya is the Assistant Professor,
Gynec. & Obstt. Andhra Medical College, Visakhapatnam to prove her preliminary medical report dt.23.10.2010 of the deceased. L.W.24 DR. V. Chandra Sekhar is the
Assistant Professor of Forensic Medicine Department, Andhra Medical College, 3
Visakhapatnam who conducted autopsy over the dead body of the deceased and issued post mortem certificate. L.W.25 K. Arun Jyothi is the Assistant Director,
A.P.F.S.L., Hyderabad and L.W.26 is the III Addl. Chief Metropolitan Magistrate,
Gajuwaka, Visakhapatnam who recorded the statement of the witness i.e.,
L.W.17Sirla Siva under Section 164 Cr.P.C., L.W.27 M. Venkata Rao is the Head
Constable 523, Kancharapalem, Police Station, Visakhapatnam who recorded the statement of the deceased while undergoing treatment about the occurrence with the translation of L.W.1 and who registered the same as a case in Cr.No.493 of 2010 under Section 376 (g) IPC. L.W.28 K. Prabhakar the Inspector of Police of
Kancharapalem Police Station, Visakhaptanam is the person who conducted investigation in this case.
3. The deceased P. Lakshmi, w/o late Lucknokora, is native of Konhaiput village, Koraput District of Orissa State. She was married and having seven children. About 10 months back her husband died at his native village Konhaiput.
After the demise of her husband, she with her two female children migrated to
Visakhapatnam from her native place and she is residing at Kancharapalem Diesel
Loco Shed condemned Quarters and working as labour in Coal Godown of L.W.9.
On 18.10.2010 night at about 9.00 p.m., while the deceased was taking food in her room, the accused 1 and 2 along with one Juvenile in conflict with law by name
Mahesh entered into the room of the deceased. As the deceased was alone, the accused 1 and 2 along with one Juvenile in conflict with law took the deceased to the terrace of the building and committed rape and pulled her down from the upstairs to kill her. After the deceased fallen on the ground again they committed rape on her for second time and left the spot. Due to the injuries sustained by the deceased due to her fall from upstairs on ground, she could not able to move and on 19.10.2010 morning, the neighbours L.Ws.1 to 4 noticed the deceased with injuries, got shifted her to KGH, Visakhaptnam in 108 Ambulance for treatment.
On 20-10-2010 on information about the admission of the deceased in KGH,
Visakhapatnam L.W.27 HC 523 visited KGH, Visakhapatnam and recorded her statement and registered the same as a case in Cr.No.493 of 2010 under Section 376 (2) (g) IPC and submitted FIRs to all the concerned. L.W.28 took up personal 4 investigation and investigated into. He visited the KGH, Viskahapatnam and examined the deceased while she was alive. Later he visited the scene of offence on 20-10-2010 at 4.30 p.m., and prepared scene observation report in the presence of mediators L.Ws.13 and 14 and got the scene of offence photographed through
L.W.15 and also seized one light colour kaki shaluva, loose hair and mica mat with the help of clues team, Visakhapatnam and got the scene video-graphed headed by
L.W.16 the SDFP Inspector, Visakhapatnam. As per the statement of the deceased
L.W.28 added Section 307 IPC and sent alteration memos to all concerned. During the course of further investigation on 23.10.2010 at about 4.30 p.m,. L.W.27 received death intimation from the CMO, KGH, Visakhapatnam stating that the deceased while undergoing treatment succumbed to the injuries on 23.10.2010 at 3.00 p.m,. and the body was shifted to KGH Mortuary, Visakhapatnam. Basing on the above death intimation, L.W.28 altered the section of law in this case from
Section 376(2)(g) and 307 IPC to Section 376(2)(g) and Section 302 IPC and submitted alteration FIRs to all the concerned.
4.On 24-10-2010 L.W.28 visited KGH Mortuary, Visakhapatnam and held inquest over the dead body of the deceased from 8.00 p.m., to 10.30 p.m., in the presence of witnesses L.Ws.5 to 9 and panchayatdars L.Ws.10 to 12. Later he sent the dead body of the deceased to the Professor of Forensic Medicine Department,
Andhra Medical College, Visakhapatnam for postmortem examination with a request to preserve the viscera of the deceased. During further investigation on 17.11.2010 on reliable information L.W.27 arrested the accused 1 and 2 at 5.00 p.m., at Sambamurthinagar Railway under bridge, Visakhapatnam. The confession of the accused 1 and 2 was reduced into writing under the cover of a mediators report in the presence of L.Ws. 18 and 19. Later he sent both the accused for medical examination to KGH, Visakhapatnam. L.W.21 the Casuality Medical Officer,
KGH, Visakhapatnam examined A.1, collected specimens of A.2 and the Juvenile in conflict with law and could not able to collect the specimens of A.1. Later both of them were sent to Judicial custody. On 12.11.2010 L.W.28 sent the material objects i.e., Loose hair substance, light colour kaki shaluva and white colour mika mat which were seized at the scene of offence and maroon colour sari with while printed 5 design, olive green colour blouse, yellow colour petty coat and empty black colour cloth money pouch and the specimens of the deceased which were collected at the time of postmortem examination by L.W.24 along with a letter of advice to the
Director, A.P. F.S.L., Hyderabad for DNA profiling and analysis vide APFSL File
NO.SER/1285/2010. On 15.12.2010 L.W.28 sent the specimens of A.2 and the
Juvenile in conflict with law along with letter of advice to the Director of A.P.F.S.L.,
Hyderabad for DNA profiling and analysis vide APFSL file No.SER/1285/2010.
During the course of investigation the accused No.1 was sent for medical examination to KGH, Visakhapatnam from the Central Prison, Visakhapatnam through the orders of Court in Dis.No.1237, dt.20.12.2010 but L.W.21 Casualty
Medical Officer, KGH, Visakhapatnam who conducted examination on A.1 could able to collect the specimens i.e., nail clippings, pubic hair and blood but could not able to collect the semen of A.1. The said specimens of A.1 were sent along with letter of advice to the Director, A.P.F.S.L., Hyderabad for DNA profiling and analysis vide
APFSL File No.SER/1285(B)/2010. Basing on the strength of the Chemical analysis report, L.W.21 issued potency certificate on behalf of Juvenile Thota Mahesh stating that there is nothing to suggest that he is impotent. During the course of further investigation on 26.3.2011 again A.1 was sent for medical examination to KGH,
Visakhapatnam from the Central Prison, Visakhapatnam through the orders of Court vide in Dis.No.470, dt.21.3.2011 but the Casualty Medical Officer, KGH,
Visakhapatnam who conducted examination on AO could not able to collect the semen of the A.1. The Chemical Analysis Report is received from L.W.25. Basing on the strength of the Chemical analysis report, L.W.23 issued the final opinion stating that from her clinical examination and RFSL report, she is of the opinion that the evidence of recent intercourse can not be excluded. Hence, the accused are liable for punishment.
5.The learned III Metropolitan Magistrate, Visakhapatnam taken cognizance of the case against the accused under Section 376 (2)(g) and Section 302 IPC. After securing the presence of the accused 1 who was in jail by the time of taking cognizance and A.2 who was released on bail and after complying the provisions of Section 208 Cr.P.C., the learned III Metropolitan Magistrate at 6
Visakhapatnam committed the case to the Court of Sessions by virtue of an committal order dt. 12.3.2012.
6.Before this Court A.1 and A.2 absconded from the process as such my predecessor in office issued Non Bailable warrants against A.1 and A.2. According to the docket, on 8.2.2013 A1 was produced on production warrant and remanded to judicial custody. According to the docket on 31.5.2013 A2 was produced on production warrant when NBW was pending against him and A.2 was sent to Judicial custody on 31.5.2013.
7.My predecessor in office i.e. the then regular officer by following the procedure under Section 228 Cr.P.C., framed charges under Section 376 (2)(g) and
Section 302 IPC against A.1 and A.2 for which A.1 and A.2 denied the charges, pleaded not guilty and claimed to be tried.
8.During the course of trial, on behalf of the prosecution P.Ws.1 to 20 are examined and Ex.P.1 to p.25 are marked and further M.os.1 to 7 are marked. After the closure of the evidence of the prosecution, A.1 and A.2 are examined under
Section 313 Cr.P.C., for which they denied the incriminating circumstances and stated that they have no defence witnesses. A.1 stated during 313 CR.P.C., examination he is no way concerned with the case and he never committed any offence and the police called him and kept him in the station for 30 ys and asked them to admit the offence but he did not commit any offence and that a false case is foisted against him. A.2 during 313 Cr.P.C., examination represented that he is adopting the version of A.1.
9.Now in deciding the charges framed against the accused the points that arise for consideration are as follows:
1.Whether the prosecution has proved beyond reasonable doubt that A.1 and A.2 committed Gang Rape against the deceased P.Lakshmi on 18-10-2010 night at about 9.00 p.m., 2.Whether the prosecution has proved beyond reasonable doubt that A.1 and A.2 on 18.10.2010 night at about 9.00 p.m., through the deceased P. Lakshmi by pushing her from the top of terrace of the residential quarters and caused to her death in the manner as alleged by the prosecution?
7
Points 1 and 2:
10.Both the points can as well be considered and decided as the entire evidence adduced by the prosecution is interlinked with charges framed.
11.The learned Additional Public Prosecutor during the course of arguments putforth his contentions and projected the case of the prosecution as narrated in the charge sheet. He submitted that some of the material witnesses to the case of the prosecution turned hostile. P.W.1 who rushed to the deceased on hearing her cries in the morning did not support the case of the prosecution. P.W.2 another crucial witness who is said to have translated the statement of the deceased from Oriya to Telugu language while the police were recording her statement did not support the case of the prosecution and he turned hostile to the case of the prosecution. P.W.3 is the daughter of the deceased. According to her evidence on coming to know about the incident she rushed to King George Hospital and found her mother in the hospital. P.W.3 deposed that her mother narrated the incident to her to the effect that three male persons committed rape on her while she was taking dinner by entering into the room and also taken her mother to the upstairs of the said building and there also they committed rape on her and that her mother revealed the names of the three persons as Durga, Srinu and Mahesh. The evidence of P.W.13 is also similar as that of the evidence of P.W.3. So according to
P.W.3 and P.W.13 the deceased informed them in King George Hospital that three persons namely Durga, Srinu and Mahesh committed rape on her and thrown her from the terrace to the ground. Though P.W.1 and 2 turned hostile to the case of the prosecution the Court can believe the evidence of P.Ws.3 and 13 who came to know about the names of the accused through the deceased. He further contended that the prosecution examined P.W.17 to speak about the extra judicial confession made by the accused before him about the committing of rape and murder of the victim, but for the reasons best known P.W.17 turned hostile to the case of the prosecution. The prosecution examined the mediators to the inquest report, observation of scene of offence etc., and they supported the case of the prosecution. According to the medical evidence adduced the possibility of sexual intercourse on the deceased can not be ruled out. He further contended that the 8
Court can place reliance on the evidence of P.W.3 and P.W.13 and mediators who supported the case of the prosecution and basing on the evidence of the
Investigating Officer and the medical evidence the accused can be convicted.
12.The learned counsel for A.1 contended that there is no legally admissible evidence adduced by the prosecution against A.1. Not only the so called
P.W.2 who was translated the statement of the deceased from Oriya to Telugu language did not support the case of the prosecution and even in the so called statement of the deceased there is no whisper about the names of the present accused. When the statement given by the deceased to the police does not contain anything about the names of the accused it is not known as to how P.W.3 and
P.W.13 came to know about the names of the accused. When the deceased was alleged to have revealed the names of the accused to P.W.3 and P.W.13 it is not known as to why they are found missing in the so called earlier statement of the deceased. P.W.2 did not support the case of the prosecution. Even P.W.1 did not support the case of the prosecution. The evidence of P.W.3 and P.W.13 is totally inadmissible in evidence and it is hearsay in nature and simply because the name of A.1 was stated by P.W.3 and P.W.13 as told to them by the deceased a conviction can not be sustained. The evidence adduced by the prosecution through
P.W.3 and P.W.13 is legally inadmissible and no reliance can be placed on such a evidence. P.W.17 the so called person before whom the accused were alleged to have confessed the guilt did not support the case of the prosecution. The prosecution did not prove the extra judicial confession against the accused.
According to the evidence let in by the prosecution by examining the Investigating
Officers A.1 and other accused confessed the guilt before them. The confession recorded by the police is totally in admissible in evidence and the confession before the police by the accused can not be proved against them. There is no recovery in pursuance of the confession. The prosecution did not adduce any scientific evidence to prove that the spermatozoa if any found either on the clothes or on the body of the deceased were of A.1 and A.2. So even by scientific means the prosecution did not lead any evidence. He further argued that virtually there is no legal admissible evidence let in by the prosecution as such AO1 is liable to be 9 acquitted.
13.The learned counsel for accused No.2 contended that P.Ws.1 and 2 did not support the case of the prosecution. The evidence of P.Ws.3 and 13 is hearsay in nature. It is not known as to why the deceased did not reveal the name of A.2 in her so called statement under Ex.P.20 before police. Even other wise P.W.2 did not support the case of the prosecution regarding his translating the statement of the deceased from Oriya to Telugu language. The prosecution did not prove any extra judicial confession and P.W.17 did not support the case of the prosecution. Virtually the prosecution did not prove the guilt against the accused No.2 either by oral evidence or by scientific evidence and the accused NO.2 is entitled for an acquittal.
He further canvassed that there is also third accused against whom the proceedings were levelled before a juvenile court and even the said case against the juvenile in conflict with law was not proved before the said Court.
14.Now in the light of the above rival contentions advanced, I would like to appreciate the evidence on record. Firstly I would like to refer here the evidence of the persons who were said to have found the deceased with injuries at the scene of offence and about the case of the prosecution that she was shifted to King George
Hospital where the statement of the deceased was recorded by police by taking help of L.W.1 (P.W.2) and other facts.
15.Coming to the evidence of P.W.1 he is M. Appanna. He is cited by the prosecution to speak about the occurrence regarding coming to know about the deceased with injuries at the scene of offence. In the charge sheet it is shown that he is cited to speak about the occurrence and the deceased informing him about the accused committing rape on her and later making an attempt to kill her by throwing her from the top of the quarters. L.W.2 Pudi Ramu who is examined as P.W.12 is also cited to speak so.
16.Now I would like to refer here their evidence. Coming to the evidence of P.W.1 he is native of Pedabarubanda near Salur. He do coolie work. He residing near Chakaligedda in Visakhapatnam for a period of three years and did coolie work.
He do not know both the accused standing in the accused dock. He do not know the deceased P. Laxmi who said to be resided in their area of Chakaligedda in 10
Kancharapalem. He do not know Niddada Rajulamma @ Raju (L.W.4) and Kora
Maina (L.W.5). He do not know anything about this case. The police asked him where he furnished his name particulars and they went away.
17.The Additional Public Prosecutor cross examined P.W.1 as he did not support the case of the prosecution. He deposed in cross examination that he did not compromise with any body. In the year 2010 he went to coolie work in port trust of Visakhapatnam. He know Diesel Quarters in that area. He know Sweeper
Ramu who worked as a sweeper at that quarter. He denied that on one day i.e., on 19-10-2010 Sweeper Ramu informed him that P. Laxmi was found in the dustbin of that area and then he and sweeper Ramu went and found her saree was lifted up to knee and Sweeper Ramu adjusted it through women folk present there and asked her as to what happened, then the said Laxmi told that on the previous day night three persons of that locality came into her old quarter and committed rape on her and after that they taken her to the upstairs of that building, pushed her from top as a result she received injuries and Ramu knows Oriya language and he can understand the same and he stated the same version as in Ex.P.1.
18.It is to be noticed that the prosecution is using Ex.P.1 to contradict the evidence of P.W.1. Even according to Ex.P.1 it never runs that the accused committed rape on the deceased and made an attempt to kill her. What is mentioned in EX.P.1 is that three persons committed rape on the deceased and taken them to terrace and thrown her. It never runs about the names of the accused. So the very mention in the charge sheet as if L.W.3 (P.W.1) is cited to speak about the accused committing rape on the deceased and made an attempt to kill her is virtually incorrect. Even according to the case of the prosecution the statement of P.W.1 is that the deceased told him that three persons committed rape on her taken her to terrace and thrown away. However even the fact remains is that
P.W.1 even did not support the case of the prosecution even according to Ex.P.1.
19.Now turning to the evidence of P.W.12 (L.W.2) his evidence is that he is resident of DLS colony in Chakaligedda, Vizag and he is a sweeper. The sweeping of
D.L.S. (Diesel Loco Shed) colony is also within his jurisdiction for sweeping. On one day while he was going with spade and broom stick, he heard cries called him as 11
Ramu. Then he went there and found woman was in drainage with half naked body.
Somebody raised cries called him as Ramu and then he went there. With the help of gathering people, they shifted the lady from canal and they placed her on the side of drainage canal. He picked up a cloth from a dust bin by the side of drainage canal and covered on the lady. The police examined him where he stated above.
The said lady stated something in Oriya language and the same was not understood by him. Some time later, Ambulance came and taken that lady in that ambulance.
During cross examination he deposed that he do not know how that lady fallen into the drainage. As somebody raised cries he went to the spot and he do not know what happened earlier. During cross examination on behalf of A.2 he deposed that prior to that day, he never seen that lady. The people used to call her Konda people.
20.As seen from the evidence of P.W.12 he only spoken to the fact that he found a woman raising cries in a dust bin and he did not speak about the name of the woman. Even other wise he did not speak about the names of the accused. It is not that P.W.12 turned hostile to the case of the prosecution. The intention of the prosecution to cite P.W.12 as if he is to speak about the occurrence, the accused committing rape on her and made on attempt to kill her is factually incorrect. So
P.W.1 and even P.W.12 did not speak about the names of the deceased and name of the accused etc.,
21.Now coming to the evidence of P.W.2 he is said to be the person who translated the statement of the deceased from Oriya to Telugu. The prosecution cited him as list witness No.1 in the charge sheet. Coming to the evidence of P.W.2 he deposed that he is resident of Khoraput and doing pujari in Annapurnamma temple. In the year 2010 he was at K.G.H Hospital as his wife was suffering with brain tumer and taking treatment in that hospital. In those days as he was with disturbed mind due to ill health of his wife, he subscribed so many signatures at the request of doctors or some other persons who ever asked. The doctors postponed the operation to his wife thrice and on that occasion doctors insisted for his signature on forms and accordingly he subscribed. He do not remember in those days one lady got treatment for the injuries said to be caused to her by falling from 12 the building to the ground and also she was subjected for gang rape. Police did not examine him. He do not know A.1 and A.2. He never seen a girl found in a photo in the days where his wife taken treatment in K.G.H. The learned Additional Public
Prosecutor cross examined P.W.2 as he did not support the case of the prosecution.
During cross examination by the Additional Public Prosecutor he denied that in those days victim Laxmi also taken treatment in K.G.H where she gave a statement before police in Oriya in the presence of doctors and as he knew Oriya and Telugu, he translated the statement of the victim Laxmi in Telugu and as such police recorded the statement of Laxmi in the presence of Laxmi and he stated the same version
before police as in Ex.P.2 statement and that he is deposing false to help the
accused.
22.In view of the above, P.W.1 did not support the case of the prosecution.
Even P.W.2 did not support the case of the prosecution with reference to the statement given by the defacto complainant said to be in Oriya which he is said to have translated into Telugu. Further there is nothing in the evidence of P.W.12 revealing the names of the accused or otherwise.
23.Now this Court has to consider the evidence of P.W.3, P.W.13 and
P.W.18 together who are said to be the crucial witnesses to the case of the prosecution. It is through the examination of P.Ws.3 and P.W.13 during the course of investigation, the investigating officers seems to have elicited the names of the accused as culprits. For better appreciation, I would like to refer here the substance of their evidence.
24.Coming to the evidence of P.W.3 she deposed in chief examination that she is resident of Marripalem and staying in the house of one Kameswararao. The deceased P. Lakshmi is her mother. He know A.1 and A.2. The photos shown to her are of her mother. Her mother died about three years back. Three persons committed rape on her and thrown away from the building and so she received injuries and died. She was admitted in K.G.H Hospital and while undergoing treatment she died. While her mother was in hospital, she went and seen her mother. Neelima is the owner of the building where they stayed. She further deposed that in those days on one day in the afternoon time while she and Neelima 13 returned to the house from shopping and on the way at St. Johns School at
Kancharapalem, three male persons and her mother were quarrelling with each other and among the three male persons, the persons present in the court are two of them (A.1 and A.2 present in the Court hall). She can identify that 3rd person also. Subsequently 10 to 15 days later police came to their house. It is on 23rd of 2010 but she can not say the month. Police told them after confirming that the victim is of her mother that she was in K.G.H. Then she, Neelima and
Kameswararao went to the hospital and talked with her mother. When she asked her mother she told that three male persons committed rape on her while she was taking dinner by entering into the roof and also taken her mother to the upstairs of the said building and there also they committed rape on her and when her mother tried to escape, those three persons thrown her down. As they are calling each other with their names, her mother heard the names of that persons as Durga,
Srinu and Mahesh. The police examined her and recorded her statement.
25.Coming to the evidence of P.W.13 she deposed that she is residing in
Marripalem of Visakhapatnam and she is house wife. It is in Q.No.2/1 Type IV of
Railway Quareters in Marripalem. Her husband is working in Railways and so they are residing in Railway quarters. She know Korama Maina (P.W.3) who is the daughter of the deceased Korabatti @ Lakshmi. P.W.3 is working in their house as a servant maid. While her husband worked at Koraput, the deceased Batti worked as a servant maid in their house. So they have acquaintance with Maina. After transfer the said Maina/P.W.3 accompanied deceased when they came to Vizag on transfer. First P.W.3 accompanied them and some time later the deceased came to
Vizag. The said Batti is no more. On 23.10.2010 a Constable came to their quarters and asked her who is Maina/P.W.3. Then she is told by police that the mother of P.W.3 was in hospital. Then she and Maina went to Hospital and talked with the Batti who is in hospital. Then she narrated the incident to her where she stated that three persons taken her to upstairs of D.L.S. Quarters and committed rape on her. She has stated the names of those three persons as Srinu, Durga and
Mahesh. The she returned back. On the next day the said Batti died. The police also informed the same to her. Later he in turn informed that news to the relatives of 14 the deceased in Koraput. The dead body was shifted to Mortuary. She, her husband and P.W.3 were also present at the time of inquest over the dead body of the deceased. She and her husband /P.W.4 put their signatures on the inquest report/Ex.P.4.
