IN THE COURT OF SPL. JUDGE FOR ACB CASES, VISAKHAPATNAM.
Present: Sri G.V.Krishnaiah, B.A. BL.,
Spl. Judge for ACB Cases.
Monday, this the 23rd day of July, 2012.
C.C.No. 17/2002
Between: State rep. by the Deputy Superintendent of Police, Anti Corruption Bureau, Visakhapatnam. …Complainant
And: Yerra Rajarao, son of late Gopalam, Formerly Deputy Commercial Tax Officer, Dondaparthy, Visakhapatnam. …Accused officer.
This case coming on this day before me for final hearing in the presence learned Spl. Public Prosecutor for ACB Cases, Visakhapatnam range and of Sri GVPBS.Murthy, Advocate for Accused, and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
This is a case of disproportionate assets against a Government servant who worked in the Commercial Tax Department. Accused joined in
Government service on 11-12-1965 and retired on 30-06-1998. The cheque period is taken from 11-12-1965 to 06-10-1997 i.e. from the date of entry into service to the date of conducting housed searches. During the search and after the search the Investigating Officers collected information about the assets, known sources of income and expenditure of A.O. As per the charge sheet which contains three tables regarding the assets, income and expenditure, accused acquired disproportionate assets to the tune of
Rs.18,93,966/-. It is necessary to extract the tables given in the charge sheet since the evidence let in by the prosecution is in relation to the table.
Abstract of Assets.
S.No.Description of propertyValue
01.Acquired a tiled housed in an extent of 300 sq. yards at 10,000-00 Addepallivari street, Vizianagaram in the name of accused.
02.Acquired a housed site in an extent of 300 sq.yards at 750-00 Thotapalem Panchayat, Vizianagaram in the name of accused
03.Acquired a housed site measuring 300 sq.yards at 4,500-00 Dharmapuri, Vizianagaram in the name of his wife.
04.Acquired a housed site measuring 300 sq. yards at 4,500-00 Dharmapuri Vizianagaram in the name of his daughter.
2
05.Acquired a housed site measuring 300 sq. yards at 4,500-00 Dharmapuri Vizianagaram in the name of his son Y.Vijay Gopal.
06.Acquired a flat NoT/1, Ramaraj Towers, Rednam gardens, 5,60,000-00 Waltair Ward, Visakhapatnam in his name.
07.Acquired a housed site in Plot No.4, Rednam gardens, Waltair 4,00,000-00 Ward, Visakhapatnam from Smt. N.Sailaja.
08.Acquired Maruti Omni Van by taking loan from Appel Credit 1,28,350-00 Corporation, Visakhapatnam bearing reg. no.AP 31 J 3031.
09.Acquired Bajaj Cub Scooter in the name of his son Y.Vijay 17,654-54 Gopal Yadav.
10.Developed tiled housed at Addepallivari street in D.No.14-1-3,06,000-00 19 and constructed first floor.
11.Works under taken in Flat No.T/1,Ramraj Towers, Rednam 1,65,000-00 Gardens, Visakhapatnam by the accused.
12.Outstanding balance of Rs.408-00 in account no.2894 of 408-00 Oriental Bank of Commerce, RTC Complex, Visakhapatnam in the name of Y.Vijaya Gopal Yadav, son of accused.
13.Outstanding balance in the account no.32136 of Andhra 1,282-00 Bank, Dwarakanagar, Visakhapatnam in the name accused.
14.Outstanding balance of joint account of accused and his wife 13,500-00 at Bharat Overseas Bank, Dwarakanagar, Visakhapatnam vide account no.68.
15.Outstanding balance in the account no.12665 of the State 1,449-35 Bank of India, Dwarakanagar, Visakhapatnam in the names of accused and his wife.
16.Housed hold articles found in the housed of accused on the 1,59,244-00 date of search.
17.Value of articles found during search of Yadu Tax Consutancy, 52,429-00 Rednam Gardens, Visakhapatnam.