26.So according to the evidence of P.W.3 it is on intimation on 23rd of 2010 she came to know that her mother was admitted in the hospital and she went there and talked with her mother. She (deceased) told her that three male persons committed rape on her while she was taking dinner by entering into the roof and also taken her to the upstairs and there also they committed rape and thrown her.
As they were calling with each other with their names, her mother heard the names of those persons as Durga, Srinu and Mahesh.
27.According to P.W.13, it is deceased who revealed to her that the persons were Durga, Srinu and Mahesh. It is the evidence of P.W.13 that she talked with the deceased and came to know about the names of the said persons.
So P.W.3 is claiming that when she questioned her mother about the incident, she revealed the same and she heard from the accused that their names was Durga,
Srinu and Mahesh. During cross examination of PW.3 she stated that her mother narrated the version to her in Oriya language. According to PW.3 in cross examination deceased told their names to her and PW.3 in Telugu. It is not known how deceased spoken in Telugu before PW.13 when it is the prosecution case that she could not speak Telugu as such police took assistance of PW.2 to translate his statement in Telugu. Hence, the evidence of PW.13 as if the deceased revealed the name to her in Telgugu is not believable.
28.Now it is necessary to mention here the evidence of P.W.18 with reference to the statement recorded by him from the deceased while she was alive.
Turning to the evidence of P.W.18 he deposed in substance that now he is a retired police officer. Previously he worked as Head Constable of Kancharapalem Police
Station from 16.6.2009 to 15.11.2011. On 19.10.2010 while he was in police station at about 10.00 clock he received an MLC intimation from KGH. Ex.P.19 is the said intimation. Then he visited the hospital and found injured P. Lakshmi is unconscious (deceased). Then he obtained endorsement from Duty Doctor stating 15 that victim is unconscious. He informed that fact to the out post P.S., in K.G.H and returned to Kancharapalem Police Station. On 20-10-2010 morning out post police station people informed him that victim regained conscious and then he visited the hospital and found the said victim P. Lakshmi talking in Oriya. He found one
Attendant of a patient in the same ward knowing Oriya and Telugu and his name is
Jagajeevan Panda. Then he secured the said Attendant as a translator and recorded the statement from P. Lakshmi with the assistance of above name translator and it is Ex.P.20. He obtained the thumb mark of P.W.1 on Ex.P.20. He has taken the endorsement of duty doctor on Ex.P.20 stating that victim girl is fit to give statement. Basing on Ex.P.20 he registered a case in Cr.No.493/2010 under Section 376 (g) of IPC and submitted original FIR to the Court and copies to concerned officials. Ex.P.21 is the original First Information Report. On his information about this case his superior official i.e., their inspector of police, K. Prabhakar/L.W.28 took up investigation.
29.It is to be noticed that P.W.2 who purported to have translated the so called statement of the deceased from Oriya language into Telugu turned hostile to the case of the prosecution. However, the prosecution marked the so called statement of the deceased under the cover of Ex.P.20. So basing on Ex.P.20, P.W.18 registered a case in Cr.No.493/2010 under Section 376(2) (g) of IPC i.e., gang rape and issued FIR. Now as seen from Ex.P.20 absolutely there is no whisper by the deceased what-so-ever that she revealed the names of Durga, Srinu and Mahesh as culprits. So as on 20-10-2010 the deceased did not reveal the names of accused
before P.W.18, when P.w.18 recorded the statement of the deceased under the cover
of Ex.P.20. Virtually even P.Ws.1, 2 and 12 did not reveal that the deceased disclosed the names of the accused before them. Here it is either P.W.1 or P.W.2 or
P.W.12 or nearby resident of that locality who were said to have brought the deceased to the King George Hospital on 19.10.2010. It appears that the King
George Hospital sent a Medico Legal case intimation to the concerned police on 19.10.2010. But according to the evidence of P.W.18 he could record the statement of the deceased only on 20.10.2010 as the deceased was in unconscious stage. In
Ex.P.19 in the medico legal intimation sent to the police, it was mentioned that the 16 deceased was alleged to have fallen in steps and sustained injuries on 18.10.2010 at 9.00 p.m., at Diesel Shed, Railway New Colony. It is not known as to why the so called persons who brought the deceased to the hospital did not reveal that the deceased was alleged to have sustained injuries on account of the offence committed by the culprits against her. Even assuming for a moment that omission to mention those facts in Ex.P.19 can be taken as trivial in natural and what is material to be seen here is as to the basis on which the Investigating Officer brought into picture the names of the accused as culprits.
30.It is an admitted fact that even according to the case of the prosecution the deceased did not reveal the names of the accused either to P.W.1 or P.W.2 or
P.W.12 either on 19.10.2010 or 20.10.2010 or till 23.10.2010.. It is only on the date of death of deceased i.e., on 23.10.2010 the names of the accused were elicited from the mouth of P.W.3 who is no other than the daughter of the deceased.
It is not known as to how and why information could not be given to P.W.3 either on 19.10.2010 or on 20-10-2010 intimating about the admission of the deceased into
K.G.H., It is only on the date of the death of the deceased on 23.10.2010 the investigating agency recorded the statement of P.W.3 the daughter of the deceased and P.W.13 in whose house P.W.3 was said to be working. It is the case of the prosecution as evident from the evidence of P.W.19 the investigating Officer that he also visited the KGH and recorded the statement of the deceased while she was alive under Section 161 Cr.P.C., It is not the case of the prosecution that in the statement given by the deceased before police she revealed the names of the accused. So even on 20-10-2010 there was no occasion for the deceased either while giving statement before head constable under EX.P.20 or while giving statement before the investigating officer under Section 161 Cr.P.C., to reveal the names of the accused. It is not known as to why the deceased did not reveal the names of the accused either to P.Ws.1, P.W.2, P.W.12 or to P.W.18 in her statement under Ex.P.20 or in her statement under Section 161 Cr.P.C., recorded by the
Investigating Officer. So till 23.10.2010 the names of the accused were not brought into picture though the deceased was said to have had knowledge of the names of the accused. If really the deceased was aware of the identity particulars of the 17 culprits or was aware of the names of the accused the normal supposition is that she would have revealed the same at earliest point of time on 19.10.2010 either to
P.W.1, P.W.2, P.W.12 or atleast on 20-10-2010 to P.W.18 while she was narrating the incident under EX.P.20. The prosecution is not putting forth any sort of explanation in this regard.
31.So basing on the so called names furnished by the deceased before
P.W.3 the prosecution is trying to fasten the criminal liability against the accused.
P.W.3 in her chief examination quoted a previous incident in which she claimed to have got knowledge about the accused 1 and 2. In this regard her evidence as this
Court already pointed out is that on one day in the afternoon timing while she and
Neelima returned to the house from shopping and on the way at St. Johns school at
Kancharapalem three male persons and her mother were quarreling with each other and among the three male persons the persons present in the Court are two of them (A.1 and A.2 present in the Court hall). She can identify that 3rd person also.
It is to be noticed that the above incident spoken by P.W.3 is not relating to crime in question. The said incident was said to be happened 10 to 15 days prior to the offence in question. The prosecution by eliciting such a fact appears to have an idea to contend that as the deceased revealed the names that of Durga, Srinu and
Mahesh, P.W.3 got knowledge that the above said persons were the persons who quarreled with her mother 10 to 15 days prior to the incident. The above said evidence of P.W.3 is admittedly a omission which P.W.3 did not state in any way in her statement before the police. Here during cross examination on behalf of A.2,
P.W.3 admitted that she did not state before police about the quarrelling between three persons and her mother while she and Neelima were returning back to the house from a shop. She denied a suggestion that such a quarrel never took place at St. Josekhs school of Kancharapalam. She denied that Durga, Srinu and Mahesh have no acquaintance at all with her mother at any time. So the evidence of P.W.3 developed during the course of trial as if she got knowledge and got acquaintance with A.1 and A.2 and one Mahesh as she happened to see a quarrel 10 to 15 days prior to the incident in question is amounting to material contradictions. Probably
P.W.3 deposed such a fact to give a picture that as her mother revealed the names 18 as Durga, Srinu and Mahesh, she had reason to believe that the above said persons were no other than the A1 and A2 who quarreled with her mother. No reliance can be placed upon such improved evidence. It is a case where the deceased was said to have mentioned in Ex.P.20 that she can identify the culprits if they were shown to her. Virtually she did not reveal the identity particulars of the so called persons who allegedly committed rape on her and thrown her away from the terrace of the building. It is not in dispute that the investigating agency did not conduct any test identification parade etc., involving the deceased so as to identify the accused. The purported statement under Section 161 Cr.P.C., recorded by P.W.19 was similar to that of the statement under Ex.P.20. The investigating agency had no clue till 23.10.2010 about the names of the accused and it was only by recording the purported statement on 23.10.2010 on the date of death of the deceased from
P.W.3, they claimed that she revealed the names as Durga, Srinu and Mahesh as told to her by her mother. The prosecution has failed to explain as to how the deceased could not state such crucial things in EX.P.20. P.W.3 did not putforth any explanation as to whether she ascertained from her mother on 23.10.2010 as to why she did not disclose the names of the accused in her statement under Ex.P.20.
No semblance of explanation is coming from the mouth of P.W.3 in this regard. The prosecution claimed that it was on 19.10.2010 morning on hearing the cries of the deceased, who was found near the dust bin P.W.1 and P.W.12 gone there and ascertained the facts from the deceased and that the deceased revealed to them about the offence committed by the three persons on her. So if really the deceased had knowledge of the names of A.1 and A.2 and other person by 19.10.2010, she would have revealed the same to P.W.1, P.W.2, P.W.12 or atleast to the Investigating
Officer on 20.10.2010 when her statement under Ex.P.20 was recorded or when she was examined by P.W.19 during the course of investigation. The very examination of P.W.3 and P.W.13 on the date of the death of the deceased and eliciting the names of the accused from P.W.3 appears to be suspicious.
32.Now this Court has to consider whether any reliance can be placed upon the evidence of P.W.3 that her mother revealed the names of Durga, Srinu and
Mahesh as the persons who committed the offence against her. As this Court 19 already pointed out the prosecution did not putforth any reason as to why the deceased did not reveal such a crucial aspects to police or to P.W.1, P.W.2 or P.W.12 in the earlier occasion. Even during the course of the investigation the deceased did not reveal the same to P.W.19. It is to be noticed that for the first time before the
Court P.W.3 introduced new facts in which she claimed to have knowledge about
Durga, Srinu and Maesh. The above said answer is nothing but a omission which amounts to material contradiction. She deposed such a facts to explain some basis that basing on the names furnished by the deceased to her she assumed that perpetrator of the offence were the persons who quarreled with the deceased 10 to 15 days prior to the incident in question. No reliance can be placed up such an improved version. So the claim of P.W.3 that she had prior knowledge about Durga,
Srinu and Mahesh can all together be ruled out safely. So if such an event is ruled out now the prosecution has to explain as to what is the basis on which it brought into picture A.1, A.2 and other person as accused. It is to be noticed that the evidence of P.W.3 that her mother revealed the names of Srinu, Durga and Mahesh is hearsay in nature. Even it can not be brought under the purview of Section 6 of the Indian Evidence Act under principal of resgeste . It is not that immediately after the occurrence the mother of the P.W.3 revealed the offence in question to passersby. It is to be noticed that if an offence in question is immediately after the incident was brought to the knowledge of any other persons or within the reasonable time by victim it can be termed as relevancy of facts forming part of same transaction. Here the offence in question was on 18-10-2010. It was about six days after the incident the deceased claimed to have revealed the names of the culprits to P.W.3 her daughter and it is the say of P.W.3 that her mother revealed the names of the accused to her. In my considered view the evidence of P.W.3 in this regard can not be brought under the purview of resgeste as such it is nothing but hearsay in nature.
33.Now I would like to discuss as to what was the investigation done basing on the purported statement of P.W.3 before police under Section 161 Cr.P.C.
If P.W.3 revealed the so called previous incident in question happened 10 to 15 days prior to the incident before police, the investigating agency would have got an 20 opportunity to conduct a test identification parade involving P.W.3 to identify as to whether the names of Durga, Srinu and Mahesh were of the persons who quarreled with the mother of the deceased 10 or 15 days prior to the incident. Undoubtedly the above new facts deposed by P.W.3 amounting to material contradiction which can not be believed by this Court. So the subsequent investigation done by the investigating agency after recording the statement of P.W.3 was arrest of A.1 and
A.2 under the cover of Ex.P.6 the so called mediators report. It is to be noticed that
P.W.8 is the so called mediator who witnessed the arrest of A.1 and A.2 and giving their confession.
34.Coming to the evidence of P.W.8 he deposed that he is resident of
Chakaligedda and working as a Supervisor in Private company. He know Vajjala
Ramu/LW18. On 17-11-2010 at about 4.00 pm, Inspector of police called him as he was president of their colony. Then he and Ramu went to Vth town P.S. By then
Y.Ramu is the vice president of that colony. They went to police station. Inspector of police taken them to Sambamrthy Nagar of K.Colony and reached a fly over. Later they went under the flyover bridge and they found A-1, A-2 and another boy of younger age. Then the police caught them and interrogated and all the said 3 persons confessed separately that they committed rape on a tribal women in
Railway quarter and later taken her to up stair of the building and thrown as she tell the incident to the others. Then the police incorporated the same in mediators report. He and Ramu put their signatures on that mediators report. A-1, A2 and another boy put their signatures on all pages of mediators report. Ex.P6 is the mediators report dt 17-11-2010 at 17.00 hours. As seen from Ex.P.6 it undoubtedly contains the confessional statement of A.1 and A.2. It is hit under
Section 25 of Indian Evidence Act. The confession by the accused before a police officer is inadmissible evidence. So what is legally admissible evidence by virtue of
P.W.8 is only regarding the arrest of A.1 and A.2. So the confession in Ex.P.6 is inadmissible in evidence and it can not be considered by the Court.
35.The investigating Officer appears to have relied on the statement of
P.W.17. It is the case of the prosecution that during the course of investigating the investigating Officer examined P.w.17 who claimed that A.2 revealed before him 21 that he, A.1 and other Mahesh committed rape against the deceased and thrown away her from the terrace. So the prosecution is claiming that the so called statement of accused before P.W.17 is an extra judicial confession. It is the case of the prosecution that during the course of investigation the statement of P.W.17 was also recorded under Section 164 Cr.P.C., before the concerned Judicial First Class
Magistrate.
36.Now coming to the evidence of P.W.17 he deposed in substance that he is resident of Kancharapalem and a painter. He studied upto 6th class in Port school and completed in port school. He is in the habit smoking Cigarettes and consume
Gutkhas. As he was joined in hostel, he discontinued studies. He used to commit thefts of railway properties. In that regard he was kept in Boston school. He know
Srinu who is sitting as a first person. (Witness identified 2nd accused Srinu). He (P.W.13) was residing on one side of Chakaligedda and where as A2 was residing on the other side of Chakaligedda. About 3 to 4 years back on one day he and A2
Srinu and other accused who is in accused dock/A1 went to commit theft of Iron
Scrap in ESSAR Company by the side of Chavulamadum, Vizag. But they have not succeeded in committing theft of iron scrap. On the way they found a person who fell in a fully drunken state. They have taken cell phone from him and pledged the same for Rs.500/- and consumed the liquor for that amount and stayed upto 12 midnight in their Chakaligedda area. Then he left the place and went to his house where as A-1 and A2 continued in taking liquor.On the next day morning he came to know that one lady fell down from the terrace and was struggling. He reached the spot and seen that lady. Crime police asked him where is Srinu/A2 and then he told them he went to his home on that day itself. Before that he met with Srinu and asked when they left at that night. Then A2 told him that they did succeeded in that night. But 2nd accused did not tell him what happened at the quarter on the last night. On that day police taken him to the P.S and prepared a report, read over and explained to him the contents and asked him to say the same statement before Magistrate. Accordingly he gave same statement before
Magistrate. Ex.P18 is the Statement recorded by the Magistrate from him (164
statement). When the police examine him, he gave same statement before police 22 what he stated before Magistrate.
37.The learned Additional Public Prosecutor sought permission of the Court to treat him as hostile. During the course of cross examination by the learned
Additional Public Prosecutor he denied that on the next day morning when A.2 met
him he told that after he left on the last day night he and A.1 and Mahesh went to
Railway quarters and committed rape on woman and thrown her from terrace and later both of them came down and again committed rape on her and he stated same version before Magistrate under Ex.P.18 and that now he is deposing false at the instance of police. He denied that A.2 also asked him not to tell the said fact to anybody and that he has also not revealed the same and now he is deposing false.
He denied that he also stated to the police that after the incident both accused and
Mahesh went some where and he do not know their whereabouts and that he is friend of A.1 and A.2 he is deposing false to help them. During cross examination on behalf of A.2 he deposed that the police produced him before Magistrate. The police asked him to give statement before Magistrate what they tutored otherwise they will book a case for cellphone. When the Magistrate recorded his statement under Ex.P.18 the police were outside the Court. The police also told him that they will be out side the Court.
38.So P.W.17 who is said to have came to know about the incident through A.2 by way of an extra judicial confession and who has given purported statement under Section 164 Cr.P.C., under the cover of EX.P.18 before the concerned Magistrate also turned hostile to the case of the prosecution. It is to be noticed that the prosecution has to establish the extra judicial confession against the accused firstly and in the event of proving extra judicial confession only the
Court has to look into as to whether the extra judicial confession is voluntary and whether it has any corroboration from any source. Here virtually the purported extra judicial confession of A.2 before P.W.17 is not proved as P.W.17 turned hostile to the case of the prosecution. It is to be noticed that even according to the evidence of P.W.17 he is a person of bad character for the reason that he was habituated in bad vices and was also committing theft of railway properties and once he was kept in Boston school even according to him he was the person who 23 made attempt along with A.1 and A.2 to commit property offence. So when P.W.17 is of such a person that he was amenable to the surveillance of the police, it is quite easy for the police to make P.W.17 to depose before the Court U/Sec.164cr.pc as per the instructions of the police. Here is a case that according to P.W.17 he was tutored by police to give statement under Section 164 Cr.P.C., So virtually he did not support the case of the prosecution. The statement under Ex.P.18 can not be read in substantive evidence. According to the evidence of P.W.17 his statement
before the Magistrate was not voluntary. It is to be noticed that the prosecution
has failed to prove the extra judicial confession against A.2.
39.Now this Court has to whether A.1 and A.2 had any occasion to reveal the so called incident to anybody. It is to be noticed that it is the case of the prosecution that A.2 revealed the incident to P.W.17 and requested him not to reveal the same to anybody. No man of reasonable prudence would venture to reveal such a incident to some other third person and requested him not to reveal the same to any other person. It is not that P.W.17 was well wisher of A.1 and A.2.
Even according to the case of the prosecution P.W.17 was close associate of A.1 and
A.2 as he also used to commit property offences along with A.1 and A.2. If really
P.W.17 had such a close acquaintance with A.1 and A.2 and A.2 had utmost belief in
P.W.17 that he would not reveal the incident to anybody virtually P.W.17 would not have any occasion to share the so called extra judicial confession with anybody.
Here, not only the prosecution has failed to prove the extra judicial confession said to be given by A.2 before P.W.17 and even the prosecution did not explain the circumstances which were allegedly conducive for giving such a narration by A.2
before P.W.17. The investigating agency appears to have relied on the confessional
statement of A.1 and A.2 and the extra judicial confession of A.2 before P.W.17 and came to a conclusion that A.1 and A.2 and other committed the offence. In my considered view the so called confessional statement of A.1 and A.2 are inadmissible in evidence and the prosecution has failed to prove the extra judicial confession against A.2 and the purported statement under Ex.P.18 can not be read in substantive evidence.
40.To sum up this extent, there are doubtful circumstances as to why the 24 deceased did not reveal the names of Durga, Srinu and Mahesh to P.W.1, P.W.2,
P.W.12 or the police under Ex.P.20 or during investigation. The manner in which
P.W.3 claimed to have knowledge about the names of the accused is suspicious and her evidence is hearsay in nature and her evidence can not be brought into the purview of Section 6 of Indian Evidence Act and if the deceased had knowledge about the names of the accused, she would have revealed the same prior to 23.10.2010 atleast before police. The prior incident spoken by P.W.3 said to be happened 10 or 15 days before the incident in question as if she had knowledge of accused can not be believed. So having regard to the facts and circumstances and the evidence of P.Ws.3, 13, 18 and 19 it is very difficult to come to a conclusion that their evidence would establish the role of the accused.
41.P.W.4 is the husband of P.W.13. His evidence is also hear say in nature for the reason that what he deposed is that he, his wife along with P.W.3 went to
KHG to see the deceased. P.W.3 talked with her mother in Oriya language where she also replied in Oriya. P.W.3 told them that while her mother was taking dinner in her quarters three male persons committed rape on her and taken her to upstairs and when she resisted, they thrown her from the building and she sustained injuries and even then they again committed rape on her. The names of the three persons informed to P.W.3 by her mother are Durga, Srinu and Mahesh. As this Court already pointed out no reliance can be placed upon the evidence of P.W.3 and upon the case of the prosecution in this regard. Hence, the evidence of P.W.4 is of no use to the case of the prosecution. His evidence also negatives the claim of PW.13 that the deceased in Telugu revealed the names of accused to her.
42.Now I would like to deal with the medical evidence available on record.
43.Coming to the evidence of P.W.7 he deposed that now he is working as
R.M.O., in K.G.H., Visakhapatnam. He worked as C.M.O., in K.G.H., whenever his presence needs in serious condition of patients. In this case he examined
Jonnapally Srinu (A.2) with regard to his potency and issued certificate with opinion that there is nothing to suggest that he is impotent. He issued EX.P.5 potency certificate in that regard. He also issued potency certificate with regard to Thota
Mahesh, aged 15 years (the said person facing trial in Juvenile Court).
25
44.Coming to the evidence of P.W.9 she deposed that she has been working as Asst. Professor, AMC., Visakhapatnam. Presently she worked as Civil Asst
Surgeon, K.G.H Vizag from June, 2010 to December, 2011. With requisition from
Kancharapalem police, they produced one person by name Durga @ Durgu aged about 23 years for potency test and for certificate. As per the requisition, she collected nail clippings, public hair, and semen of Durga and sent the same for
R.F.S.L examination. He examined the said Durga and issued potency certificate with opinion that there is nothing to suggest that he is impotent. Ex.P7 is the said potency certificate of Durga. The witness verified the identification marks of the first accused Durga and stated that he is the said Durga, where she collected the nail clippings, public hair and issued potency certificate.
45.Coming to the evidence of P.W.10 she deposed that now she is working as Medical officer, R.HĊ. Simhachalam. Previously she worked as Asst. Professor,
Obstrictics and Gynecology AMĊ Visakhapatnam June, 1997 to December 2011.
46.On the requisition from Kancharapalem PS, on 22-10-2010 for Gynecology examination of victim women by name P.Lakshmi w/o late Locknokora aged 40 years by caste Oriya Dambo the Victim where she was undergoing treatment in
Neuro surgeon ward she went there. Since she is Oriya person she received history of case from victim women through interpreter who known oriya and Telugu.
As per that narration that the said lady was subjected to rape, thrown from the top of the building and she received injuries. She also observed injuries on that women. She collected specimens from vaginal swab, vulvul swab, cervical swab and smears vulvul and veginal and cervical and sent to RFSL , Hyderabd for D.NS profile. After receiving RFSL, report she issued final opinion. ExP8 is the FSL report dt 9-6-2012 where it is opined that human semen and spermatozoa are detected on Item No. 6. Blood is detected on other items. Basing on the RFSL report and her clinical examination, she is of the opinion that the evidence of recent intercourse cannot be excluded. ExP9 is his final opinion. To day requisition received by her is final and it is ExP10. The said women died due to respiratory arrest.
47.Coming to the evidence of P.W.11 he deposed that he has been 26 working as Asst. Professor, Department of Forensic Dept. AMĊ Visakhapatnam since
July, 2009. On the requisition from S.H.O Kancharapalem he conducted
Postmortem Over the dead body of P.Laxmi @ Korabatti W/o. Likhonkerta Thombo
Harijana native of Khoraput Dist, and village. He found the following internal and external antimortem injuries.
1.Abrasion 2x 1½ c on center of left fore arm 2.Grazed scab fallen abrasion 3 x 1.5 cm noted on outer 1¾ right eye lid, adjoining right cheek. 3.Abrasion dark brow 1.4 cm x 0.5 cm noted on inner 1½ right upper lip just below right nostril. 4.Abraded contusion 8 x 3 cm noted on back upper 1¾ left abdomen, 5.Contusion 10 x 8 cm on back upper 1¾ left abdomen. 6.Abrasion 1 x 1 cm noted on back outer right elbow. 7.Bone deep laceration 2 x 1¾ cm noted on on palmar right inger at proximal inter phalaymal joint irregular magfic dia location joint noted. 8.Abraded muscle deep laceration 3 x 3 cm front center mid 1¾ right leg noted. 9.Abrasion 2 x 1½ cm dark brown noted on mid 1¾ left front groin.
10.Grazed abrasion 12 x 5 cm noted on left front, outer aspect mid 1¾ left leg.
Internal Injuries: 11.Contusion 18 x 15 cm noted internal injuries on right and left fore head scalp, right frontal, adjoining parietal scalp internal aspects noted. 12.Contusions bother frontal lobes right parietal lobe brain, multiple potechial hemorrhage in white matter brain, congested edematous. 13.Fracture C 4 cervical vertaboge with injury to spinal card with contusion para vertical muscles noted. All injuries dark brown except noted.
Visra was sent to RFS.L and they given opinion pending final opinion. Ex. P12 is the
Preliminary report of P.M certificate. ExP13 is the note fore sending visra to RFSL.
48.During further chief examination of P.W.11, he deposed that he collected Vicera, preserved for chemical analysis.
1. Stomach and intestina with contents.
2. Liver, Kidney.
3. Blood.
4. Example Solusion. For Semen /Spermatozoa swabs, Samvars from Vagina, cervix body of uterus from vulva and sent to chemical analysis for report. Subsequently report might have been received. So, he sent all the above samples to RFSL through police.
27 49. During further chief examination P.W.11 deposed that he has issued final report basing on F.S.L. Report of Hyderabad and that the deceased P. Lakshmi @ Korabatti would appear to have died of spinal card injury due to fracture C-5 neck vertebrae associated with head injury. Ex.P.14 is his final opinion.
50.By virtue of the above evidence, what the prosecution is able to establish is that A.1 and A.2 were not impotent. Further the cause of the death of the deceased appears to be of spinal card injury due to fracture of C-5 neck vertebrae associated with head injury. Ex.P.14 is his final opinion. So by virtue of the above the prosecution is able to establish that the deceased appears to have died on account of the injury sustained by her but what is material here is who caused the said injuries to the deceased and who committed the rape on the deceased. By virtue of the medical evidence, the possibility of recently sexual intercourse can not be excluded. It is clear from the evidence of P.W.10 coupled with Ex.P.9 final opinion. It is to be noticed that the investigating agency claimed that it obtain some nail clippings of the accused and spermatozoa of the accused and sent the same for chemical examination. As seen from Ex.P.17 the Andhra
Pradesh Forensic Science Laboratory, Hyderabad report human semen and spermatozoa are detected in item Nos.3 and 7 but their blood group could not be determined. Item No.3 is whitish turbid liquid of Jonnapati Srinu. Item NO.7 is whitish tubid liquid of Thota Mahesh. But their blood group could not be determined as per the oral evidence and Ex.P.17. According to Ex.P.17 human blood is detected in item No.4 and 8 but their blood group could not be determined. Item
No.4 is Reddish tubid liquid of T. Mahesh and Item NO.8 is Reddish turbid liquid. It is to be noticed that by virtue of the above virtually there is no link to connect the blood group of A.1 and A.2 with that of the APFSL report under Ex.P.17. According to Ex.P.8 it is also Andhra Pradesh Forenisc Science Laboratory, Hyderabad report dt.9.6.2011 relating to the material objects and according to it human blood is detected on item Nos.2, 3, 4 and 13 but their blood group could not be determined. Here I would like to make it clear that item Nos.2, 3, 4 and 13 are A
Khakhi colour shaluva, A white colour mat, A maroon colour saree with white colour design marked and A piece of gauze cloth. They are said to be of deceased.
28
According to it human semen and spermatozoa are detected on item No.6. Item
NO.6 is an yellow colour cotton petty coat. The semen and spermatozoa are not detected on item Nos.2 to 5 and 7 to 12. It is to be noticed that according to the medical evidence the Medical Officer obtained some material from Vagina of the deceased while she was alive, preserved the same and sent to chemical examination. According to Ex.P.8 except on petty coat only semen and spermatozoa are not detected on item Nos.2 to 5 and 7 to 12. The opinion of the Medical Officer is that the recent sexual intercourse by the deceased can not be ruled out. The above is not sufficient to connect the accused with the offence in question. It is to be noticed that there is nothing in the medical evidence except the potency certificate of A.1 and A.2 to connect them with the offence in question. It is not that the investigating agency ascertained the blood grouping of A.1 and A.2 out of the spermatozoa found on the petty coat of the deceased. What the prosecution is able to prove by virtue of the medical evidence is that A.1 and A.2 were not impotents and that the deceased was died on account of the spinal card injury and head injury and that the recent sexual intercourse can not be ruled out. The fact that A.1 and A.2 were not impotent can not a basis to give a finding that they committed the offence in question. Virtually the evidence is missing as to who thrown the deceased from the terrace and who committed rape against her. The medical evidence itself is not pointing any guilt against the accused.
51.Coming to the evidence of P.W.5 he deposed that he is resident of
Visakhapatnam and he was a labour mastry. In the year 2010 he secured labour from Railway Quarters of Vizag. In these days the deceased Lakshmi from Orissa who was staying in Port Quarters was also one of the labopur worked under him.
The photos shown to him are the photos of said laxmi. She worked under him for a period of 3 months continuously and later was not coming to the work for one week.
On enquiry he came to know that she was subjected to rape by Chakligedda persons and she was in the K.G.H for treatment. She went to K.G.H and saw the said
Laxmi. Later she came to know that she died in the hospital while undergoing treatment. At the time of funeral ceremonies of Laxmi, he attended along with police who also obtained his signature on some papers. The police examined him.
29
So the evidence of P.W.5 is not advancing the case of the prosecution in any way.
52.Coming to the evidence of P.W.6 he is resident of Kancharapalem and he is labour Mastry. On 20-10-2010 Kancharapalem police called him and Majji
Nookaraju/ LW.11 and then they went to the Chakaligedda, Dayananda quarters by 4.00 P.M. The police taken the measurement and observed scene of offence and drafted scene of offence observation report where he and Nooka Raju put their signatures. Ex.P3 is the said scene of offence observation dt 20-10-2010 at 16.30 hours. On 24-10-2010 he also went to the mortuary of K.G.H, along with others and inquest report also prepared by police at Mortuary of K.G.H on that also he and others put their signatures. The cause of death was also noted in that inquest report. Ex.P4 is the said inquest report. The said inquest report was conducted over the dead body of the person found on photos shown to him.
53.It is to be noticed that Ex.P.4 is the inquest report and Ex.P.3 is the scene observation report. They can not be read in substantive evidence. It is to be noticed that the opinion of the inquest panchayatdars as regards the role of A.1 and
A.2 was only on the basis of the statement of the witnesses i.e., P.W.3 and P.W.13 recorded during the course of investigation. As this Court already pointed out, basing on the evidence of P.W.3 and P.W.13, it can not be held that their evidence had any admissibility. Their evidence can not stands to the test of scrutiny. So the evidence of P.W.6 about observation of scene of offence and inquest is not going to advance the case of the prosecution.
54.Coming to the evidence of relating to the investigation part, the prosecution examined P.W.14. He is A.S.I., in Clues Team. His evidence is that he is working as Assistant Sub Inspector, Clues Team since last 10 years. On phone contact from inspector of police of Kancharapalem, their clues team visited the
Railway quarters which is scene of offence in this case on 20-10-2010 around 2.30 pm. The police shown the scene of offence to them and asked them to collect the material objects if any at the scene of offence. Then they collected a Gunny bag, a plastic cover, Khaki colour cloth. M.O.1 is the Gunny Bag. MO.2 is the plastic cover
M.O 3 is the Khaki colour cloth (Shaluva). He also collected a saree from scene of offence and it is MO.4, M.O 5 is the black colour Chikkam (Money bag). He also 30 collected yellow colour petty coat and it is M.O.6. M.O.7 is the green colour blouse collected from scene of offence. He handed over M.O.1 to 7 to police. As this Court already pointed out the prosecution is not able to establish the blood grouping of the semen found on the petty coat of the deceased. There is no link in the evidence to establish the offence in question with the accused and the medical evidence is not proving the same. Under the circumstances, the evidence of P.W.14 is of no use to the case of the prosecution.
55.Coming to the evidence of P.W.15 he deposed that he is working as a
Constable in the Clues team since last 15 years and he is attending for photography. He and P.W.14 visited the scene of offence on 20-10-2010 where he taken photos for the scene of offence. He has given the said eight photos with CD to police. Ex.P.15 is the said photos with CD. As seen from Ex.P.15 two photographs shows the deceased. They are not at all proving the case of the prosecution in any way.
56.Coming to the evidence of P.W.19 he is the Investigating Officer.
According to him on 20-10-2010 he took up investigation in this case after receiving information about this case through P.W.18. Immediately he came to the Police
Station and received one F.I.R copy and perused the same and took up investigation in this case. He visited K.G.H and seen the victim Girl Lakshmi. P and asked about the incident who is talking in Oriya language. He with the assistance of P.W.2 recorded detailed statement of victim Laxmi, read over to the Laxmi with the assistance of P.W.2. He also examined and recorded the statement of P.W.2. He informed the clues team and a photographer to visit the scene of offence and he observed scene of offence and prepared a rough sketch and got photographed the scene. Ex.P2 is the rough sketch. Ex.P15 is the Photographs with C.D. He also videographed the scene with clues team in the presence of mediators and also seized one coffee colour shaluva containaing stains, hair particles, one Mica cover in the presence of clues team. The hair pieces collected from scene were sent to
R.F.S.L for examination and report. He secured the presence of P.W12 ,
M.Appanna/PW1 and a photographer S.Ramu, Examined and recorded their detailed statements. On the same day he filed a memo adding section of law u/s 376(g) IPC 31 and 307 of IPC. On 22-10-10 he secured the presence of N.Ramulamma/LW4 and recorded her detailed statement. On 23-10-2010 he received death intimation through PC 2917 of I Town P.S who is duty at K.G.H. After receiving the death intimation, he altered the section of law 376(2) (g) and 302 IPC and issued altered
F.I.R to court. Ex.P24 is the F.I.R submitted after death of deceased Lakshmi. He secured the presence of PW3 , P.W13, and P.W4 examined and recorded their statements. On 24-10-2010 he secured P.Daneswari/L.W.10 K.M. Nookaraju/L.W11,
P.W.6. P.W.3. P.W.13 and P.W4, K.Sonnu/LW6, P.W5 and conducted inquest over the dead body of Laxmi under Ex.P4. On 25-10-2010 Gynac Doctor gave a specimens and clothes of the victim Laxmi those are Saree/M.O.4 Blouse M.O.7 Petty coat
M.O.6 black colour Sikkam M.O.5. On 1-11-2010 he secured the presence of P.W17 and recorded his statement. He received P.M certificate under Ex.P12 on 7-11-2010 and on 12-11-2010 he sent Material objects to R.F.S.L. On 17-11-2010 on reliable information at about 5.00 P.m he arrested A-1 and A-2 and Kota Mahesh Juvenile conflict with law in the presence of mediators P.W.12 and P.W.8 and recorded their statements. As per the confession they shown their apparels in a flowing canal and so he could not seized those things. On 18-11-2010 A-1, A2 and other/Juvenile were sent to Hospital for examination and after examination he produced A-1, A-2
before III Metropolitan Magistrate, Visakhapatnam and Juvenile before II
Metropolitan Magistrate/Juvenile court. On 19-11-2010 he received specimens of
J.Srinu/A2 and Juvenile Mahesh from casualty Medical officer/P.W16. On 19-11-2010 he received age determination certificate of Juvinile Mahesh. On 15-12-2010 he sent material objects handed over by C.M.O., K.G.H to R.F.S.L and they received F.S.L opinion. Ex.P25 is the letter of advise enclosing the letter addressed to director of F.S.L.On 25-12-2010 C.M.O. K.G.H. Dr. Kusum Kumari/P.W9 handed over the material objects collected from A-2. On 6-1-2011 he sent the said objects to R.F.S.L., On 23-1-2011 he filed a memo before Magistrate court to record the 164 statement of Siva/P.W 17 and recorded his statement under EX.P.18. His successor took up further investigation.
57.According to P.W.20 he took up investigation in this case after he joined as Inspector of Police, Kancharapalem from P.W.19 who completed 32 investigation. After verification of investigating done by P.W.19 and on consultation with A.P.P., he filed charge sheet against both the accused.
58.It is to be noticed that the evidence of P.W.18 to 20 can not be a basis to this Court to say that A.1 and A.2 were purporters of the offence in question in the light of the detailed reasons furnished supra. The prosecution is relying on certain circumstances i.e., P.W.1 and 12's coming to the scene of offence and found the deceased in a precarious condition and their lifting her to the hospital. Their evidence does not disclose anything against the accused. The prosecution is relying on certain circumstances that P.W.2 translated the statement of the deceased from
Oriya language to Telugu. P.W.2 did not support the case of the prosecution. There is nothing in the evidence of P.Ws.1 and 2 to fasten the criminal law against the accused. The prosecution is relying on the circumstances that P.W.3 came to know about the incident from her mother and her mother revealed the names of Durga,
Srinu and Mahesh to her. As this Court already pointed out the above said contention is not proved by the prosecution in the light of the detailed reasons furnished supra. The prosecution is relying on confessional statement of A.1 and
A.2 which is inadmissible in evidence. The prosecution is relying on extra judicial confession which they failed to prove. There are no circumstances proved by the prosecution as to how A.2 ventured to give such extra judicial confession. Not only it has been proved by the prosecution and even there are no probable circumstances for allegedly giving such a statement by A.2. Absolutely there is no legally admissible evidence adduced by the prosecution to prove the guilt of the accused. Basing on the evidence let in by the prosecution, it can not be held that
A.1 and A.2 committed gang rape on the deceased by name Lakshmi and thrown away her from the terrace of the building and again they committed rape on the deceased. Though the deceased appears to have died on account of head injury and spinal card injury as per the medical evidence on record, there is no convincing evidence to connect the accused with the offence in question. Hence, I hold that the prosecution has miserably failed to prove the charges framed against the accused 1 and 2 as such the accused 1 and 2 are liable to be acquitted. The points are answered accordingly.
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59.In the result, the accused Nos.1 and 2 are not found guilty of the charges under Section 376 (2)(g) and 302 IPC and they are acquitted of the same under Section 235(1) Cr.P.C., M.Os.1 to 7 shall be destroyed after appeal is over.
A.1 and A.2 shall be released forth with if they are not required in any other case.
Dictated to the Personal Assistant, III Addl. District Court, transcribed
by him, corrected and pronounced by me in open Court this the 31st day of March, 2015.
III Additional District and Sessions Judge -cum-VI Addl. District Judge, Mahila Court Visakhapatnam.
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1
CALENDER AND JUDGMENT
10/2012 CC
CASE TRIED BY SPECIAL JUDGE FOR SPE and ACB CASES, VISAKHAPATNAM.
D A T E OF: OFFENCE … 19-11-2010 REPORT OR COMPLAINT 18-11-2010 APPREHENSION OF ACCUSED 19-11-2010 RELEASED ON BAIL 23-11-2010 COMMENCEMENT OF TRIAL 15-12-2014 CLOSE OF TRIAL 30-04-2015 SENTENCE OR ORDER 04-05-2015
EXPLANATION FOR DELAY AND REMARKS:- Accused Officer appeared on receiving summons and copies of case documents are supplied. Charges under Sec.7 and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act, 1988 are framed against the Accused Officer on 7-8-13. The Special Public Prosecutor for ACB Cases, Vizianagaram Range appeared for the Complainant and of Sri G.V.P.B.S.N.Murthy and Smt. M.V.S.S. Naga Sudha, Advocate appeared for Accused Officer. During the course of trial PW1 to PW7 are examined and Exs.P1 to Ex.P.18 and MOs.1 to 12 are marked on behalf of the prosecution. During cross examination of P.W.3 Ex.D.1 and D.2 are marked on behalf of defence. AO is examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which the A.O denied the incriminating circumstances and stated that he has defence witnesses and that he would file written statement. When the case was coming for the evidence of AO, the learned counsel for AO represented no defence evidence on behalf of AO. Arguments on both sides heard on 30-4-2015 and posted to this day i.e., 4.5.2015 for Judgment. Hence, the delay.
JUDGMENT IN CALENDER CASE NO.10/2012 ON THE FILE SPECIAL JUDGE
FOR A.C.B. CASES, VISAKHAPATNAM
COMPLAINANT: State Represented by the Deputy Superintendent of Police, Anti Corruption Bureau, Vizianagaram Range, Vizianagaram
NAME OF THE ACCUSED: Dr. Vompolu Subhadra, w/o Veerabrahma Chari, 54 years, RMO (i/c) Mother and Child Health Hospital (Ghosha Hospital), Vizianagaram, R/o Besides M.R.O's Office, Burilipeta, Vizianagaram
FFENCES: O U/Ss. 7 and 13(1)(d) r/w 13 (2) of Prevention of Corruption Act, 1988 against the accused
FINDING OF THE COURT:- AO IS FOUND NOT GUILTY of the charges U/s.7 and 13 (1)(d) r/w 13 (2) of Prevention of Corruption Act and she is acquitted of the same under Section 248 (1) Cr.P.C., SENTENCE: In the result, the AO is found not guilty of the charges under Section 7 and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act and she is acquitted of the same under Section 248 (1) Cr.P.C., M.Os.1 to 10 and M.O.12 shall be destroyed and M.O.11 cash of Rs.8,000/- (Rupees Eight Thousand Only) shall be confiscated to state as it is mentioned in the charge sheet that P.W.1 was reimbursed with bribe amount after appeal time is over. The bail bonds of AO shall remain in force for a period of six months under Section 437(a) Cr.P.C.,
III Additional District and Sessions Judge -cum-Special Judge for SPE & ACB Cases Visakhapatnam.
2
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF SPE & ACB CASES:
VISAKHAPATNAM
Present:A.V. Ravindra Babu, Spl. Judge for SPE & ACB Cases -cum-III Addl. District Judge Visakhapatnam. Monday, the 4th day of May, 2015.
C.C.No.10/2012
Between: State Represented by the Deputy Superintendent of Police, Anti Corruption Bureau, Vizianagaram Range, Vizianagaram …Complainant And: Dr. Vompolu Subhadra, w/o Veerabrahma Chari, 54 years, RMO (i/c) Mother and Child Health Hospital (Ghosha Hospital), Vizianagaram, R/o Besides M.R.O's Office, Burilipeta, Vizianagaram … Accused Officer
This case is coming on 30.4.2015 for final hearing before me in the presence of learned Special Public Prosecutor for ACB Cases, Vizianagaram for complainant and of Sri G.V.P.B.S.N. Murthy and Smt. M.V.S.S.Naga Sudha, Advocates
for the Accused Officer and having stood over for consideration till this day, this
Court delivered the following:
J U D G M E N T
The State represented by the Deputy Superintendent of Police, Anti
Corruption Bureau, Vizianagaram Range Vizianagaram filed a charge sheet against the Accused Officer namely Dr. Vompoulu Subhadra (who will herein after be referred as AO for the sake of convenience) in Cr.No.16/RCT-ACB/VZM/2010 of Anti
Corruption Bureau, Vizianagaram Range, Vizianagaram U/sec. 7 and 13(2) r/w 13(1)
(d) of Prevention of Corruption Act, 1988 alleging in substance that the A.O joined in
Government Service as Civil Assistant Surgeon in Government Hospital, Saluru on 21.4.1990. She got promotion as Deputy Civil Surgeon on 23.10.2000 and worked from 1.2.2001 to 19.11.2010 as Incharge Resident Medical Officer, Mother and Child
Hospital, Vizianagaram. By virtue of the post held by her, she falls under the category of public servant as defined under Section 2 © of Prevention of Corruption
Act, 1988.