18.Value of Gold pledged with State Bank of India, 64,400-00 Dwarakanagar, Visakhapatnam. Total:18,93,966-89 Rounded to 18,93,966-00
Abstract of Income
01.Total salaried income of Y.Rajarao from 12/65 to 10/976,01,786-00
02.Accused sold out a housed site of 300 sq.yards at 30,000-00 Thotapalem, Vizianagaram vide document no.1574/90.
03.Accused has taken loan from LIC Housing Limited, 3,00,000-00 Visakhapatnam.
04.Accused has withdrawn a sum of Rs.1,70,000/- as part final 1,70,000-00 withdrawal from GPF.
05.Gold loans taken from the Vizianagaram Cooperative Urban 2,99,244-00 Bank Limited, Visakhapatnam.
06.Gold loans taken from the Visakhapatnam cooperative Bank 86,000-00 Limited, Visakhapatnam.
07.Loan taken from the Visakhapatnam commercial tax 30,000-00 department employees cooperative credit society limited, Visakhapatnam.
08.Chit amount received through auction from Himigiri Chits & 81,725-00 Finance Company, Visakhapatnam in the name of Y.Prameela, wife of accused.
09.Gold loans taken from the State Bank of India, 73,000-00 Dwarakanagar, Visakhapatnam in the name of accused and in the name of his wife Smt. Y.Prameela.
10.Income claimed by the accused out of sale of ancestral 5,000-00 housed in D.No.12-7-5 at Vizianagaram acquired by the father of accused. Total:16,76,755-00
Abstract of expenditure.
01.Expenditure for the maintenance of family of accused from 5,61,960-03 11-12-1965 to 04-10-1997.
02.Educational expenditure of children of accused. 94,910-00 3
03.Expenditure for stamps and registration fee for the housed 7,234-00 sites acquired by accused in his name and in the name of his family members.
04.Housed tax paid towards the housed at Addepallivari street, 9,780-15 Vizianagaram to the Vizianagaram Municipality.
05.Housed tax paid towards the housed in Flat No.T/1, Ramraj 5,437-50 towers, Rednam gardens, Visakhapatnam.
06.Electricity charges paid towards the service connection 7,974-00 No.100243/1325 connected to the Flat No.T/1, Ramraj Towers, Rednam Gardens, Visakhapatnam.
07.Telephone deposit and minimum telephone rentals paid 6,575-00 towards telephone no.555364 of accused.
08.Chit amount paid towards chit no.VLF-2/50 of Sriram Chits in 62,258-00 the name of Smt. Y.Prameela.
09.Gold loans repaid to the Vizianagaram Cooperative Urban 3,21,113-71 Bank Limited, Vizianagaram.
10.Gold loans repaid to the Visakhapatnam cooperative Bank 67,403-00 Limited, Visakhapatnam.
11.Repayment of loan from LIC Housing Finance Limited along 2,22,584-40 with interest.
12.Chit subscription paid to Himagiri Chits by the family 69,912-00 members of accused.
13.Amount paid towards LIC policies by the accused and his 1,21,997-20 family members.
14.Loan amount repaid to the Visakhapatnam Commercial Taxes 13,665-00 Department employees cooperative credit society limited, Visakhapatnam.
15.Cash receipt of Ratnam Mill stores, Vizianagaram towards 6,487-00 purchase of 0.5 HP Jet pump electrical and engineering material.
16.Tax books and law books purchased from Asia Law House, 52,747-00 Hyderabad.
17.Advance and rents paid towards office premises of Yadu Tax 16,000-00 Consultancy, Ramnagar, Visakhapatnam.
18.Amount paid to the Peerless General Finance & Investment 1,000-00 Company Limited, Visakhapatnam.
19.Amount paid to the Janachaitanya Housing Ltd. Gajuwaka, 1,100-00 Visakhapatnam.
20.Average maintenance charges of Maruti Van bearing no.AP 31 20,600-00 J 3031 of accused. 16,70,737-99 Total:Rounded to 16,70,738-00
03.After obtaining sanction, accused was charge sheeted before the court for the offences U/sec.13(2) r/w 13(1) (e) of P.C.Act.
04.After filing of charge sheet, accused appeared before this Court and received copies of documents as required U/sec.207 Cr.P.C.