02.The defacto complainant i.e., L.W.1 Gudla Satyanarayana lodged a complaint stating that he has been working as Diet Contractor of Mother and Child
Health Hospital (Ghosha Hospital), Vizianagaram for the last five years. He submitted the diet bills for the months of April, 2010 to October, 2010 for
RS.1,79,000/-. The office staff of the hospital prepared a cheque for Rs.1,76,926/- after deducting the income tax. On 4.11.2010 they submitted a cheque to L.W.4 3
DR.B. Venkata Ravi Chandra, who signed on the cheque and forwarded to the AO for her signature. On the same day i.e., on 4.11.2010 L.W.1 met AO in her office and requested her to sign on the cheque and to hand over the same to him, for which she demanded an amount of Rs.10,000/- as bribe and when he expressed his inability to pay such huge amount as bribe, she bargained and reduced the same to
Rs.8,000/-. Thereafter for the purpose of overcoming the audit objections, on 10.11.2010 she called him and handed over the cheque for Rs.1,76,926/-. She did not sign in the daily diet bill book from 25.10.2010 as L.W.1 did not pay the demanded bribe to her and she also threatened that unless and until the demanded bribe is paid, she would not put her signature in the daily diet bill book. He (L.W.1) reluctantly agreed to pay the demanded bribe and approached L.W.9 D. Ravi Babu,
Deputy Superintendent of Police on 18.11.2010 at about 4.00 p.m., and presented a written report for taking necessary action against the AO and the same was registered as a case in Cr.No.16/RCT-ACB/VZM/2010 under Section 7 of Prevention of
Corruption Act, 1988 on 19.11.2010 at 9.00 a.m., after verifying the reputation of AO and contents of the complaint. During the course of trap, L.W.9 requisitioned the services of L.W.2 Maganti Arjuna Rao and L.W.3 Pakki Jagadeswararao to act as mediators. He (L.W.9) conducted pre trap proceedings in the office of Dy.S.P., ACB,
Vizianagaram Range on 19.11.2010 from 9.30 to 11.00 a.m., in the presence of mediators and organised a trap against AO.
03.During the course of trap on 19.11.2010 at about 1.00 p.m., L.W.1 approached AO in her office at Ghosha Hospital, Vizianagaram and on seeing L.W.1 the AO further demanded the proposed bribe of Rs.8,000/-. L.W.1 responded positively and gave Rs.8,000/- to the AO and the AO accepted the tainted amount with her right hand, counted with both hands and called the duty doctors L.Ws.5 to 7 i.e., Dr. D. Kiranmai, Dr. Meesala Venugopal and Dr. A.V. S. Usha Rani and distributed the cash of Rs.2,500/-, Rs.1,000/- and Rs.1500/- respectively in total
Rs.5,000/- to them through L.W.1 by saying that the amount is pertaining to diet charges for the October, 2008 to March, 2009 and kept the remaining cash of
Rs.3,000/- in her book which was laying on her table. L.W.4 Dr. B. Venkata Ravi
Chandra, Medical Superintendent was also present during the disbursement of 4 tainted amount to L.Ws.5 to 7. Thereafter, L.W.1 went out from the office of AO and gave the pre-arranged signal to PC 94 G. Venkata Rao. The Dy.S.P., i.e., L.W.9 and other tap party rushed to the office room of the AO and got conducted chemical test to the AO and L.Ws.5 to 7 and seized the resultant solutions in the presence of mediators and L.W.4. L.W.9 also seized the bribe amount of RS.3,000/- at the instance of AO and the remaining amount of Rs.5,000/- from the doctors. He seized
Diet Distribution book, Attendance register, Cash cum Cheque Drawal register,
Proceedings of Joint Commissioner (General), A.P.V.V.P., Hyderabad, etc., from the office of RMO, Ghosha Hospital, Vizianagaram when they were produced by AO. He examined L.Ws.4 to 7 who were present at the office room of AO and recorded their detailed statements under Setion 161 Cr.P.C., He arrested AO on 19.11.2010 at 7.00 p.m., and produced before her before this Court for judicial custody. Later she was enlarged on bail and released from Central Prison, Visakhapatnam on 23.11.2010.
The bribe amount of RS.8,000/- was reimbursed to L.W.1 vide HOC No.1/B1-
ACB/2011, dt.25.7.2011. The Investigation revealed that the AO while working as
RMO (i/c) Mother and Child Health Hospital (Ghosha Hospital), Vizianagaram demanded and accepted the amount of RS.8,000/- as bribe from L.W.1 on 19.11.2010 as an illegal gratification for doing official faovur i.e., 'for recommending the Diet Bills for payment for the period from 27.10.2010 to 14.11.2010 and 17.11.2010 to 18.11.2010 and for the amount received from 4/2010 to 10/2010 and to sign in the daily diet bill book. Hence, she is liable to be punished under Section 7 and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act, 1988. The
Government of Andhra Pradesh issued G.O.Ms.No.38, dt.16.2.2012 to prosecute the
AO in a Court of Law for the offences punishable under Section 7 and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act, 1988.
04.On perusing the charge sheet and material available on record, this
Court taken cognizance against AO and issued summons to her. On appearance of
AO before this Court, copies of case documents are furnished as required under
Section 207 Cr.P.C.,
05.By following the procedure under Section 239 Cr.P.C., charges under
Section 7 and 13 (2)read with 13 (1)(d) of Prevention of Corruption Act are framed 5 and explained to the AO, for which the AO denied the charges, pleaded not guilty and claimed to be tried.
06.During the course of trial, on behalf of the prosecution P.Ws.1 to 7 are examined and Exs.P.1 to P.18 and M.Os.1 to 12 are marked. During the course of cross examination of P.W.3 Ex.D.1 and D.2 are marked on behalf of the defence.
After the closure of the evidence of the prosecution, the A.O is examined under
Section 313 Cr.P.C., with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which the A.O denied the incriminating circumstances and stated that she has defence witnesses and that she will file written statement.
07.The AO got filed a written statement contending in substance that she discharged her duties with all honesty and integrity. Her services have been appreciated by one and all including District Coordinators and Commissioner of Vidya
Vidhana Parishad of A.p., Her father who recently passed away at the age of 90 was a freedom fighter. She was brought up by his father who taught her to render free services to the poor and they are against corruption. She took charge as in-charge
RMO on 1.9.2010 as the regular RMO was retired on 31.8.2010. She was not having any Administrative experience by then. After she took charge a news was reported in Sakshi Daily News paper that the milk supplied by P.W.1 was adulterated and she being responsible Medical Officer checked the milk by using lacto-meter and found that the milk supplied by P.W.1 to the patients contains 80-95% of water. She warned him several times and also made remarks in the diet bill book maintained by him. It was also brought to the notice of their Superintendent Dr. Ravi Chandra.
P.W.1 with an intention to escape from him, used to deliver milk to be supplied to the patients to the Head nurse or to the staff who ever used to be present. There is no mandatory that he must obtain her signature as R.M.O., in the said diet bill book. He know that if it were checked by her there would be complications like writing remarks in the book etc., as such he stopped getting the diet book to her. The doctors have decided to take their diet charges since they have not been taking diet from P.W.1.
The reasons for not taking diet supplied by the diet contractor was that the quality used to be not good and they never supplied as per the prescribed diet. This practice 6 was in vogue even prior to his joining. There was no practice of supplying diet to the doctor by the diet contractor and that the diet contractor after getting the bill amount used to pay some lump sum amount to the doctors which need to be distributed among the four doctors as per their shares. In those circumstances, he asked P.W.1 to pay the diet charges as he has been misappropriating without supplying diet as well as diet charges to the doctors. It was known to all doctors. It is false to say that she demanded Rs.10,000/- as bribe and reduced it to Rs.8,000/- for signing on the bill. It is false to say that she handed over cheque on 10.11.2010 to him in view of the audit objection. No audit has taken place during that time.
The evidence of P.W.1 that she (AO) did not sign in the daily diet bill book from 25.10.2010 on the ground that the bribe amount of Rs.8,000/- was not paid to him is also false. The cheque will be delivered by the concerned staff in accounts section but not by her. As RMO she only sign as a joint signatory. On 19.11.2010 P.Ws.3 to 6 were present in his chamber. P.W.1 informed in the presence of P.Ws.3 to 6 that he brought diet charges payable to them and on that he asked P.W.1 to distribute the same to P.Ws.4 to 6 and as per her instructions he gave Rs.1500/- to P.W.5,
Rs.2,500/- to P.W.4 and Rs.1,000/- to P.W.6 and kept Rs.3,000/- on her table. The said P.W.4 to 6 also received towards died charges. Later the amount will be again shared among other doctors who attended night duties. She also explained the same to the Dy.S.P., in the presence of P.W.3 to 6. She is unnecessarily made a scape goat by P.W.1 with the help of ACB and she is innocent.
08.When the case was coming for the evidence of AO, the learned counsel for AO represented no defence evidence on behalf of AO.
09.Now in deciding the charges framed against the AO, the points that arise for consideration are as follows:
1. Whether the AO was a public servant within the meaning of Section 2 © of Prevention of Corruption Act, 1988?
2. Whether the prosecution has proved that the investigating agency obtained a valid sanction under Section 19 of Prevention of Corruption Act against AO for her prosecution before the Court for the offences alleged under Section 7 and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act?
7
3. Whether the prosecution has proved that the AO demanded the defacto complainant (P.W.1) for bribe of Rs.10,000/-and later reduced it to Rs.8,000/- prior to the date of trap and also demanded and accepted the same from P.W.1 for the purpose of doing official favour in the manner as alleged by the prosecution?
4. Whether the prosecution has proved the offence of criminal mis-conduct against the AO within the meaning of Section 13 (1)(d) punishable under Section 13 (2) of Prevention of Corruption Act?
5. Whether the prosecution has proved the charges framed against the AO beyond reasonable doubt?
10. Point Nos.1 and 2:
The fact that the AO was working as a public servant and she received her salary from the Government account is not in dispute. The learned Special Public
Prosecutor contended that the AO was a public servant within the meaning of Section 2 © of Prevention of Corruption Act and that the validity of the sanction marked by the prosecution under Ex.P.18 is also not in dispute and Ex.P.18 proves a valid sanction.
11.The learned defence counsel in his arguments did not dispute that AO was a public servant within the meaning of Section 2 © of Prevention of Corruption
Act and further he did not dispute the validity of Ex.P.18.
12.Here the prosecution got marked the sanction order under Ex.P.18 through the evidence of P.W.7 the Investigating Officer. According to P.W.7 he prepared draft final report and submitted the same to D.G., ACB, Hyderabad along with model sanction order and charge sheet. After receipt of sanction order by
L.W.10 N. Venkateswararao, the then Dy.S.P., ACB, Visakhapatnam L.W.11 K.C.S.
Raghu Veer filed charge sheet. Ex.P.18 is the sanction order in G.O.Ms.No.38, dt.16.2.2012. During the course of cross examination the genuinenity or otherwise of Ex.P.18 is not in dispute. As seen from Ex.P.18 it is GO.Ms.No.38, dt.16.2.2012. It shows the application of mind by the sanctioning authority to the allegations in the draft final report sent by the investigating agency. It has been signed by the
Principal Secretary to Government and it has been issued by order and in the name
of the Governor of Andhra Pradesh. Hence, I hold that Ex.P.18 is not at all in dispute as such the prosecution has proved that the AO was a public servant within the meaning of Section 2 (c)of Prevention of Corruption Act and the investigating 8 agency obtained a valid sanction under Section 19 of Prevention of Corruption Act for prosecution of AO under Section 7 and 13 (1)(d) read with 13 (2) of Prevention of
Corruption Act. The points are answered accordingly in favour of the prosecution.
13. Points 3 to 5:
The learned Special Public prosecutor in his written arguments contended in substance that the prosecution in support of its case examined P.Ws.1 to 7. According to Ex.P.1 AO demanded bribe of Rs.10,000/- on 4.11.2010 and on bargain reduced it to Rs.8,000/- and agreed to accept the same for doing official favour i.e., to sign in the daily diet bill book. P.W.1 further spoken about the contents of Ex.P.1 report lodged by him. The evidence of P.W.1 has corroboration from the contents of Ex.P.1 as such the prosecution has proved the acquisition of initial demand. The AO played substantial role in negotiating the bribe amount. The prosecution proved the demand. There is no nothing in the evidence to show that
P.W.1 has any grouse or enmity against AO. AO was successfully trapped on 19.11.2010 and part of bribe money i.e., Rs.3,000/- was recovered from the surface of table at the instance of AO and the Dy.S.P., seized demanded bribe amount of
Rs.8,000/-. P.W.1 in his evidence before this Court spoken about events regarding post trap relating to his meeting with AO in her office and the demand made by by her and his payment of Rs.8,000/- to AO and the AO's handing over the amount of
Rs.5,000/- out of Rs.8,000/- to him and requested him to distribute the same among
P.Ws.4 to 6. In so far as official act is concerned as per the evidence of P.W.3 the diet charges bill of patients was pending for payment from April, 2010 to October, 2010 to P.W.1. On 4.11.2010 P.W.3 signed the cheque (Ex.P.10) since it is joint account standing in the name of P.W.3 and AO, the same was sent to AO for her signature. AO informed P.W.3 that she would sign and issue cheque to P.W.1 and on 8.11.2010 P.W.1 approached P.W.3 and informed that the cheque was not issued to him and that AO was not signing on patients diet distribution bill. The evidence of
P.Ws.2 and 3 and Ex.P.10 and P.13 proves the existence of the official act to be done by AO. The reaction and confusion of AO when P.W.7 and his party rushed into the office of AO is inconsistent with her innocence. How a few minutes earlier the tainted amount which was with P.W.1 was found in possession of AO when 9 immediately after the raid party enter into the office room of AO. The tainted amount was recovered from the surface of table at the instance of AO. Hence, a presumption under Section 20 of Prevention of Corruption Act is to be drawn from direct and circumstantial evidence. P.Ws.2 and 7 are disinterested official witnesses who are mediator and investigating officer. There is no suggestion for impeaching their credibility or trustworthiness. The evidence of P.W.2 and 7 has worthy of credence. In support of his contention he relied on AIR 1998 Supreme Court 1474 in State of Uttar Pradesh Vs. Zakulla. He further relied on 2004 (2) ALD (Crl) 486 S.C in State of Andhra Pradesh Vs. R.Jeevaratnam and another decision in 2001 (1) ALT (Crl) 139 SC in M.Narasingarao Vs. the State of A.P., and argued that the above said decisions also dealt with presumption under Section 20 of Prevention of Corruption Act and it is applicable to the present case. The accused failed to probablise his defence. AO is trying to come out from the situation by taking plea that P.W.1 distributed diet charges. Though P.WS.4 to 6 admitted in cross examination that there was no practice of taking diet charges from the contractor and the diet contractor used to pay the charges through RMO, but P.W.4 to 6, patients and other medical officers are entitled to take diet only but not diet charges. The practice in vogue does not absolve the AO from the liability of taking bribe. P.Ws.4 to 6 had no knowledge that the amount distributed by AO is bribe amount. Hence, they were not shown as accused by the prosecution. The burden lies on the accused to rebut the presumption in view of stand taken by AO that the amount received by her and other duty doctors was diet money. The AO has not shown by preponderance of probability that P.W.1 paid diet money. The fact that the
AO received the bribe money is fully established beyond reasonable doubt. In any way acceptance of illegal gratification has been proved against the AO. The prosecution has established the essential ingredients of Section 7and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act as such the AO is liable to be convicted of the same.
14.The learned counsel for the AO contended that the AO has nothing to do for delivery of the cheque signed by her to P.W.1 and that it is the duty of the clerical staff and further AO is not at all concerned to sign in the daily diet bill book. P.W.1 10 received his dues well in advance much prior to the trap. According to P.W.1 and
Ex.P.1 because there was an audit held and that in anticipation that the audit staff may raise an objection, AO delivered cheque to P.W.1 though she demanded bribe.
According to the evidence of P.W.3 there was no audit during the period of trap.
P.W.7 did not investigate whether audit was held or not. P.W.1 did not say that he met P.W.3 on 8.11.2010 and he was not given the cheque. According to P.W.3 P.W.1 approached him on 8.11.2010 and informed that the cheque was not issued to him and that AO was not signing every day in inpatients diet distribution book. P.W.3 signed on the cheque on 4.11.2010 after preparation and sent the same to AO according to the chief examination of P.W.3. As per cross examination of P.W.3 after he signed on the cheque it will be given to the concerned clerk who prepares it and in turn he will place the same before AO for second signature. After signature by
AO she has to hand over the cheque to the consent clerk who will deliver the same to the party. 5.11.2010, 6.11.2010 and 7.11.2010 are public holidays. So AO is not concerned to deliver the cheque to P.W.1 and it is the concerned clerk who has to deliver. It is not the case of the prosecution that after signing the cheque AO retained with her or given the same to the concerned clerk with instructions not to hand over the same to P.W.1. As per the evidence of P.W.1 it is clear that the AO is not the concerned person to deliver the cheque to P.W.1. P.W.1 did not state before the Magistrate that AO stopped signing in diet distribution book as he did not pay the bribe amount. P.W.1 was supplying adulterated milk and bad quality of diet to the patients. AO also made adverse remarks in Ex.P.4. Though P.W.1 denied it initially later admitted the same. Even according to P.W.1 he was supplying diet through his family members who had to obtain acknowledgements. According to Ex.P.4 there were signatures of different staff in the hospital. The fact that P.W.1 was supplying adulterated milk was also published in daily news papers. There is no question of obtaining signatures of AO in the daily diet distribution book as the staff used to sign and further the family members of P.W.1 used to supply the diet on behalf of P.W.1.
Ex.P.4 printed book maintained by P.W.1 was not supplied by hospital authorities.
P.W.3 admitted that it is not that AO has to sign the said book invariably. According to P.W.3 AO has to cross check the entries. P.W.3 admitted about the complaints 11 against P.W.1 for supply of inferior quality of diet. The prosecution has miserably failed to prove that the AO has to sign in Ex.P.4 and for that purpose AO demanded the amount. P.W.1 never stated before P.W.3 that AO demanded bribe of
Rs.10,000/- for signing in Ex.P.4 and that she reduced the bribe amount to
Rs.8,000/-. He kept quite without revealing the same to P.W.3. If the allegation is correct, he would have revealed the same to P.W.3. The prosecution has failed to prove the allegation of demand of bribe. AO spontaneously in two occasions explained in post trap that P.W.1 paid the amount towards diet charges. P.Ws.3 to 6 corroborated the plea of AO. It is the prosecution who lead the evidence through
P.W.4 to 6 that P.W.1 informed on questioning that he brought diet charges. If really the amount is towards bribe AO would have taken the same in the absence of P.W.3 to 6. If it is bribe why should she ask P.W.1 to distribute the amount to P.Ws.4 to 6.
Why P.W.1 kept quite when AO asked him to distribute diet charges, but in the court he deposed that he never paid diet charges and he used to supply diet only. It shows the conduct of P.W.1. The duty doctors have to take diet only supplied by the diet contractor but the evidence on record shows that there was no practice of taking diet and they used to receive the diet charges. In fact the above three doctors were charge sheeted departmentally and after having satisfied with their explanations, the action against them was dropped. P.W.7 in cross examination admitted that P.W.4 to 6 stated before him that they used to receive cash instead of diet since long and on the date of trap also they received so from P.W.1 as directed by AO in the presence of P.W.3. Ex.D.1 and D.2 shows that P.W.3 conducted enquiry and submitted a report and it was endorsed by the superiors. Virtually the prosecution has miserably failed to prove the case against the AO and the AO is liable to be acquitted. The learned counsel for AO in support of his contentions relied on 2014 (1) Crimes
Page 289 (AP) and 2003 SCC (Cri) page 1236.
15.The Special Public Prosecutor in his reply to the arguments of counsel for AO contended that the amount which was retained by AO to a tune of Rs.3,000/- on the date of trap after distributing the same to P.Ws.4 to 6 is the part of the bribe amount and P.Ws.4 to 6 had no knowledge that AO collected Rs.8,000/- towards bribe and later she distributed to P.W.4 to 6 towards diet charges.
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16.In view of the above rival contentions advanced and in view of the essential ingredients of Section 7 of Prevention of Corruption Act, now this Court has to see firstly as to whether the prosecution has proved that the official favour of
P.W.1 was pending with AO in the manner as alleged by the prosecution.
17.P.W.1 is the defacto complainant. P.W.2 is the mediator to the pre and post trap proceedings. P.W.3 is the then Medical Superintendent, MCH Hospital,
Vizianagaram. P.Ws.4 to 6 were the duty doctors who were said to be present at the time of trap. P.W.7 is the Investigating Officer.
18.Now coming to the evidence of P.W.1 his evidence in substance is that he is resident of Vizianagaram. Previously he used to supply diet to GOSA Hospital,
Vizianagaram on contract from 2006 to 2011. He know AO, LW2. M. Arjuna Rao and LW3 P.Jagadeswara rao. 3 months prior to his giving report ACB, AO joined as in- charge Resident Medical Officer in GOSA hospital, Vizianagaram. The bills pertaining to his work in GOSA Hospital were due from April, 2010 to October, 2010. He submitted the bills to the hospital clerk for the above said period for an amount of Rs.1,79,000/-. After deducting the income tax an amount of
Rs.1,75,000/- was due to him. On 04-11-2010 after getting the signature of superintendent, GOSA hospital the bill reached before AO. On the same day he met
AO in connection with the said work. Then AO demanded him for bribe of
Rs.10,000/-. He expressed his inability to pay such amount. AO reduced the bribe amount to Rs.8,000/- for signing on the bill. On 10-11-2010 AO handed over the cheque to him in view of the audit objections. AO did not sign in the daily diet bill book from 25-10-2010. AO told him that she will not sign unless he pay the demanded bribe amount. As he had no intention to pay the bribe amount he went
ACB office, Vizianagaram on 18-11-2010 and presented a written report to ACB.
Ex.P1 is his report Dt. 18-11-2010. His evidence in so far as pre trap proceedings in substance is that accordingly on 19-11-2010 he went to ACB, Vizianagaram along with proposed bribe amount Rs.8,000/- (16x 500). He met the ACB, Dy.S.P. He asked him to wait out side for sometime. After some time he was called to inside.
The Dy.S.P. introduced two mediators with him and and vice versa. At the instructions of Dy.S.P. the mediators ascertained from him the genuineness of his 13 report. He confirmed the same as true before mediators. He produced cash of
Rs.8,000/- before mediators as per the instructions of Dy.SP. The mediators noted down its denomination and serial numbers in the proceedings. Again he was asked to wait out side for some time. After sometime he was called to inside. The
Dy.S.P asked him to produce his belongings. He removed hand kerchief from his trouser pocket and produced the same. At the instructions of Dy.S.P the constable
Venkata rao kept the amount of Rs.8,000/- in his left side shirt pocket. Dy.S.P.
instructed him not to touch the currency notes unless and until the AO demanded for the same and to pay the same to AO on further demand and to relay pre arranged signal to constable by wiping his face with hand kerchief indicating demand and acceptance of bribe by AO. The Dy. S.P instructed constable Venkata rao to follow him closely to receive the signal from him and to relay the same to Dy.S.P.
When the Dy.S.P, he and other trap members except PC who applied phenolphthalein powder to the currency notes rinsed their respective hand fingers in the chemical solution the colour remained unchanged. On the same day at about 11.30 a.m he, Dy.S.P and other trap member started from ACB office, Vizianagaram and reached Ambati sitram junction by 12 noon. He and constable got down from the vehicle. The Dy.S.P. reiterated the earlier instructions to them. He proceeded to the GOSA hospital being followed by Constable Venkata Rao. He found that AO went for rounds and she was not available in her seat. He waited there till 1.00pm.
At 1.00 pm AO came to her seat. He went to her seat. AO enquired him as to whether he brought the demanded bribe amount. He replied in positive. He handed over Rs. 8,000/- to AO. AO received the same with her right hand, counted the same with both hands and kept the amount on the table. Then AO returned back an amount of Rs. 5,000/- out of 8,000/- to him and requested him to hand over the said Rs.5,000/- to Dr. D.Kiranmai(2,500/-), Dr. Usha Rani(1,500/-) and Dr.
Venugopal(1,000/-). Accordingly he given the amount to the doctors. Then He came out and relayed the pre arranged signal to the constable. Then Dy.S.P and other trap member rushed to there and caught hold of AO. He was asked to wait out side for some time. After some time he was called to inside. The Dy.S.P enquired him and recorded his statement. The Dy.S.P confronted with him the version of AO 14 and he denied the same. Subsequently he gave his statement on 27-11-2010
before Magistrate. Ex.P2 is his statement under 164 Cr.P.C. which contains his
signature. Ex.P3 is the proceedings Dt. 21-10-2010 of Joint Commissioner (General), A.P. Vydya Vidhana Parishat, Hyderabad showing him as diet contractor.
Ex.P4 is the diet distribution book.
19.Turning to the evidence of P.W.2 his evidence is relevant in so far as seizure of certain documents are concerned. According to P.W.2 Ex.P7 is diet bill book. Ex.P8 is the Doctors attendance register. Ex.P9 is diet bill of the complainant. Ex.P10 is the cash cum cheque drawn book.
20.Coming to the evidence of P.W.3 who is examined by the prosecution on procedural aspects he deposed in substance that he has been working as Additional
Medical Superintendent, MCH block, District Hospital, Vizianagaram since June, 2012.
Previously he worked as Medical Superintendent MCH hospital, Vizianagaram from 17-01-2010 to June, 2012. He know AO and PW1. The AO worked as Deputy Civil
Surgeon and she was kept in charge for the post of resident medical officer from
September, 2010 i.e., after the retirement of Dr. Siva kumar on 31-08-2010. The diet charges bill of patients was pending for payment from April, 2010 to October, 2010 to PW1 for want of budget. On 04-11-2010 the cheque was prepared and he signed on it (Ex.P10). Ex.P9 bears his signature. Since it is joint account standing in his name and AO the same was sent to AO for her signature. AO informed him that she would sign and issue to PW1. On 08-11-2010 PW1 approached him and informed him that the cheque was not issued to him and also informed that the AO was not signing everyday on in patients diet distribution book. Again he orally instructed the AO to issue cheque to PW1. On 19-11-2010 he went to the room of
AO for discussing of hospital issue regarding Bio Medical waste disposal. Then PW1 entered in to the room at 1.00 pm. and told to AO that he came with some amount.
He delivered the amount to AO. At that time LW5 Kiranmai, LW6 Usha Rani and
LW7 Venugopal were present. PW1 went away after delivering the amount. Later
ACB personal entered in to the room and asked his designation. He revealed his designation. ACB asked him to leave from the room. He came to know through PW1 that AO demanded and accepted bribe from him. He was examined by ACB, 15
Dy.S.P. Ex.P13 is the proceedings Dt. 02.11.2010 issued by him and it bears his signature.
21.Coming to the evidence of P.W.7 the Investigating Officer, his evidence in so far as seizure of document is that during the post trap proceedings he seized the made up files produced by AO.(Ex.P7 to P10).
22.There is no dispute about the seizure of the documents as spoken P.W.2 and 7. It is to be noticed that certain answers spoken by P.W.1 and 3 are relevant to decide as to whether the official favour of P.W.1 in the manner as alleged by the prosecution is pending with AO. Turning to the evidence of P.W.1 in cross examination he deposed that he do not know whether audit inspection was conducted in GOSHA hospital, Vizianagaram. He did not state before Magistrate in 164 Cr.P.C. statement that audit inspection was conducted. On 08-11-2010 he informed to the superintendent Ravi chandra that the cheque was not issued to him and AO did not sign in the diet distribution book. He did not inform him that AO demanded bribe for Rs. 10,000/- for signing in Ex.P4 and that she reduced the bribe amount to Rs. 8,000/-. The bills and cheques used to be prepared in account section. After getting signatures of concerned superintendent or RMO the cheques have to be delivered to them from account section. There were two clerks in the account section. The accounts section will not work during holidays but the doctors will work in the hospital. He denied a suggestion that on 08-11-2010 itself he taken delivery of the cheque from office. The AO never written any adverse remarks for the food supplied by him in any record. Witness on seeing Ex.P.4 deposed that there were certain entries in Ex.P.4 as milk quality was not good and warned. He used to send the died distribution book to the hospital through his family members along with diet. His family members used to obtain acknowledgment from the hospital authorities in token of delivery of diet in Ex.P.4. He can not identify the signature of staff nurse and doctors in Ex.P.4.
23.Coming to the evidence of P.W.3, he in cross examination deposed that
PW1 or his deputies used to bring Ex.P4. Ex.P4 was not supplied by hospital. PW1 got printed the said book. Anybody who receives the diet used to sign Ex.P4. It is not that AO has to sign invariable. Occasionally she has to cross check the entries.
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AO took charge three or four months prior to the date of trap. There were complaints against PW1 for supplying inferior quality of diet to the patients and it was published news papers also AO reported the same to him. After he signed on the cheque it will be given to the concerned clerk who prepared it and in turn he will place the same before AO for second signature. After signatures by AO she has to hand over the cheque to concerned clerk who will deliver to the party. In public holidays the ministerial staff in the hospital will not attend. 05-11-2010, 06- 11-2010 and 07-11-2010 are public holidays. There was no audit during the period of trap.
24.According to P.W.7 the Investigating Officer in cross examination the diet distribution book was to be maintained by diet contractor. There were endorsements of AO in Ex.P4 that milk quality was not good. He did not examine any persons regarding audit. Witness says that as per PW1 audit was done.
25.Even according to P.W.1 or Ex.P.1 or the evidence it is quite clear that though the date of report of P.W.1 was on 19.11.2010 but the fact is that P.W.1 received the amount dues even according to him on 10.11.2010. According to the case of the prosecution that the cheque was prepared on 4.11.2010. According to the evidence of P.W.1 in cross examination the date of demand of bribe was only on 4.11.2010. It is admitted by P.W.3 during cross examination that 5.11.2010, 6.11.2010 and 7.11.2010 are happened to be public holidays. So the evidence of
P.W.1 that on 10.11.2010 AO handed over the cheque to him in view of the audit objections is not supported by P.W.3 who is examined by the prosecution on procedural aspects. Even according to the evidence of P.W.3 who is examined by the prosecution it is the duty of the clerk cadre to deliver the cheque after obtaining the signatures of P.W.3 and AO. According to the evidence of P.W.1 though he did not pay the so called demanded bribe of Rs.8,000/- or Rs.10,000/- to P.W.1 she delivered the cheque on 10.11.2010 because of the audit objections. This type of evidence of P.W.1 regarding the so called audit objection which was raised for not delivering the cheque to P.W.1 by AO etc., is not born out by any record. Whatever the reason may be the fact remained is that much prior to lodging of Ex.P.1, P.W.1 received the amount due to him from the hospital towards the diet supplied by him 17 to the patients on 10.11.2010 even according to him. It is the contention of AO that on 8.11.2010 P.W.1 received the cheque. However this contention is not born out by any record. So the very allegation in Ex.P.1 that AO demanded bribe for issuing the cheque and that because of the audit objection taken by the audit department AO was compelled to issue cheque to P.W.1 is not probablised. Though P.W.1 deposed about the so called demand of bribe but the allegation that AO delivered the cheque because of the audit objection though she demanded for bribe is not not at all proved by the prosecution. The evidence of P.W.3 is quite categorical there was no audit held during the said period. Now there remains an allegation in Ex.P.1 is as P.W.1 did not give the demanded bribe amount to AO, she refused to sign in diet distribution book. This is core allegation of the prosecution. So according to the contents of
Ex.P.1 and the evidence of P.W.1 the actual official favour of him pending before AO was regarding obtaining the signatures of AO daily in the diet distribution book. As this Court already pointed out what P.W.1 deposed is that AO told him that she will not sign unless he paid the demanded bribe and that AO did not sign in the diet distribution book from 25.10.2010. It is to be noticed that Ex.P.4 is the so called diet distribution book. The prosecution also marked EX.P.7 diet bill book. It is not that
AO has to sign in the diet bill book. It is to be noticed that Ex.P.7 does not contain column requiring the Resident Medical Officer to sign the same. So what P.W.1 means is that AO had to sign in Ex.P.4 the daily diet distribution book. As seen from
Ex.P.4 even according to the evidence let in it is a book got prepared by P.W.1 and it is not supplied by the hospital to P.W.1. Even it does not contain any specific column of Superintendent or any Medical Officer requiring to sign. However, as evident from the answers spoken by P.W.1 himself it is quite clear that according to his convenience he was sending diet to the hospital along with Ex.P.4 diet distribution book and his family members used to obtain acknowledgment from the hospital authorities in token of delivery of diet in Ex.P.4. He can not identify the signature of several nurse and doctors in Ex.P.4. According to the evidence of P.W.3 the then
Medical Superintendent it is not that AO has to sign in Ex.P.4 invariably. What P.W.3 deposed during the course of cross examination is that Ex.P.4 was not supplied by the hospital and P.W.1 got printed the same. Anybody in the hospital who received 18 the diet used to sign in Ex.P.4 and it is not that AO has to invariably sign in Ex.P.4.
Here there is evidence of P.W.1 during cross examination that AO made certain adverse comments that the milk quality was not good and he was also warned by
AO. He deposed that it is true that it had come in news papers that the patients agitated about the diet being supplied by them was not good in the months of
September and December, 2010. September 2010 was much prior to the date of rap.
It appears that AO as Resident Medical Officer could have signed in some occasions in Ex.P.4 regarding the quality of diet being supplied by P.W.1 and warned him for inferior quality of diet supplied by him but it does not mean that on each and every date she has to sign in Ex.P.4. Further it is not the duty of AO to prepare the cheque. Even according to the evidence let in by the prosecution the ministerial staff used to prepare cheque and used to obtain the signatures of P.W.3 and AO. There is no columns either in Ex.P.7 or in Ex.P.4 requiring that either the Superintendent or the AO had to sign in Ex.P.4. So when P.W.1 admittedly received the total amount due to him from the hospital on 10.11.2010 even according to him his evidence that
AO refused to sign in the concerned register because he did not pay the amount is not convincing. The prosecution in my considered view has miserably failed to prove that AO was duty bound to sign every day and that it is quite mandatory for AO. The evidence adduced is not at all convincing in this regard. According to P.W.1 it is quite clear that he used to supply diet to the hospital through his family members and according to P.W.1 his family members used to obtain acknowledgement from the hospital authorities in token of receipt of diet in Ex.P.4. As seen from Ex.P.4 it is not that any specified authority in the hospital alone shall sign in Ex.P.4. So Ex.P.4 contains different acknowledgments of different persons in token of receipt of diet to the patients. Under the circumstances, this Court is not convinced with the case of the prosecution that AO was duty bound to sign every day either in the diet distribution book or in the bill book. P.W.1 already received the amount due to him much prior to the date of trap and even before lodging Ex.P.1. The core allegation is that AO refused to sign in the daily diet distribution book or bill book. This is not at all probablised and proved by the prosecution in any way. In view of the above, I am of the considered view that the prosecution has failed to prove that the official favour 19 of P.W.1 in the manner as alleged by the prosecution was pending with AO.
26.Now this Court has to see as to whether the prosecution has proved the allegations of demand for bribe by AO prior to the date of trap and on the date of trap and acceptance of the same in the manner as alleged by the prosecution.
27.As this Court already pointed out P.W.1 in his evidence spoken about events in the post trap proceedings. During cross examination he (P.W.1) deposed that the diet charges for each doctor towards meals in the night was Rs.40/-. It is true that for the night duty doctors they have to supply Tiffen also in the morning for the said amount of Rs. 40/-( inclusive of night meals). Here I would like to make it clear that the prosecution marked Ex.P.3 proceedings which literally runs that P.W.1 was awarded with a contract for supplying diet to the inpatients and duty doctors of the hospital. So there was a practice of supplying diet to the patients and to the duty doctors by P.W.1 by virtue of the case of the prosecution and as per the contents of Ex.P.3. During further cross examination P.W.1 deposed that it is true that the doctors during the night duties were not taking the diet being supplied by them. He denied that the night duty doctors used to receive cash from them instead of receiving night meals. He denied a suggestion that as per Government GO they had to supply morning tiffin, lunch and dinner for the entire amount of Rs. 40/- per day to the doctors. He denied that the AO in consultation with duty doctors was informing him to pay diet allowance to her and the doctors as there was long pending dues to them in lieu of diet. On the date of trap he supplied diet to the patients in the morning personally. Generally the signatures of R.M.O., have to be obtained after completion of taking diet to patients. He did not obtain signatures in
Ex.P.4 on 19.11.2010. He know that Ex.P.4 contains the signatures of several staff.
When he went to hospital at 1.00 p.m, on the date of trap AO, Superintendent, Ravi
Chandra, Dr. Kiranmai, Usharani and Venugopal were present. He denied that when he entered into the office AO informed to the said doctors that he brought the diet charge and asked them to take the amounts from him and that then he distributed the amount to them. The Dy.S.P did not confront with him the version of AO and the above doctors. He did not inform to Dy.S.P that he already paid the diet charges in the previous month. He denied that the amount brought by him i.e., Rs.
20 8,000/- was only as per his convenience towards diet charges and that it was not fixed by AO. He denied that he laid a false trap against AO and that he is deposing false.
28.So by virtue of the answers spoken by P.W.1 his evidence means that there was no practice of paying diet charges to the duty doctors though there was practice of supplying diet to the duty doctors during night time. Under the circumstances, to appreciate the contention of the both sides in a proper perspective firstly I would like to give findings as to whether there was any practice of paying diet charges by the contractor to the duty doctors. This is crucial to be decided in the light of the specific defence of AO.
29.It is the contention of the defence that when the Investigating Officer
P.W.7 confronted with P.W.1 during post trap proceedings about the narrated version of AO that P.W.1 paid died charges to the duty doctors P.W.1 did not deny the practice but he narrated that he already paid the so called dies charges to the duty doctors much prior to the trap. Now admittedly during the course of cross examination though P.W.1 admitted that for the night duty doctors they have to supply Tiffen also in the morning for the said amount of Rs.40/- and that they have to supply to the duty doctors in the night but he is denying that there is any practice of paying diet charges to the duty doctors in lieu of cash. Admittedly as seen from
Ex.P.12 post trap proceedings there is a whisper that the investigating officer confronted with P.W.1 about the version of AO that he paid only diet charges to the duty doctors. What P.W.1 narrated is that he paid the so called arrears regarding the diet charges much earlier to the date of trap. Further the above said narrated version of P.W.1 when he was confronted by Dy.S.P., is also spoken by P.W.2 the mediator during cross examination. P.W.2 in cross examination deposed that it is true that P.W.1 informed to Dy.S.P., during post trap proceedings that he already paid the diet charges in the last month. Coming to the evidence of P.W.7 the
Investigating Officer he deposed in cross examination that P.W.1 revealed before him that previously he paid the diet charges to the duty doctors. So by virtue of the narrated version of P.W.1 during post trap proceedings when he was confronted with the version of AO by the Dy.S.P., and by virtue of the P.W.2 and P.W.7 it is quite clear 21 that the defence theory that P.W.1 was paying diet charges to the duty doctors in lieu of the diet supplied by him is probablised. For obvious reasons P.W.1 is not revealing
before the Court that he used to pay diet charges to the duty doctors in lieu of diet.
So the practice in vogue though it is not recognized by any government orders is that
P.W.1 the diet contractor was paying diet charges to the duty doctors in the hospital in lieu of the diet to be supplied by him towards night meal in the hospital for the duty doctors or towards Tiffen on the following day in the morning time. But obviously P.W.1 is not admitting the same in cross examination for the reasons best known to him. So the accused is able to probablise a theory that the duty doctors used to receive the diet charges from P.W.1 in lieu of the diet supplied by him is probablised.
30. Now coming to the actual defence theory that on the date of trap P.W.1 paid diet charges to AO to a tune of RS.8,000/-, this Court would like to make it clear that even according to the evidence of P.W.1 relating to post trap events when he entered into the office of AO, she enquired him about the bribe amount and he replied in positive and handed over Rs.8,000/- to AO. Then she received it with her right hand, counted the same with both hands and and called the duty doctors. She gave him Rs.5,000/- out of Rs.8,000/- and requested him to hand over the same i.e., Rs.2,500/- to Dr. D. Kiranmai, Rs.1500/- to DR.A.V.S. Usharani and Rs.1,000/- to Dr. M. Venugopal and accordingly he given the amount to them and he came out and gave pre arranged signal. Here, I would like to make it clear that in the post trap narrated version P.W.1 did not say that in accordance with the instructions of AO he distributed Rs.5,000/- among three doctors. However, he deposed the same
before this Court.
31.Now coming to the evidence of P.Ws.4 to 6, P.W.4 is the then Civil
Assistant surgeon, GOSHA hospital, Vizianagaram from November, 2008 to
November, 2010. She deposed that she know PW1. She know PW3, LW6 Usha rani and LW7 Venugopal. On 19-11-2010 at about 1 pm she was called by AO while she was in the ward of the hospital. By the time when she reached the chamber of
AO PW3 and AO were present. Later LW6 Usha rani and LW7 Venugopal also came there. The AO called PW1 to her chamber. When PW3 questioned PW1 he informed 22 that he brought diet charges. AO asked PW1 to distribute the diet charges to him,
Usha rani and Venugopal. PW1 handed over Rs. 2,500/- to him. LW6 Usha rani was given Rs.1,000/- and LW7 Venugopal was given Rs. 1,500/-. AO was given Rs.
3,000/- by PW1. The entire incident took place in the presence of PW3. Later PW1 went outside. Then ACB officials entered in to the room. The ACB officials conducted chemical tests to the hand fingers of her, Usha rani, Venugopal and AO and they given positive result. ACB seized the amount from them. She do not remember where PW1 was at the time of conducting chemical test to their hand fingers. PW1 when questioned by ACB he stated that he paid the amount to AO towards bribe. She was examined by ACB, Dy.S.P. She also gave a statement
before Magistrate. During cross examination P.W.4 deposed that that there was no
practice of taking diet by them from the contractor even prior to her joining in the hospital. The diet contractor used to pay the diet charges to RMO according to the convenience of the contractor for the periods. AO informed them that PW1 brought diet charges.
32.Turning to the evidence of P.W.5 who is the then Civil Assistant Surgeon, she deposed that on 19-11-2010 at about 1 pm she was called by AO while she was in the ward of the hospital. By the time when she reached the chamber of AO,
PW3 and AO were present. PW4 and LW7 M.Venugopal were also present. The AO called PW1 to her chamber. When AO questioned PW1 he informed that he brought diet charges. AO asked PW1 to distribute the diet charges to her, PW4 and
LW7 Venugopal. PW1 handed over Rs. 1,500/- to her. PW4 was given Rs. 2,500/- .
LW7 Venugopla was given Rs. 1,000/-. AO was given Rs. 3,000/- by PW1. The entire incident took place in the presence of PW3. Later PW1 went outside. Then
ACB officials entered in to the room. The ACB officials conducted chemical tests to the hand fingers of herself, PW4 and Venugopal and AO they given positive result.
ACB seized the amount from them. Subsequently ACB officials called PW1 and enquired him. He was examined by ACB, Dy.S.P. He also gave a statement before
Magistrate. During cross examination she deposed that there was no practice of
taking diet by them from the contractor even prior to her joining in the hospital.
The diet contractor used to pay the diet charges to RMO according to the 23 convenience of the contractor for the periods. The doctors through AO demanded
PW1 to pay the diet charges as he was not supplying the diet and as he was mis using the diet charges.
33.Turning to the evidence of P.W.6 the then Civil Assistant surgeon in the said hospital he deposed that on 19-11-2010 at about 1 pm he was called by AO while he was in the ward of the hospital. By the time when he reached the chamber of AO, PW3, PW4 and AO were present. After he went there PW5 came there. The AO called PW1 to her chamber. When AO questioned PW1 he informed that he brought diet charges. AO asked PW1 to distribute the diet charges to him, PW4 and LW7 Venugopal. PW1 handed over Rs. 1,000/- to him.
PW4 was given Rs. 2,500/- .PW5 was given Rs. 1,500/-. AO was given Rs. 3,000/- by PW1. The entire incident took place in the presence of PW3. Later PW1 went outside. Then ACB officials entered in to the room. The ACB officials conducted chemical tests to the hand fingers of himself, PW4 PW5 and AO and they given positive result. ACB seized the amount from them. Subsequently ACB officials called PW1 and enquired him. He was examined by ACB, Dy.S.P. He also gave a statement before Magistrate. During cross examination on behalf of AO he deposed that that there was no practice of taking diet by them from the contractor even prior to his joining in the hospital. The diet contractor used to pay the diet charges to
RMO at lump sum according to the convenience of the contractor for the periods.
The doctors through AO demanded PW1 to pay the diet charges as he was not supplying the diet and as he was mis using the diet charges. PW1 kept the rest of the mount on the table after distributing the same to them.