05.Accused was examined U/sec.239 Cr.P.C. and charge for the offence under sec. 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 was framed, read over and explained to accused in Telugu for which he denied and claimed to be tried.
06.On behalf prosecution PWs 1 to 17 were examined and Exs P1 to
P82 were marked. Accused was examined under Sec. 313 Cr.P.C with regard 4 to the incriminating circumstances appearing against him. On his behalf DWs 1 to 14 were examined and Exs.D1 to D27 were marked.
07.Arguments were heard. Accused filed detailed written arguments clearly indicating items of assets, income and expenditure which are not disputed by the accused and which are disputed by the accused. Written arguments also contain additional income pleaded by accused by way of letting evidence.
08.Now the point for consideration is:
1. Whether the additional income pleaded by the accused is proved, and if the income is proved whether the disproportionate assets are made out and what is the assumption regarding disputed items?
09.Before discussing each item disputed by the A.O., the undisputed items may be noted.
Undisputed items of assets: Item no.1,8,12 to 15 and 17.
Undisputed items of income: Item no.2,4,6,7,8 and 9.
Undisputed items of expenditure: Item no.3 to 11, 13,14 and 16 to 20.
For the sake of convenience I will refer to the cross-examinations of
DW3, DW4 and DW5 in brief.
In the cross-examination of DW3 he stated that by the date of entering into service in the commercial tax department he might have account balance of Rs.5000/- or Rs.10,000/- in the cooperative bank, Vizianagaram. He admitted that he did not intimate the authorities of commercial tax department with regard to his bank balance and so also with regard to the movable and immovable properties. He also admitted that he did not submit in his annual property returns with regard to the receipt of 8 tolas of gold and Rs.10,000/- cash from his in laws and so also he did not mention in his explanation. He did not remember whether he submitted annual property returns during his tenure as L.D.C and U.D.C. He denied a suggestion that his father is not a civil contractor. He admitted that he did not obtain prior permission before entering into agreement of sale for item no.7 of assets. He admitted that neither he intimated to the authorities with regard to the amount given by his mother for the purchase of scooter to his son nor submitted A.P.Rs in that 5 regard. He had not evaluated the further construction to item no.10. He admitted that no amount of Rs.46,250/- was returned in respect of item no.11 of assets. He calculated the value of housed hold articles at Rs.60500/- after deducting the value of old articles. He do not remember if he noted the value of housed hold articles in his explanation as Rs.82,184/-. He admitted that he did not inform the gold ornaments received as gifts by him. According to his calculation he received an amount of Rs.8lakhs towards his salary during the check period i.e. in the commercial tax department. It does not includes the salary prior to check period. He does not remember what he mentioned in his explanation given to the I.O. He admitted that during his explanation he claimed his salary as Rs.8lakhs includes the salary of Rs.50,000/- prior to check period. He cannot give the particulars of the salary for the missing period. He admitted that he did not furnish any proof with regard to the salary for the missing period and that he did not obtain prior permission nor intimated to the competent authority with regard to taking of gold loan of
Rs.24,000/-and Rs.50,000/- on 07-05-1997 and 14-03-1997 respectively. His father did not execute any will. No relinquishment deed was executed by his father and two sisters by relinquishing their share over the old housed purchased by his father which was sold for Rs.10,500/-. He admitted that he did not obtain prior permission from the competent authorities with regard to hand loan of Rs.1,65,000/- obtained from the friends and relatives. He denied a suggestion that he did not obtain any hand loans either to his relatives or friends and that in order to boost up his income he was deposing falsely. He admitted that prior to institution of partition suit by his wife his brother in law and his mother in law used to look after the affairs of 32 acres of land. Since they are not having cordial relationship with his wife’s mother and brother, she filed the partition suit. He did not know if the MRO Vizianagaram declared vide
RC.No.863/88 dt.12-04-1990 that S.No.1/4, 4/2 and 4/1 are the barren lands
as per 10(1) adangal. He did not intimate to authorities after his reinstatement with regard to the income of Rs.75,000/- during the dismissal and he did not also furnish any copy of account showing the balance of income 6 during the dismissal period. He was unable to secure the presence of tenants of his housed bearing door no.14-1-19/1 19/2, 19/3 19/4. He obtained voters list of Vizianagaram assembly constituency for the year 1995 in respect of polling booth no.112 under RTI Act issued by Tahsildar Vizianagaram. The partner of East India match factory, Kovillpatti dt.01-03-2012 addressed letter to him where in the particulars of rent paid by East India match factory was mentioned.