34.It is to be noticed that P.W.2 the mediator and P.W.7 the Investigating
Officer categorically admitted that AO during post trap proceedings narrated a version that P.W.1 paid the amount to them towards diet charges. So the defence of
AO that P.W.1 on the date of trap paid an amount of Rs.8,000/- towards diet charges for duty doctors has basis in the post trap proceedings. It is to be noticed that
EX.P.3 proceedings discloses that P.W.1 was awarded with contract for supplying diet to the patients and to the duty doctors. It is his case that he was performing the said contract and he got some amounts due to him from the hospital. Though it is 24 admitted by P.W.1 that the duty doctors were not receiving the diet being supplied by him but he never admitted in the entire cross examination that he used to pay the diet charges to the duty doctors. If that be the case, it is not understandable as to what made him to narrate a version in the post trap proceedings that the died charges were already paid by him. For obvious reasons P.W.1 is not admitting that he used to pay the diet charges to the duty doctors. If it is his intention that he was not at all paying any diet charges to the duty doctors it is for him to explain as to how he was given the amounts due to him by the hospital especially when the duty doctors was not receiving the diet from him. It is not the case of P.W.1 either in
Ex.P.1 or in the evidence that the amounts received by him by way of cheque in several times from the hospital was only towards diet supplied to the inpatients only.
There is every reason to believe that P.W.1 is not bent upon to reveal certain facts and with that intention only he did not reveal that he used to pay the diet charges to the duty doctors in lieu of the diet supplied by him when they were in night duty.
Now the fact is that Ex.P.1 does not disclose that he was supplying diet to the duty doctors. It is to be noticed that the evidence of P.W.1 is that AO demanded
Rs.10,000/- initially to issue cheque to him and later in view of the audit objection issued the cheque to him and the theory relating to audit inspection is not proved by the prosecution. So when he is not able to prove that AO delivered the cheque to him only on account of audit objections his further theory that AO demanded bribe for signing in the diet distribution book is also not proved by the prosecution.
35.Now there remains the allegation of P.W.1 that during post trap he met the AO then AO demanded Rs.8,000/- and he paid the amount and she received with her right hand and counted the same with both hands and gave Rs.5,000/- out of
Rs.8,000/- to him and requested him to deliver the same to the doctors and according to him he delivered the said amount to the doctors. One has to see the probabilities if any in the evidence of AO in this regard. It is to be noticed that when it is case of the prosecution and the evidence of P.W.1 that AO demanded Rs.8,000/- during post trap for doing official favour i.e., signing every day in the diet distribution register or book or bill whatever it may be it is not understandable how the AO did ask P.W.1 to deliver an amount of Rs.5,000/- among P.Ws.4 to 6 if really that amount 25 was received towards bribe from P.W.1 for signing daily in the daily diet distribution book etc., In other words if really AO demanded Rs.8,000/- from P.W.1 as bribe and when P.W.1 was claimed to have paid in the post trap proceedings there would not have been any occasion for AO to secure the presence of duty doctors and asked
P.W.1 to distribute the amount of Rs.5,000/- to them. If really the amount is towards bribe AO would have straight away received the amount without calling the presence of P.Ws.4 to 6. Further when it is the case of the prosecution and the evidence of P.W.1 that when P.W.1 paid Rs.8,000/- to AO AO returned Rs.5,000/- to him and asked him to distribute the same between doctors, the natural reaction of
P.W.1 would have been that he has to question AO as to why she returned Rs.5,000/- and asked him to distribute the same among duty doctors. The natural reaction of a man of reasonable prudence in that occasion would be to question AO as to why she is giving the amount to L.Ws.4 to 6 especially when she received the amount towards bribe. The evidence of P.Ws.4 to 6 goes to show that AO secured their presence
before P.W.1 and asked P.W.1 to pay the diet charges to them. It is not the case of
the prosecution that P.WS.4 to 6 turned hostile to the case of the prosecution. The prosecution did not seek to cross examine them. Their evidence is in accordance with their narrated versions in the post trap proceedings. It is to be noticed that according to the defence P.Ws.4 to 6 were subjected to disciplinary action but as there was a practice of receiving diet charges since long back by the duty doctors from the contractors in lieu of the diet they were exonerated. Even it is not the case of the prosecution that P.WS.4 to 6 abetted the commission of offence by AO.
36.Now the unnaturaility in the evidence of P.W.1 is that according to him he was demanded by AO ultimately to pay Rs.8,000/- as bribe as AO insisted him to pay such an amount to sign every day in the diet distribution register or bill book. So if really that allegation is true AO would not have secured the presence of P.Ws.4 to 6 and would have not asked P.W.1 to distribute the amount and in such situation P.W.1 would have questioned AO as to why he is entrusted to pay amounts to P.Ws.4 to 6 who have nothing to do with the demand of AO. So the whole theory introduced by
P.W.1 during the course of post trap that AO asked him to pay the amount to duty doctors and he went away and his evidence before the Court that he accordingly paid 26 the amount to the duty doctors shows that there is any amount of doubt about the allegations of P.W.1 in the report against AO. Now the prosecution is coming with a version during the course of arguments that Rs.5,000/- was the amount paid towards diet charges to P.Ws.4 to 6 and the remaining amount of Rs.3,000/- which was retained by AO was part of the bribe amount. It is never the case of the prosecution.
It is the very allegation of the prosecution that the amount of Rs.8,000/- collected by
AO was towards bribe. Certain things to the surprise of the investigating agency were found during the post trap as Rs.5,000/- was recovered from the possession of
P.Ws.4 to 6 and they put up version before the investigating officer that they received the amount towards diet charges and the Investigating Officer having been satisfied with the above said version did not initiate any prosecution against them. If that is the out come of the investigation by him he ought to have enquired as to what made P.W.1 to suppress in Ex.P.1 that he was also due certain amounts by him to the duty doctors. Further P.W.1 supported the theory of the duty doctors regarding the practice of receiving the diet charges by them but he stated that he already paid the same but when he is questioned during cross examination for obvious reasons he did not reveal the real facts before the Court about the payment of diet charges to P.Ws.4 to 6. If that is his case he had to explain as to how he could have received the entire amount from the hospital especially when he was supplying diet. It is not in dispute that AO made some adverse comments in Ex.P.4 against P.W.1 for supplying inferior quality of diet. Even it is admitted by P.W.1 that it was also published in news papers that he was supplying inferior quality of diet in the months of September and December, 2010. September, 2010 was much prior to the trap. In such circumstances, the possibility of P.W.1 developing some ill will against AO can not be ruled out. The theory of the prosecution now that AO received only Rs.3,000/- as part of bribe amount can not be accepted. The prosecution can not change its case. As the defence probablised a theory that P.W.1 paid diet charges to doctors on the date of trap now the prosecution can not introduce a new theory. It is not the case of the prosecution from the beginning or atleast from the time of post trap proceedings that AO received only Rs.3,000/- on the date of trap towards part of the bribe amount. It is to be noticed that if really the AO received 27
Rs.3,000/- alone towards part of the bribe amount she would have certainly direct
P.W.1 to pay Rs.5,000/- later. It is not the evidence of P.W.1 that AO handed over
Rs.5,000/- to him to pay to P.Ws.4 to 6 and demanded him to bring rest of
Rs.5,000/- in the later dates to come. All these circumstances, goes to show that there are any amount of doubtful circumstances, in the case of the prosecution. The contention of the prosecution that AO on the date of trap received part of bribe amount is first time introduced during the course of arguments. It is never the evidence of P.W.7 the Investigating Officer. Under the circumstances, it is very difficult to believe the case of the prosecution that AO demanded Rs.8,000/- prior to the trap and on the date of trap and accepted the same for doing official favour. As this Court already pointed out the prosecution has miserably failed to prove its theory that AO has to sign on the diet distribution register or diet distribution bill book. P.W.1 was getting the signatures of staff i.e., nurse or doctors as per his convenience by sending the diet through his family members. It is quite difficult to believe that the official favour of P.W.1 was pending with AO.
37.This Court has gone through the decisions cited by the learned Special
Public Prosecutor. In AIR 1998 Supreme Court 1474 in State of Uttar Pradesh
Vs. Zakulla the investigating agency proved the factum of pendency of official faovur of the complainant with AO and the complainant, investigating officer and mediators supported the case of the prosecution. The above said case obviously stood in a different footing from the present case on hand.
38.This Court has gone through the two decisions cited by Special Public
Prosecutor in 2004 (2) ALD (Crl) 486 S.C in State of Andhra Pradesh Vs.
R.Jeevaratnam and the decision reported in 2001 (1) ALT (Crl) 139 SC in
M.Narasingarao Vs. the State of A.P., The above decisions dealt with Section 20 of Prevention of Corruption Act. In both the cases, the prosecution has established that the receipt of the amount by the accused voluntarily as such the Hon'ble
Supreme Court drawn the presumption in favour of the case of the prosecution.
39.Now turning to the present case on hand, P.W.1 is not revealing the real facts that there was a practice by him in payment of diet charges in lieu of the diet supplied by him. He deviated from his narrated version in the post trap proceedings.
28
AO narrated twice in Ex.P.12 post trap that she received the amount from P.W.1 only towards diet charges. This Court dealt with certain improbabilities in the prosecution case already. Under the circumstances, it is not at all a fit case to draw a presumption under Section 20 of Prevention of Corruption Act in favour of the prosecution. To draw such a presumption under Section 20 of Prevention of
Corruption Act the prosecution should invariably establish that the accused accepted the tainted amount from P.W.1 voluntarily. As this Court already pointed out it is very difficult to believe the case of the prosecution in this regard. Hence, I am of the considered view the presumption under Section 20 of Prevention of Corruption Act is not available to the case of the prosecution.
40.This Court has gone through the two decisions cited by the learned defence counsel. In 2014 (1) Crimes 289 (AP), the Hon'ble High Court of A.P held that the presumption envisaged under Section 20 of the Prevention of Corruption Act is a legal presumption and on proof by prosecution that accused received tainted amount, it is obligatory on part of Court to draw presumption in each and every case.
But it is to be kept in mind that the prosecution has to positively establish that there is voluntary acceptance of tainted amount by the accused.
41.In the light of the various reasons furnished by the Court regarding the improbabilities in the case of the prosecution and the probablities in the case of the defence such presumption is not available to the case of the prosecution.
42.This Court has gone through another decision in 2003 Supreme Court
Cases (Cri.) 1236 cited by the defence counsel. The Hon'ble Supreme Court in the above said decision dealt with a situation that in that particular case it was elicited that there was a practice of collecting money for certain funds in the Taluk office.
The defence was that in view of such a practice being institutionalised and the accused having collected money for such a purpose, the Hon'ble Supreme Court though not appreciated it, yet taken a view that the High Court's order of acquittal was neither perverse nor without evidence.
43.Now coming to the present case on hand, even the proceedings under
Ex.P.3 reveals that P.W.1 was awarded with contract for supplying diet to the patients and duty doctors. Though he stated a version in the post trap that he already paid 29 diet charges to the duty doctors but in the evidence he deposed that there was no such practice. According to the evidence of P.Ws.2 and 7 P.W.1 putforth such a version in post trap. Hence, It is quite clear that P.W.1 was paying diet charges.
Though such a practice is not recognized by any G.O or order but such practice is in vogue. In 2003 SCC (Cri) 1236 the Hon'ble Supreme Court did not appreciate such a practice but held that the fact that the respondent received a sum of Rs.300/- would not leads to a conclusion that the amount received by him was bribe. Now turning to the present case on hand admittedly P.W.1 paid Rs.8,000/- to AO and thereafter AO returned Rs.5,000/- and asked him to pay the amount to the duty doctors and he paid the same. So P.W.1 had knowledge that he was paying such an amount to the duty doctors towards diet charges. If he had no knowledge that the amount that was being paid to P.Ws.4 to 6 was not towards diet charges, he would have questioned
AO as to why the said amount of Rs.5,000/- was returned to him. Under the circumstances, the mere fact that AO received a sum of Rs.8,000/- from P.W.1 in the light of the peculiar circumstances does not automatically leads to a conclusion that she received the same towards bribe. In my considered view the facts and circumstances in the above said decision are also similar to the present case on hand.
44.In the light of the above reasons, the prosecution has failed to prove that the AO demanded Rs.10,000/- and later reduced it to Rs.8,000/- prior to the date of trap and accepted the same on the date of trap in the manner as alleged by the prosecution. The prosecution has also failed to prove its allegations through the evidence adduced that the AO was duty bound to sign in diet distribution register.
The prosecution has miserably failed to prove the existence of official favour to be done by AO. Having regard to the over all circumstances, I feels that the prosecution has failed to prove the charge under Section 7 of Prevention of Corruption Act and it is a fit case to extend benefit of doubt to the accused.
45.Turning to the charge under Section 13 (2) read with 13 (1)(d) of
Prevention of Corruption Act, I feels that the evidence relating to the charge under
Section 7 of Prevention of Corruption Act is also coming in the way of the prosecution to contend that the evidence let in would attract the essential ingredients of criminal 30 mis conduct punishable under Section 13 (1)(d) read with 13 (2) of Prevention of
Corruption Act. In the light of the above reasons, I hold that the prosecution has failed to prove the charges framed against the accused beyond reasonable doubt as such the accused is entitled for the acquittal by giving benefit of doubt.
46.In the result, the AO is found not guilty of the charges under Section 7 and 13 (1)(d) read with 13 (2) of Prevention of Corruption Act and she is acquitted of the same under Section 248 (1) Cr.P.C., M.Os.1 to 10 and M.O.12 shall be destroyed and M.O.11 cash of Rs.8,000/- (Rupees Eight Thousand Only) shall be confiscated to state as it is mentioned in the charge sheet that P.W.1 was reimbursed with bribe amount after appeal time is over. The bail bonds of AO shall remain in force for a period of six months under Section 437(a) Cr.P.C.,
Dictated to the Personal Assistant, Transcribed by him, corrected and
pronounced by me in open court on this the 4th day of May, 2015.
III Additional District and Sessions Judge -cum- Special Judge for SPE & ACB Cases Visakhapatnam.
APPENDIX OF EVIDENCE
Witnesses examined
On behalf of Prosecution:On behalf of Defence: P.W.1 G. Satyanarayana NIL P.W.2 P. Jagadeeswararao P.W.3 Dr.B.V. Ravi Chandra P.W.4 Dr. D. Kiranmayi, P.W.5 Dr. A.V.S. Usharani, P.W.6 Dr. M. Venugopal P.W.7 D. Ravi Babu (IO)
DOCUMENTS MARKED
On behalf of prosecution: Ex.P.1: Report given by P.W.1 to the Dy.S.P., ACB, Vizianagaram, dt.18.11.2010, Ex.P.2 164 Cr.P.C., statement of P.W.1 recorded by the Magistrate, dt.27.11.2010, Ex.P.3 Proceedings dt.21.10.2010 Ex.P.4 Diet Distribution Book, Ex.P.5 Copy of First Information Report, Ex.P.6 Pre-trap proceedings, dt.19-11-2010, Ex.P.7 Diet Bill Book, Ex.P.8 Doctors Attendance Register, Ex.P.9 Diet bill of the complainant. Ex.P10 Cash cum cheque drawn book. Ex.P.11 Rough sketch, dt.19.11.2010, 31
Ex.P.12 Post trap proceedings, dt.19.11.2010. Ex.P.13 Proceedings Dt.02.11.2010, issued by P.W.3. Ex.P.14 164 Cr.P.C., statement of dP.W.4, Ex.P.15 164 Cr.P.C., statement of P.W.5, Ex.P.16 164 Cr.P.C., statement of P.W.6, Ex.P.17 Original First Information Report, Ex.P.18 Sanction proceedings issued against AO vide G.O.Ms.No.38, dt.16.2.2012.
On behalf of Accused: Ex.D.1 Xerox copy of report of P.W.3, Ex.D.2 Xerox copy of the report of P.W.3
MATERIAL OBJECTS MARKED
MO1: Sealed cover containing sample of Sodium carbonate powder used in pre trap proceedings MO2: Sealed cover containing samples of Phenolphthalein powder used in pre trap proceedings. MO3: Sealed bottle containing resultant solution collected after Testing right hand fingers of A.O, MO4: Sealed bottle containing resultant solution collected after testing left hand fingers of AO, MO5: Sealed bottle containing resultant solution collected after Testing right hand fingers of Dr. A.V.S. Usha Rani, MO6: Sealed bottle containing resultant solution collected after testing left hand fingers of Dr.A.V.S. Usha Rani M.O7 Sealed bottle containing resultant solution collected after Testing right hand fingers of Dr. Dr. D. Kiranmayi, MO8: Sealed bottle containing resultant solution collected after testing left hand fingers of Dr. D. Kiranmayi, M.O9.Sealed bottle containing resultant solution collected after Testing right hand fingers of Dr. M.Venugopal, MO10: Sealed bottle containing resultant solution collected after testing left hand fingers of Dr. M.Venugopal, M.O.11 Cash of Rs.8,000/- M.O.12 Remaining sodium carbonate power packet.
III Additional District and Sessions Judge -cum- Special Judge for SPE & ACB Cases Visakhapatnam.
Copy to: The Accused Officer, The Special Public Prosecutor, Vizianagaram 32
IN THE COURT OF THE V ADDL. SENIOR CIVIL JUDGE , VISAKHAPATNAM
(FAST TRACK COURT)
Present: Sri. A.V.Ravindra Babu.,B.A.,B.L.,L.L.M., I Addl.Senior Civil Judge FAC V Addl. Senior Civil Judge Visakhapatnam
Thursday, the 16th day of February, 2012
O.S.NO.1393/2009
Between:
Malladi Suryanarayana Sastri, aged 82 years, Son of late Sri Rama Murthy, Advocate 31-31-23, Sai baba Street Dabagardens, Visakhapatnam.
…..Plaintiff
And
1. Sri.P.V.Apparao, aged 52 years, Son of late Apparao, Port Employee, resident of 38-19-113/4 and 5 Gowthami Gardens, Jyothinagar, Marripalem,Visakhapatnam.
2. Smt.P.Veerakota, ages 48 years, wife of P.V. Aparao, Hindu, resident of 38-19- 113/4 and 5 Gowthami Gardens, Jyothinagar, Marripalem, Visakhapatnam.
..,Defendants
This suit is coming on 27-1-2012 for final hearing before me in the presence of Sri.T.V.S.K.Kanaka Raju, Advocate for plaintiff and of Sri. P. Srinivas and B.V.
Satyanarayana, Advocate for defendants and the same having stood over till this day for consideration, this court deliver the following:
JUDGEMENT
This is a suit filed on behalf of the plaintiff against the defendants for recover an amount of Rs.1,94,108/- said to be due basing on a promissory note executed by the defendants on 5-7-2009 for a sum of Rs.1,63,200/- by enclosing the particulars of the account.
2.The case of the plaintiff in brief as per the averments in the plaint is that the plaintiff is an advocate practicing at Visakhapatnam. The 1st defendant is the husband of the 2nd defendant. The plaintiff used to conduct several cases of the defendants since several years. Since last 5 years the defendants have been facing severe litigation being indebted to others in their business and they are in bad financial position. They requested the plaintiff to continue to conduct their civil and criminal cases assuring him to pay fee later on at a convenient time. Out of pity for them the plaintiff has been conducting their cases with a trust on them.
The plaintiff saved them in all respects but they have been cheating him in all respects.
3.Besides the aspects of non payment of fee, the defendants by repeatedly expressing bad financial position borrowed the amounts from the plaintiff from time to time by way of cash and cheques for their children education and for discharge of other loans and for surety amounts for release on bail in criminal cases. The 1st defendant was dismissed from service on account of the criminal cases against him but he was acquitted and got his job back. After he was taken into service he stopped attending to plaintiff's office and courts from May, 2008 without taking any care of the cases. The defendants went on avoiding to execute a promissory note for the heavy amounts borrowed from the plaintiff. Ultimately at the instance of one party by name Neelamsetty Muneswara Rao they executed a promissory note on 5-7-2009 for Rs.1,63,200/- as per particulars of account enclosed to the promissory note. They promissory note. They promised to discharge the amount in two months but they did not discharge the same. The plaintiff arranged the loans to the defendants from other clients also for which they are not caring to discharge.
The defendants turned mischievous and adamant.
4.The plaintiff has been demanding the defendants to discharge the suit promissory note debt. He sent telegrams dated 19-6-2009, 21-6-2009 and 29-6- 2009. finally he issued registered notice dated 8-9-2009 which was received by them on 9-9-2009 for which there is no reply and they did not discharge the debt.
The defendants are offering to sell their house to others. Though the defendants took loans 14 times from 2007 up to 6-1-2009 and though they agreed to calculate the interest from the date of each loan the plaintiff is claiming interest from 6-1- 2009. Hence the suit.
5.The defendants got filed a written statement denying the case of the plaintiff and their contention in brief as per the written statement is that the plaintiff is a senior advocate by profession and the defendants engaged him in several cases.
The claim of the suit relates to the alleged amount lent by the plaintiff to these defendants since 2007 to 6-1-2009 as such the written statement is confined to it.
The relationship between the defendants and plaintiff is professional as advocate and client. As and when the plaintiff demanded the fee they paid the fee. The said payment is reflected by the plaintiff demanded the defendants to pay huge amounts by way of fee. They intimated to the plaintiff that sufficient amounts have been paid by them and meager amounts are only due and they sought the plaintiff to verify the fee collection book maintained by him. Hence the plaintiff became aggressive and threatened the defendant with dire consequences. Then the defendants went away from the plaintiff's office stating that they will come back and settled the issue. The plaintiff in the meanwhile issued the telegrams to the defendants. Then the defendants approached the plaintiff. The plaintiff and one of his clients Munneswara Rao threatened the defendants that if they fall to execute documents according to dictation given by them, the plaintiff shall not return their files and that he would false police complaints and file speculative suits. As the plaintiff is a legend by profession and is capable of doing anything the defendants executed the alleged promissory note date 5-7-2009 and its enclosure on threat and undue influence and coercion. The plaintiff stated to the defendants that as and when his fee is settled he return back the files and documents to the defendants.
On the same day, the defendants agreed to pay Rs. 50,000/- as the plaintiff fee and the plaintiff accepted for the same. After issuance of legal notice by the plaintiff the defendants paid Rs.50,000/- to the defendants in the presence of Sanapala
Ramanajuneyalu who acted as well wisher for the plaintiff and defendants. The plaintiff promised to return back the documents ie., the promissory notice and its enclosure but failed to do so and filed the present suit.
6.No amounts were borrowed by the defendants from the plaintiff much less any amounts from Shankar Rao, Munneswara Rao, Shekar, Chandra Mouli and
Padma medicals. The promissory note and its annexure were executed by the defendants under the forece and pressure. The plaintiff used to give bearer cheques in the name of the 1st defendant to withdraw amount from S.B.H.Court
Branch, Visakhapatnam for his personal use and the said amounts were handed to the plaintiff but the plaintiff forcibly taken the annexure from the defendants without lending the amount to the defendants. The defendants never borrowed the said promissory note amount from the plaintiff. No consideration was passed on the alleged promissory note as such it is devoid consideration. The plaintiff is leading advocate in Visakhapatnam and he is having experience as professional and he filed the suit to harass the defendants. He obtained attachment of the property. The plaintiff is harassing the defendants like anything by issuing frivolous notices and telegrams for which the defendants complained to the Bar Council of
A.P. Against the plaintiffs' illegal acts. There is no cause of action to file the suit.
The defendants reserves their right to initiate necessary legal action against the plaintiff. The suit is barred by limitation. The alleged promissory note does not satisfy the ingredients contemplated under the N.I.Act. The suit is vexatious and capricious and it is not tenable under law. Hence it may be dismissed with exemplary costs.
7.Basing on the above pleadings, the issues have been settled for trial, when the suit was on the file of II Addl.Senior Civil Judge, Visakhapatnam and after settlement of issues the cases has been transferred to this court. The issues settled are as follows:
1) Whether the suit promissory note is true, valid and binding on the defendants?
2) Whether the plaintiff is entitled to suit claim ?
3) To what relief?
8.On behalf of the plaintiff PW1 and 2 are examined and Exs.A1 to A6 are marked. When the suit is coming for the evidence of the defendants side on 28-11- 2011 the learned counsel for the defendants filed memo reporting no evidence on behalf of the defendants on the ground that the evidence on record does not requires letting of any evidence from the defendants. The memo is signed by defendants.
9.Issue nos.1 and 2:
The contention of the plaintiff is that the defendants are his clients. It is also his contention that he did cases on behalf of the defendants without taking any fee as the defendants promise to pay the fee at a later time. It is also his contnetion that on account of the bad financial position of the defendants they borrowed several amounts form him by way of cash and cheques for the education of their children from time to time. It is also his case that the defendants went on I avoiding to execute a promissory note for the amounts borrowed and at the instance of one Neelamsetty Munneswara Rao they executed a promissory note on 6-7-2009 for Rs. 1,63,200/- by enclosing the particulars of the account to the promissory note. On the other hand the contention of the defendants is that they paid huge amounts to the plaintiff towards fee and they are due of only meager amount but the plaintiff demanded huge amounts and got issued several notices and when they approached the plaintiff he with the help of his clients obtained suit promissory notes from them by threatening with dire consequences and with force So the defendants admitted the execution of the suit promissory note infavour of the plaintiff but their contention is that it is obtained under the threat and undue influence. Their contention is that they did not execute the suit promissory note voluntarily. It is also their contention they never borrowed any amount from the plaintiff. Int the light of the pleadings of either sides now in deciding these issues the point that arises for consideration whether the plaintiff has proved the execution of the suit promissory note by the defendants in the manner is pleaded.
10.The learned counsel appearing for the plaintiff put forth his contentions in true with the pleadings and relied on the evidence of Pws.1 and 2. The defendants clearly admitted the execution of the suit promissory note but their contention is that the plaintiff obtained the same by threat and force. He strenuously contended that there are no circumstances elicited from the mouth of Pws1 and 2, so as to disbelieve their evidence and the defendants for the reasons best known and to avoid exposure of truth did not enter into the witness box. If they enter into the witness box certainly the plaintiff would have elicited from their mouth that they executed the suit promissory note voluntarily. He further contended that the transaction which is evident from Ex.A1 is not hit under any profession of law and it is a valid transaction as such the plaintiff is entitled to a decree.
11.The learned counsel appearing for the defendants strenuously contended that the plaintiff as an advocate for the defendants in number of cases was in a dominate position on the defendants so as to pressurize them to execute any document and in that process the suit promissory note has been brought into existence. He further contended in accordance with the contents of written statement. There is no dispute that the defendants are the clients of the plaintiff.
There is no dispute that the plaintiff got issued legal notices to the defendant threatening to file cases. So in such situation when they attended the office of the plaintiff in response to the legal notice the plaintiff with the help of his clients pressurized the defendants and made them to execute Ex.A4. Even according to the contents in Ex.A4 it is not supported by any consideration on that day. On the other hand it is alleged to be supported by the various transactions whose particulars are alleged in the enclosure. He strenuously contended that the plaintiff has no business to lend any amount to his clients and it is against the rules and procedure. An advocate shall not lend any amount to his clients under any circumstances. The transaction on the face of it appears to be quire unreasonable.
He sought to contend that as the defendants are of the firm confidence that they would succeed n the suit by pinpointing infirmities in the case of the defendant they did not let in any evidence. So the fact that the defendant did not adduce evidence cannot be a ground to draw an adverse inference against the defendants.
In support of a such a contention he relied on AIR 1981 SC 2235. He further relied on AIR 1959 AP 370 and argued that it is quite evident from the record that the plaintiff was in a dominate position on the defendant and when such is the situation the court has to take the same into consideration. He further relied on AIR 1965
S.C Page 1364 and argued that the transaction under Ex.A4 is violative of section 23 of Indian Contract Act and the court is bound to take notice of illegalaity even if it was not pleaded by the defendants. He further relied on AIR 1984 SC page 15 and contended that the transaction under Ex.A4 is void in view of section 23 of contract Act. He further relied on AIR SC 1967/878 and contended that the transaction under Ex.A4 is induced by undue influence. He further contended that according to Rule 32 of Bar Counsel of India Rules an advocate shall lend any money to his client for the purpose of any action of legal proceedings in which he is engaged by such client. The transaction under Ex.A4 whose particulars were mentioned in the enclosure is his under the advocate Rule also. He further contended that the transaction under Ex.A4 is not at all bonafide and Ex.A4 is induced by coercion and undue influence and the plaintiff did not prove the bonafides of transactions as such the suit is liable to be dismissed.
12.The learned counsel for the plaintiff during the course of reply arguments contended that the amount lent by him to the defendants was not for the purpose of any suit in which he was engaged by them but on account of bad financial position of them the plaintiff lent the amount to the defendants for the purpose of children education on various dates. The promissory note under Ex.A4 and the enclosure thereof was scribe by the 1st defendant himself with his own handwriting.
The defendants who got much experience in the he court cases would not have ventured to execute Ex.A4 on account of the alleged coercion and undue influence.
The defendants are not illiterates. The defendants did not enter into witness box to spell out the circumstances of coercion undue influence and the citations relied on by them are of no use to their defence. He further contended that the plaintiff is entitled to suit claim.
13.Pw1 is the plaintiff. He in his chief examination affidavit put forth the facts narrated in the plaint. The substance of his evidence is that he is an advocate by profession. He used to conduct civil and criminal cases since several years on behalf of the defendants . They requested him to continue to conduct their cases by assuring him to pay fees at later date. But they did not pay the fee and cheated him. On account of a bad financial position the defendants borrowed several amounts from time to time from him by way of cash and cheques for their children education and for discharge of other loans and for surety amounts for release on ball in criminal cases. When they did not pay the amount due he sent telegrams and ultimately on 5-7-2009 at the instance of Neelamsetty Muneeswara Rao they executed a promissory note for Rs.1,63,200/- by mentioning the particulars of the account enclosed to the promissory note. Though they promised to discharge the amount withing two months but they failed to do so. Hence he got issued a registered legal notice for which there is no replay. According to Pw1 Ex.A1 is the telegram notice issued to the defendant by him on 19-6-2009. Ex2 is the office e copy of telegram notice dated 21.6.2009, Ex.A3 is the office copy of telegram notice dated 29.6.2009. Ex.A4is the promissory note dated 5.7.2009 along with calculation sheet of the same date. Ex.A5 is the office copy of the registered legal notice dated 8.9.2009. Ex.A6 is the postal acknowledgment (Exs.A1 to A3 are marked subject to objection regarding proof and relevancy). Coming to the evidence of PW.2 he deposed in substance that the defendants are the clients of the plaintiff. They borrowed the amounts from the plaintiff. He know the defendants. The 2nd defendant told him that the defendants sent telegram to pay his fee and discharge the debts. She also brought the 1st defendant to his to discuss the matter. They requested him to get the matter settled without litigation.
He informed to the plaintiff by phone they would meet him and settled the matter.
They went to the office of the plaintiff on 5-7-2009. The plaintiff showed the amounts borrowed by the defendants. Then the 1st defendant filled up the promissory note for Rs.1,63,200/- with list of amounts borrowed by them. They promised to discharge the same. He is the witness on the suit promissory note.
14.It is to be noticed that the plaintiff to discharge the burden of proving of the execution of the suit promissory note in the manner as pleaded examined PW2 who is the one of the attestor of Ex.A4. The evidence of Pw2 is on the same lines with that of the evidence of Pw1 in so far as the execution of Ex.A4 with enclosed sheet is concerned.
15.During the cross examination PW1 deposed that the c contents of Ex.A5 are true. He given instructions to draft the plaint. He conducted 30 cases of the defendant among which 4 were criminal cases. He appeared for the defendants in most of the cases for which they were shown as defendants. He denied that basically he is aggressive in nature and used to fight in conducting cases on behalf of his clients. The suit promissory note was supported by past consideration and it was enclosed with a list. No consideration was passed on the date of Ex.A4. He denied that the 1st defendant with drawn the amounts mentioned in the cheques and paid the same to him. He denied that after the telegram under Exs.A1 to A3 the defendants came to him and that he obtained Ex.A4 from the defendants with the assistance of one Munneswara Rao and others under compulsion. The witness volunteers that after receiving the telegram the defendants approached.
Munneswara Rao and came and voluntarily executed Ex.A4. He denied that after receipt of Ex.A5 the defendants in the presence of kanakala Ramanjaneyulu paid
Rs.50,000/- to him but he did not return the bundles. He denied that he did not give any amounts to the defendants. The defendants sent a complaint against him to the Bar Council and police. He says that he lodged the complaint against the defendants. He deposed that he filed the suit only for recovery of suit promissory note. He denied that the suit is not maintainable as the transaction done by him is against the professional ethics. Coming to the cross examination of PW.2 he deposed that the house of the plaintiff and his office are very nearer to his house.
He denied that at the time of mediation the defendants insisted the plaintiff to account for the payments made by them and that they were mentioned in the book maintained by the plaintiff and that in that occasion the quarrel took place. He denied that they obtained Ex.A4 from the defendants by threatening them in the office of the plaintiff. He denied that they threatened the defendants to file criminal and civil cases if they did not execute the promissory note. He denied that they also threatened the 1st defendant to remove from service. He denied that the 2nd defendant never told him about her financial position. He denied that there was an agreement on the date of Ex.A4 regarding the fee payable by the defendants to a tune of Rs.50,000/-. He also denied a suggestion that the plaintiff was ready to return the bundle if the defendants paid Rs.50,000/-. He denied that though the defendants paid Rs.50,000/- to the plaintiff, he did not return the case bundles and that the defendants never borrowed the amount from the plaintiff for their urgent necessities and that 1st defendant never stopped coming to the office of the plaintiff after he entered into service. He denied that the defendants did not execute Ex.A4 voluntarily and that he is deposing false to help the plaintiff and that the defendant never signed in the fees chit. He denied that on his dictation only and on threatening Ex.a4 was executed by the defendants.
16.As seen from Ex.A4 it is purported promissory note executed by the defendants. There is no dispute that the Ex.A4 is in the handwriting of the 1st defendant. It is not at all denied. Further Ex.A4 is also enclosed with a sheet which is said to be in the handwriting of the 1st defendant and it is also not denied. Ex.A4 reads as if the defendants borrowed a sum of Rs.1,63,200/- as per the list enclosed thereto. The list enclosed with Ex.A4 which is part and parcel of Ex.A4 reads as if the defendants borrowed Rs.10,000/- in the year 2007, Rs.7,000/- in the year 2007 and Rs.12,000/- on 21.1.2008, Rs.20,000/- on 5.2.2008, Rs.2,000 on 22.3.2008/- on the said date and Rs.50,000/- on 6.1.2009, Rs.20,000 on 25.7.2008, Rs.25,000/- on 15.10.2008 and further Rs.1,000/- Rs.500/- and Rs.200/- on the said da5es. So according to the plaintiff the defendants borrowed the above said amounts on several dates and in token of the same ultimately when the plaintiff sent telegram executed the suit promissory note. PW.1 admitted in cross examination that no consideration was passed on the date of Ex.A4. It is to be noticed that it is not the case of the plaintiff that he paid the amounts in Ex.A4 on the date of its execution.
So the answers spoken by PW.1 in cross examination as if no consideration was passed on the date of Ex.A4 is of no avail to the case of the defendants. It is to be noticed that the answer of PW.1 reveals as if the contents of Ex.A5 legal notice are true. As seen from Ex.A5 though the plaintiff alleged that the defendants used to avoid to pay his fee but the substance of the allegation is that apart from non payment of fee they borrowed several amount on different dates to a tune of
Rs.1,63,200/- and in support of the same ultimately they executed the suit promissory note. There is nothing in Ex.A5 which h is favourable to the case of the defendants. So the answer which is elicited from the mouth of PW.1 as if the contents of Ex.A5 are true is of no use to the defence of the defendants.
17.It is to be noticed that there is no dispute that the plaintiff got issued telegraphic notices and according to him Exs.A1 to A3 are the copies of telegraphic notices . Those are marked subject to proof and relevancy. Even according to the defendants, they did not deny that they received telegraphic notices. Even it is their case that in response to the said notices when they attended the office of the plaintiff ,the plaintiff obtained Ex.A4 with the help of Munneswara Rao by using force. The above said contention will be appreciated herein after. So when there is no dispute about the issuance of telegraphic notices by the plaintiff to the defendants and the receipt of the same by the defendants, it amounts to proof of the factum of issuance of the telegrams under Exs.A1 to A3 is concerned, it is the case of the plaintiff that in response to the said telegraphic notices only the defendants turned up and executed Ex.A4. So Exs.A1 to A3 are quite relevant. So the objection putforth for marking of Exs.A1 to A3 are not at all tenable . Hence
Exs.A1 to A3 can be considered while judging the case of the plaintiff.
18.It is to be noticed that there is no dispute that the defendants received the original of Ex.A5 registered legal notice sent by the plaintiff. According to the case defendants after receipt of legal notice they paid an amount of Rs.50,000/- to the plaintiff towards settlement of fee. Though it is the case of the defendants that they paid such a sum of Rs.50,000/- in the presence of Sanapala Ramanjuneyulu but they did not examine the so called Sanapala Ramanjuneyulu. Even the defendants did not enter into witness box. Pws1 and 2 denied the case of the defendant in this regard. So they remains nothing on record in support of the contention of the defendants that after receipt of legal notice under Ex.A5, they paid Rs.50,000/- to the plaintiff.
19.As seen from the evidence of Pws.1 and 2 they denied that they obtained Ex.A4 from the defendants by using force and threatening. So the contention of the defendants in this regard is denied by the Pws.1 and 2. It is a fact that the defendants did not enter into witness box by getting filed a memo that the evidence on record warrants them to come to a conclusion that they need not adduce any evidence.
20.Now this court has to see that whether there are nay circumstances appearing from the record to uphold the contention of the defendants. It is no doubt true that the evidence of Pws.1 and 2 is not rebutted by the defendants by adducing any evidence. The court has to look into the circumstances to find out whether there are any favourable circumstances in support of the defence of the defendants that they paid Rs.50,000/- to the plaintiff in the presence of named person is denied by Pws.1 and 2 as such it is not at all substantiated in any way.
21.Before going to appreciate the contention of the defendants that the very transaction under Ex.A4 is illegal. I would like to look into the so called Rule 32 of
Bar Counsil of India Rules. Though in the memo of decisions, the learned counsel for the defendant enclosed 6th serial as copy as Rule 32 of Bar council of India Rules but it does not contain any such head. It consists of 13 sheets. The first sheet begins as Chapter – 2 and standards of professional conduct and Etiquette. It further reads as Rules under section 49 (1) © of Act read with the proviso thereto.
This court has gone through the Rule 32. It reads that an advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. It is to be noticed that it is not the case of the plaintiff that he lent various amount to the defendants for the purpose of legal action or legal proceedings in which he is engaged by the defendants. The case of the plaintiff is that he conducted several cases in civil and criminal on behalf other defendants basing on their assurance that they would pay fee at a later time and that they did not do so and further looking into the bad financial position he lent various amounts to the defendants on various dates for the purpose of educational of their children. The very case of the plaintiff is that ultimately the defendants executed Ex.A4 with the list enclosed thereto. As this court already point out the contents of Ex.A4 coupled with the list enclosed thereto which is part and parcel of the promissory note reads that the defendants received various amounts on several dates either in cash or cheque. So it is quite clear that the amounts that are said to be lent by the plaintiff to the defendants is not for the purpose of any case in which the plaintiff was engaged by the defendants. So it is very difficult on the part of the defendants to contend that the transaction under Ex.A4 is hit under the so called Rule 32. What Rule 32 as referred to above reads is that the advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged such client. It is not the case of the plaintiff he lent the amounts to the defendants for the purpose of any legal proceedings in which he was engaged by them. I am not persuaded to accept the contention of the learned counsel for the defendants that the transaction under Ex.A4 is hit under Rule 32.
22.This court has carefully gone through the decisions cited by the counsel for the for the defendants. In AIR 1981 Supreme Court 2235 the facts arose in a execution petition petition filed before the lower court. The decree holder sought to execute the decree by sale of the property attached. The relief was prayed against the JDR. But the property was in possession one Apte. Decree holder prayed that
Apte should be called upon to produce the property. The notice was issued to him.
He appeared and filed his written statement that the property had been pledged with him by the judgement debtor and that the property was sold to one
Madhusudan Vasudeo Bavdekar. Then the decree holder filed an application to implead Bavdekar and that application was allowed and he was impleaded. He also filed a written statement that the property was pledged with Apte and he sold the same to him. The executing Court came to the conclusion that the attachment
before the judgement was invalid and the same could not be made available to the
decree holder. Then the decree holder filed an appeal before the District Judge which was dismissed affirming the order of the executing court. Then the decree holder filed a second appeal in the Hon'ble High Court and it was rejected. But leave was granted to appeal under letters patent. The Hon'ble High Court reversed the concurrent findings of the fact recorded by the courts below. Then the mater was canvassed before the Hon'ble Supreme Court. Then the Hon'ble Supreme
Court held that the question of drawing an adverse inference against Apte and
Bavdekar on account of their absence from the court would arise only when there was no other evidence on account of the point in issue. While holding so the
Hon'ble Supreme Court held that no adverse inference can be drawn against the
them.
23.Coming to the present case on hand, as this court already point out
Pws.1 and 2 denied the very defence of the defendant that they obtained Ex.A4 by using force and by giving threatening. There are no favourable circumstances elicited from the mouth of Pws.1 and 2. It is to be noticed that there are any amount of improbabilities in the case of the defendants for the reason that the defendants are not illiterates. Even according to them the plaintiff conducted several cases on their behalf. So the defendants got any amount of experience in the court cases. Further there was estrangement between the plaintiff and the defendants for the reason that the plaintiff sent number of telegrams to the defendants. In such a circumstances a man of reasonable prudence would not venture to execute a promissory note with a list as if they borrowed several amounts. Further the defendants kept quite even after receipt of legal notice.
These are the improbabilities appearing from their very defence. Absolutely there is no other evidence on record which is favourable in case support of the defendants. AIR 1981 Supreme Court 2235 obviously stood on different footing.
Basing on the above said decision, the defendants cannot contended that no adverse inference is liable to be drawn against them. Coming to AIR 1965 Supreme
Court 1364 cited by the learned counsel for the defendants the facts arose with reference to Section 23 of Indian Contract Act the consideration or object of an agreement is lawful, unless it is forbidden by law or is of such a nature that if permitted it would defeat the provisions of any law or is fraudulent or it involves or implies injury to the person or property of another or the court regards it as immoral of opposed to public policy. The question before the Hon'ble Supreme
Court in the above said citation was that whether in the absence of a pleading the defendants was not entitled to rely on the taint of illegality in the transaction and whether the relief can be refused. The Hon'ble Supreme Court held that where a contract or transaction ex facle is illegal there need to be no pleading of the parties raising the issue of illegality and the court is bound to take judicial notice of the nature of the contract of transaction and mould its relief according to the circumstances.
24.By relying on the above referred citation, the obvious intention of the learned counsel for the defendants is that as the very transaction under Ex.A4 is illegal it cannot be enforced. It is to be noticed that as this court already point out the transaction reflected under Ex.A4 cannot be brought under the purview of the
Rule 32 of so called rules the copy of which filed by the defendants counsel. It is very difficult to uphold the contention of the defendants by relying on Air 1965
Supreme Court page 1364. The above decision in my considered view is of no use to the case of the defendants. Coming to AIR 1959 Andhra Pradesh 370 it also relates to the facts that the suit instituted by the plaintiffs violates the provisions of section 23 of the Indian Contract Act. In the above said case the averments in the plaint reads that the consideration was payable to Venkatachalam for directing his energles and influence to bring about sale of the site to a company. The plaintiff also deposed the said Venkatachalam exercised his influence on one Johnson and made him agreed to pay Rs.575/- per cent. Pw2 another witness also deposed the same. Under the above circumstances, it was held by the Hon'ble High Court held that such a conditions in the contract violations the provisions of section 23 of
Indian Contract Act. Coming to the present case on hand as this court already point out the transaction reflected under Ex.A4 cannot be termed noted as opposed to public policy. Hence the above referred citation is of no use to the case of the defendants. Coming to the AIR 1984 Supreme Court 15 facts arose with reference to section 10 carriers and section 23 of Indian Contract Act. According to section 10 of the carrier Act a suit cannot be instituted unless a notice writing of the loss or injury has been given to him before the institution of the suit and within six months of the time, when loss or injury first came to the knowledge of the plaintiff but in the way bill there was a condition No.15 so as to mandate to give notice within 30 days from the date of booking or from the date of arrival of the goods at the destination. The facts are such that such a condition No.15 was designed to avoid the liability under Section 10 of the Carries Act. In the above said circumstances, the Hon'ble Supreme Court while dealing with section 10 of the carries Act at para no.14 and 15 held that such condition No.15 violates section 23 of Indian Contract
Act. The facts I the above referred citation also stood on a different footing for the reason that the transaction reflected under Ex.A4 cannot be termed as illegal or immoral. Coming to another decision AIR SC 1967 page 878 it arose on facts with reference to the plea of undue influence as per Section 16 of Indian Contract Act.
By relying on the above said decision the counsel for the defendants contended that the plaintiff is the advocate and defendants are clients as such it is quite clear the plaintiffs stands in a fiduciary capacity or holds a real or apparent authority over the defendants as such the transaction is hit under Section 16 of Indian Contract
Act. This court gone through the above referred citation and further Section 16 of
Indian Contract Act. According to Section 16 of Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the partiesis in a position to dominate the will of the other and uses that position to obtain unfair advantage over the other. Further a person is deemed to be in a position to dominate the will of the other when he holds a real or apparent authority over the other or where he stands in fiduciary relation to the other. Now this court has to see whether the evidence on records warrants this court to assume that the plaintiffs holds a real or apparent authority over the defendants or where he stands in a fiduciary relationship to the other or where he is a position to dominate the will of the defendants It is to be noticed that admittedly there is no dispute that the plaintiffs sent the notices under Ex.A1 to A3 tot he defendants. In response to the same the defendants did not issue any reply whatsoever. On the other hand even according tot he plaintiff the defendants responded n pursuance of Ex.A1 to A3 at the instance of Munneswara Rao for the settlement and they executed Ex.A4. It is also the case of the plaintiff that in response to Ex.A1 to A3 they went to the office of the plaintiff. The contention of the plaintiff is that the defendants voluntarily executed Ex.A4. The contention of the defendants is that the plaintiff obtained Ex.A4 by using force and undue influence and by using threatening. It is to be noticed that the date of Ex.A4 was on 5-7-2009. The plaint was presented on 22-10-2009. So till the date of filing of the suit the defendants quit kept. It is not as though the defendants are illiterates and they are not having any legal knowledge. But the defendants got experience in the court cases. Even according to them the plaintiffs was conducting several cases of them. So on account of Ex.A1 to A3 there was a estrangement between the plaintiff and defendants. When such is the situation it is not understandable as to how the defendants kept quite for about 3 months especially when they were made to execute Ex.A4 by use of force and by use of threatening. Further there is no dispute that the defendants received the notice under Ex.A5 as if the defendants voluntarily executed Ex.A4. Even there is no response by getting issued any reply denying the allegations in Ex.a5. On the other hand the very plea of the defendants that thy turned to the plaintiff after Ex.A5 and paid Rs.50,000/- to the plaintiff remained a mere allegations without any semblance of proof. The defendants did not enter into witness box to depose the said facts. A man of reasonable prudence in the given situation would certainly respond after allegedly executed a promissory note under Ex.A4 under the threat or force or at least after receiving a legal notice. The very conduct of the defendant in this regard is not that of a man of reasonable prudence. Though there is existence relationship of advocate and client on the date of Ex.A4 but that single circumstances would not probabilise the contention of the defendants in any way. The decisions cited by the learned counsel for the defendants are of no use to their defence. If really defendants were made to execute Ex.A4 on account threat or use of force or undue influence they would have appeared before this court to depose the same. On account of their non examination the plaintiff lost an opportunity to cross examine them to elicit the answers from their mouth. In support of his case. If really the defendants were made to execute Ex.A4 certainly they would have agitated the same immediately after its execution by lodging any police report or by filing a complaint. The silence on the part of the defendants in this regard throws any amount of doubtful circumstances with regard to their defence. Now the fact remained is that the evidence of Pws.1 and 2 absolutely remained unrebutted and there are no favourable circumstances for the defendants appearing from the record as as to succeed in the defence. The plaintiff also lost an opportunity to cross examine the defendants to disprove their allegations as they did not enter into witness. Hence I hold that the evidence on record proves that the defendants executed Ex.A4 promissory note. It reads that it was executed in respect of past debts. A past consideration is also a valid consideration. Absolutely there is no rebuttal evidence o record and there are no favourable circumstances to the defendants so as to succeed in their defence. Hence I hold that the plaintiff is able to prove the execution of Ex.a4 with its enclosure in the manner as pleaded as such the promissory note is true, valid and binding on the defendants the plaintiff is entitled to suit claim. The issues are answered accordingly in favour of the plaintiff and against the defendants.
25. Issue Nos.3
In view of the findings on issue Nos.1 and 2, the suit is liable to decreed.
In the result, the suit is decreed with cots for a sum of Rs.1,94,108/- with interest at 12% p.a. On Rs.1,63,200/- from the date of suit till the date of decree and with future interest at 6% p.a from the date of decree till realisation.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in the open court, this the 16th day of February, 2012.
I ADDL.SENIOR CIVIL JUDGE,
FAC V ADDL.SENIOR CIVIL JUDGE,
(FTC), VISAKHAPATNAM.
Appendix of Evidence Plaintiff:Defendants: Pw.1: M.S.Sastry Pw2. N.Muneeswara Rao Nil
Documents Marked
Plaintiff: Ex.A1 is the telegram notice issued to the defendant by plaintiff on 19-6-2009 Ex.A2 is the office copy of telegram notice dated 21-6-2009 Ex.A3 is the office copy of telegram notice dated 29-6-2009 Ex.A4 is the promissory note dated 5-7-2009 along with calculation sheet of the same date. Ex.A5 is the office copy of the registered legal notice dated 8-9-2009 Ex.A6 is the postal acknowledgment (Exs. A1 to A3 are marked subject to objection regarding proof and relevancy).
Defendant: No evidence reported.
I.A.S.C.J
FAC VASCJ
(FTC),VSP
Order Record 442 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
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| CRLMP.BAIL/400445/2015 | Pamula Kamala Rao vs Dy. Superintendent of Police, ACB, Visakhapatnam | 14 May 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400438/2015 | Dintakurthy Sekhar vs Inspector of Polcie, ACB, Visakhapatnam | 13 May 2015 | Order On Exgibit | — |
| CC/400010/2012 | DY.Supdt.of Police, Anti Corruption Bureau, VZM vs Dr.Vompolu Subhadra | 04 May 2015 | Order On Exgibit | Acquitted |
| CRLMP.BAIL/400384/2015 | Kincha Eswararao vs Dy. Superintendent of Police, ACB, Visakhapatnam | 23 Apr 2015 | Order On Exgibit | — |
| SC/700084/2012 | S.H.O, KANCHARAPALEM vs Surisetty Durga-Durgadu and another | 31 Mar 2015 | Order On Exgibit | Acquitted |
| CRLMP.BAIL/400295/2015 | T.Kanak Raju vs Dy. Superintendent of Police, ACB, Srikakulam | 27 Mar 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400296/2015 | Vandranki Vinod Kumar vs Dy. Superintendent of Police, ACB, Srikakulam | 27 Mar 2015 | Order On Exgibit | — |
| CC/400005/2011 | Inspector of police ACB vsp vs Dadi Trinadharao | 26 Mar 2015 | Order On Exgibit | — |
| CC/400008/2011 | Inspector of police ACB VZM vs Matcha Jayaraj | 24 Mar 2015 | Order On Exgibit | — |
| CC/400009/2012 | Inspector of Police, ACB,VZM vs Lakkaraju Nagabhushanarao | 13 Mar 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400250/2015 | Koyyalamudi Jayaprakash vs Dy. Superintendent of Police, ACB, Visakhapatnam | 13 Mar 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400252/2015 | Bejjipuram Nageswara Rao vs Dy. Superintendent of Police, ACB, Visakhapatnam | 13 Mar 2015 | Order On Exgibit | — |
| CC/400018/2011 | Inspector of police ACB ,VSP., vs Kopati Ganga raju | 11 Mar 2015 | Order On Exgibit | — |
| CC/400008/2012 | Deputy Suptd. of Police vs Potnuru Venkateswarlu @ Venkateswara rao | 06 Mar 2015 | Order On Exgibit | — |
| SC/700070/2011 | SHO PENDURTHY vs AVALA SRINU AND TWO OTHERS | 25 Feb 2015 | Order On Exgibit | Acquitted |
| CRLMP.BAIL/400126/2015 | Sunkesula Siddaiah vs Dy. Superintendent of Police, ACB, Visakhapatnam | 19 Feb 2015 | Order On Exgibit | — |
| T.R.CRLMP/400119/2015 | Gokaraju Gangaraju vs Deputy Supdt. of Police, ACB, Vijayawada | 18 Feb 2015 | Order On Exgibit | — |
| OS/483/2014 | Pachhigolla Appa Rao vs Smt Srikakolapu Rukmini | 18 Feb 2015 | Order On Exgibit | — |
| CC/400029/2006 | Inspector of police ACB , Vzm. vs KantiMahanti Ravindranath | 05 Feb 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400085/2015 | Yadagiri Kannayya vs Inspector of Polcie, ACB, Visakhapatnam | 03 Feb 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400090/2015 | K.V.S. Prasada Rao vs Dy. Superintendent of Police, ACB, Visakhapatnam | 03 Feb 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400091/2015 | Botchala Ananda Kumar vs Dy. Superintendent of Police, ACB, Visakhapatnam | 03 Feb 2015 | Order On Exgibit | — |
| CC/400034/2007 | Inspector of police ACB ,SKLM, VZM vs Bandaru Govinda Rao | 30 Jan 2015 | Order On Exgibit | — |
| T.R.CRLMP/401296/2014 | D.Vara Karthik vs Inspector of Police, ACB, Vizianagaram | 27 Jan 2015 | Order On Exgibit | — |
| SC/700202/2011 | SHO KANCHARAPALEM PS vs Rongali Sai Kiran | 22 Jan 2015 | Order On Exgibit | Acquitted |
| MVOP/424/2011 | Yarra Madhu Babu vs N. srujana | 21 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400018/2015 | Peerubandi Pentayya vs Inspector of Polcie, ACB,Vizianagaram | 13 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400023/2015 | Balivada Usharani vs Dy. Superintendent of Police, ACB, Srikakulam | 13 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/400024/2015 | Mohan Patnaik vs Dy. Superintendent of Police, ACB, Srikakulam | 13 Jan 2015 | Order On Exgibit | — |
| T.R.CRLMP/401169/2014 | Penmetsa Sudha Rani vs Inspector or Polic, ACB, Visakhapatnam | 12 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/401498/2014 | Gondu Rama rao vs Deputy Supdt. of Police, ACB, Visakhapatnam | 08 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/401499/2014 | Pydi Lakshmana Rao vs Dy. Superintendent of Police, ACB, Visakhapatnam | 08 Jan 2015 | Order On Exgibit | — |
| CC/400016/2010 | Inspector of police ACB VZM vs Sariki Venkata Lakshmi | 07 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/401486/2014 | Vanapalli Srinivasa Rao vs Dy. Superintendent of Police, ACB, Visakhapatnam | 02 Jan 2015 | Order On Exgibit | — |
| CRLMP.BAIL/401452/2014 | Pinninti Ramesh Babu, vs Inspector of Polcie, ACB, Visakhapatnam | 22 Dec 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401453/2014 | Nidaganti ramesh Kumar vs Inspector of Polcie, ACB, Visakhapatnam | 22 Dec 2014 | Order On Exgibit | — |
| CC/400024/2011 | Inspector of police ACB ,VSP., vs Sri Tatapudi Kanakaraju | 18 Dec 2014 | Order On Exgibit | — |
| CC/400019/2010 | Inspector of police ACB VZM vs Nakka Malleswararao | 17 Dec 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401418/2014 | Pinninti RameshBabu vs Inspector of Polcie, ACB, Visakhapatnam | 11 Dec 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401424/2014 | Nidaganti Ramesh Kumar vs Inspector of Polcie, ACB, Visakhapatnam | 11 Dec 2014 | Order On Exgibit | — |
| CC/400019/2009 | Inspector of police ACB VSP vs Sriramdas Nagaraju | 10 Dec 2014 | Order On Exgibit | — |
| CC/400032/2011 | Inspector of police ACB ,SKLM, VZM vs Ponnana Chinnababu | 27 Nov 2014 | Order On Exgibit | — |
| CC/400011/2009 | Inspector of police ACB ,VSP., vs Pilligulla Suresh | 26 Nov 2014 | Order On Exgibit | — |
| OS/394/2012 | Allada Eswararao vs Davuluri Narendra | 19 Nov 2014 | Order On Exgibit | — |
| CC/400003/2012 | Inspector of police ACB, Srikakulam Dt., VZM., ran vs Batthula Malleswara rao | 18 Nov 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401336/2014 | Gudabanda Veeranjaneyulu vs Inspector of Police, ACB, Srikakulam | 18 Nov 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401305/2014 | Podugu ravindra Pal Das vs Inspector of Police, ACB, Visakhapatnam | 14 Nov 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401280/2014 | Bankapalli Srinivasa Rao vs Inspector of Police, ACB, Vizianagaram | 11 Nov 2014 | Order On Exgibit | — |
| CC/400023/2011 | Inspector of police ACB ,VSP., vs Sri Vatsavayi Satyanarayana raju | 10 Nov 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401238/2014 | Gudabada Veeranjaneyulu vs Deputy Supdt. of Police, ACB, Srikakulam | 07 Nov 2014 | Order On Exgibit | — |
| CC/400002/2012 | State rep. by Inspector of Police, ACB., VSP., vs Maasala Umapathi | 05 Nov 2014 | Order On Exgibit | — |
| CRLMP.BAIL/401183/2014 | Gundu Someswara rao vs State Rep by its Dy. Suptd of Police , Srikakulam | 08 Oct 2014 | Order On Exgibit | — |
| CC/400025/2011 | Inspector of police ACB , Vzm. vs Vatambeti Ravindra Reddy | 29 Sep 2014 | Order On Exgibit | — |
| CC/400011/2011 | Inspector of police ACB SKM, vs Venkateswara Panigrahi | 26 Sep 2014 | Order On Exgibit | — |
| CC/400030/2006 | Inspector of police ACB ,VZM., vs Dr. Matta Venkateswarlu | 12 Sep 2014 | Order On Exgibit | — |
| CC/400009/2010 | Inspector of police ACB vsp vs Pallantla Subrahmanyam, | 03 Sep 2014 | Order On Exgibit | — |
| T.R.CRLMP/401028/2014 | Saluru Venkata Jagan Mohan Rao vs State rep. by its Inspector of Police, Srikakulam | 01 Sep 2014 | Order On Exgibit | — |
| T.R.CRLMP/401029/2014 | Dadi Ramakrishna vs State Rep by its Public Prosecutor, ACB, Vsp | 01 Sep 2014 | Order On Exgibit | — |
| CC/400029/2011 | Inspector of police ACB , Vzm. vs Sri Edala George varahalu | 28 Aug 2014 | Order On Exgibit | — |
| CC/400005/2012 | Inspector of Police, ACB,VSP., vs Sri Kupili Ganesh | 27 Aug 2014 | Order On Exgibit | — |
| CC/400001/2011 | Inspector of police ACB vsp vs Mathsa Tirupathirao | 25 Aug 2014 | Order On Exgibit | — |
| CC/400059/2006 | Inspector of police ACB ,VZM., vs Kota Ashok | 14 Aug 2014 | Order On Exgibit | — |
| CC/400009/2008 | Inspector of police ACB ,VSP., vs Nadupuri Apparao | 05 Aug 2014 | Order On Exgibit | — |
| CC/400020/2010 | Inspector of police ACB SKM, vs Mandavilli Venkata Satya Sarveswara Lingam | 30 Jul 2014 | Order On Exgibit | — |
| CC/400025/2010 | Inspector of police ACB VZM vs Setikam Krishna Rao | 21 Jul 2014 | Order On Exgibit | — |
| CC/400015/2010 | Deputy Suptd. of Police vs Morri Kailash Rao | 16 Jul 2014 | Order On Exgibit | — |
| CC/400027/2011 | Dy.Supdt., of Police vs Kona Apparao | 30 Jun 2014 | Order On Exgibit | — |
| CC/400021/2010 | Deputy Suptd. of Police vs Payala Gopala Rao | 27 Jun 2014 | Order On Exgibit | — |
| CC/400018/2010 | Inspector of police ACB VZM vs Cholla Srinivasa Rao | 17 Jun 2014 | Order On Exgibit | — |
| CC/400007/2011 | Inspector of police ACB VZM vs Bellukola Appalaswamy | 10 Jun 2014 | Order On Exgibit | — |
| CC/400020/2009 | Inspector of police ACB ,SKLM, VZM vs Mudi Prasada Rao | 16 May 2014 | Order On Exgibit | — |
| CC/400021/2005 | Inspector of police ACB ,VZM., vs Bevara Durga Prasad | 14 May 2014 | Order On Exgibit | — |
| CC/400030/2011 | Inspector of police ACB ,SKLM, VZM vs Boyina Ratna Guptha | 05 May 2014 | Order On Exgibit | — |
| CC/400020/2011 | Inspector of police ACB ,SKLM, VZM vs Sri Birlangi Thavitinaidu | 30 Apr 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400402/2014 | Bypilli Nageswara Rao vs Dy. Superintendent of Police, ACB, VSP | 11 Apr 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400403/2014 | Mudila Poli Naidu vs Dy. Superintendent of Police, ACB, VSP | 11 Apr 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400394/2014 | Kasireddy Veera Venkata Satyanarayana vs State rep by its Deputy Supdt of Police, ACB, VSP | 10 Apr 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400362/2014 | Yadla Satyanarayana vs State rep by Inspector of Police, ACB,VSP | 09 Apr 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400323/2014 | Devagupathapu Ramakrishna alias Krishnababu vs State Rep by its Dy. Superintendent of Police, VZM | 04 Apr 2014 | Order On Exgibit | — |
| CC/400022/2011 | Inspector of police ACB ,VSP., vs Sri Vanthala Gennu | 02 Apr 2014 | Order On Exgibit | — |
| CC/400024/2010 | Inspector of police ACB vsp vs Devaguptapu BalaGangadhar Tilak | 28 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400302/2014 | Alajangi Vijayaprasad vs State Rep by Inspector of Police, Srikakulam | 28 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400303/2014 | Janapalli Mangayamma vs Dy. Superintendent of Police, ACB, Vizianagaram | 28 Mar 2014 | Order On Exgibit | — |
| CC/400027/2010 | Inspector of police ACB SKM, vs Sabbisetty Satyanarayana | 26 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400267/2014 | Devagupathapu Ramakrishna alias Krishnababu vs State rep by its Dy Supdt of Police, ACB, VZM | 25 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400266/2014 | Maradana Srinivasa Rao vs Dy. Superintendent of Police, ACB, VZM | 24 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400277/2014 | Kakarlamudi Suresh Babu vs State Rep by its Dy. Suptd of Police VSP | 24 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400263/2014 | Varanasi Krishna Rao vs State rep by its Spl. Public Prosecutor, ACB, Vsp | 21 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400264/2014 | Mattam jagannadham naidu vs State rep by its Spl. Public Prosecutor, VSP | 21 Mar 2014 | Order On Exgibit | — |
| CC/400005/2009 | Inspector of police ACB ,VSP., vs Anala Satyanarayana | 14 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/209/2014 | Nadipuri Tatalu vs State rep by its Spl. Public Prosecutor, VSP | 13 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400226/2014 | Chintalapudi Satyanarayana vs State rep by its Dy Superintendent of Police, ACB, | 13 Mar 2014 | Order On Exgibit | — |
| CC/400026/2011 | Dy.Supdt.,of Police, VZM., vs Appurubuktha Sriramulu Naidu | 12 Mar 2014 | Order On Exgibit | — |
| T.R.CRLMP/400208/2014 | Karri Rambabu vs State rep by its Dy Superintedent of Police,ACB,VS | 10 Mar 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400190/2014 | Somela Kondala Rao vs State rep by its Inspector of Police, ACB, Vsp | 06 Mar 2014 | Order On Exgibit | — |
| CC/400132/2014 | Resapu Nageswara Rao vs State rep by its Inspector of Police, ACB, Vsp | 19 Feb 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400098/2014 | Vasanthavada Venkata Krishna Sannayya Pantulu vs P.P. rep by Dy. S.P. ACB, Vizianagaram | 10 Feb 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400086/2014 | Lekkala Satyanarayana vs State rep by its Inspector of Police, ACB, Vsp | 05 Feb 2014 | Order On Exgibit | — |
| CRLMP.BAIL/400078/2014 | Setty Lingiah vs State rep. by Dy. SP, Vsp | 04 Feb 2014 | Order On Exgibit | — |
Monthly Orders (Last 12 Months)
| May 2015 | 4 | |
| Apr 2015 | 1 | |
| Mar 2015 | 10 | |
| Feb 2015 | 8 | |
| Jan 2015 | 12 | |
| Dec 2014 | 7 | |
| Nov 2014 | 10 | |
| Oct 2014 | 1 | |
| Sep 2014 | 6 | |
| Aug 2014 | 5 | |
| Jul 2014 | 3 | |
| Jun 2014 | 4 |
Log in for full trend data.
Frequently Asked Questions
How many cases has Sri A.V.Ravindra Babu handled?
Sri A.V.Ravindra Babu has handled 458 court orders since 2011 at Prl District Court Complex, Visakhapatnam. The average disposal rate is 9 orders per month.
What types of cases does Sri A.V.Ravindra Babu hear?
Based on available records, Sri A.V.Ravindra Babu primarily handles Civil matters (Original Suits, Original Petitions) and Criminal matters (Criminal Cases, Sessions Cases) at Prl District Court Complex, Visakhapatnam.
Where is Sri A.V.Ravindra Babu currently posted?
Sri A.V.Ravindra Babu is posted as SESSIONS JUDGE, MAHILA COURT-CUM-VI ADJ at Prl District Court Complex, Visakhapatnam, Visakapatnam, Andhra Pradesh.
Are judgments by Sri A.V.Ravindra Babu available online?
Yes. 27 judgments by Sri A.V.Ravindra Babu are available on Legistro with full text, outcome, and sections cited.
How fast does Sri A.V.Ravindra Babu dispose cases?
Sri A.V.Ravindra Babu disposes approximately 9 cases per month, based on 458 orders handled over their tenure at Prl District Court Complex, Visakhapatnam.
Since when is Sri A.V.Ravindra Babu serving?
Sri A.V.Ravindra Babu has been serving at Prl District Court Complex, Visakhapatnam since 2011.
Case Types
Posting History
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Nov 2014 — May 2015SESSIONS JUDGE, MAHILA COURT-CUM-VI ADJ · 6 orders
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Nov 2014 — Nov 2014SESSIONS JUDGE, MAHILA COURT-CUM-VI ADJ
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Dec 2012 — May 2015III ADDL. DISTRICT AND SESSIONS JUDGE-CUM-ACB · 129 orders
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Apr 2012 — Dec 2012V ADDL. DISTRICT AND SESSIONS CUM FAMILY JUDGE · 158 orders
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Apr 2011 — Apr 2012I ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) · 158 orders
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Apr 2011 — Apr 2012V ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) · 7 orders
Outcomes on Record
Other Judges at this Court