DW4 in her cross-examination deposed that the extent of 32 acres of land which was involved in litigation is a single piece of land. Except her oral evidence there is no other proof with regard to the alleged lease to third parties and the income there from after she became the highest bidder in the auction conducted by receiver. She was not an income tax assese. She denied a suggestion that they did not run any hostel. They could save
Rs.5000/- or Rs.6000/- per month after meeting family expenditure at the time of running the hostel.
DW5 in his cross-examination admitted that he filed income tax returns subsequent to the ACB raid and that he filed returns because his income exceeded Rs.1,00,000/-. He admitted that there is no seal and stamp of income tax department on Ex.D20.
ASSETS
10)Since the value of the item numbers 1 to 8 of assets is not disputed, I will take up the disputed items.
Item No.9:As far as item no.9 is concerned the fact that it was purchased in the name of AO’s son Vijay Gopal is undisputed. AO’s explanation for this item is that his mother gave the money for purchase of this item(two wheeler motor vehicle). On this aspect the AO wants to make out that his mother was having income. The scooter was purchased for
Rs.17,654-54ps on 04-10-1993 which is borne out by Ex.P48 receipt.
According to AO B.Chinnappadu who is the father of AO’s mother executed a registered will. As per that will mother of AO got some lands and some cash.
Mother of AO used to get some income on that land and in those she used to 7 lend money to the residents of Vizianagaram. Subsequently she sold away the properties and also purchased housed sites at Vizianagaram with her income.
Mother of AO stayed with him till her death and she used to contribute her income to the children of AO out of love and affection. Considering the explanation of AO on the source of income for purchasing this item, it cannot be rejected outright sine there is some evidence that AO’s mother is having some properties and she sold housed sites. Therefore the explanation of AO for the source of income of this item is accepted.
11)Item No.10: On this aspect the estimation of ACB is
Rs.3,06,000/- where as it is only Rs.2,25,000/- according to AO. The main contention of AO is that he made developments to the housed in Addepallivari street, Vizianagaram between 1987 and 1990 where as it was inspected on 08- 03-2001 and some of the improvements made b the AO after the check period were also included. According to PW7 who worked as D.E., Engineering in
ACB, he inspected the building on 08-03-2001. According to him he considered the year of construction of first floor in the year 1989-90. He says that he did not enclose the rates of assessors pertaining to the year 1989 or 1990. AO examined DW14 who prepared building plan of the existing ground floor building at Addepallivari street, Vizianagaram belonging to AO. When the
AO approached him he prepared estimate for the first floor by considering the
SSR rates pertaining to 1987-88. His estimate is marked as Ex.D24. In the cross-examination this witness stated that he cannot give the date and year which the construction or renovation was started and completed. The main objection with regard to the evidence of this witness is that his signature on the building plan approved by the Vizianagaram Municipality on 04-04-1987 does not tally with the signature now. Apart from the evidence of DW14 AO relying upon Appendix VII with regard to source of funds and the explanation for construction of the ground and first floor. AI received a notice from
Income Tax Department with regard to source of income during the financial years 1988-89, 1989-90, 1990-91. He gave explanation which is available in
Appendix VII marked as Ex.D9. In this explanation the estimated cost of 8 construction is Rs.2,42,846/-. Therefore, the actual amount spent according to AO’s calculation i.e. Rs.2,25,000/- cannot be accepted and his calculation found in Ex.D9 is Rs.2,42,846/-. One question was put to PW7 with regard to slab of the first floor disputing the cubic meters noted by PW7 and suggesting that it is only 11.56cubic meters. This aspect was not spoken to by DW14.
Considering the above facts and the fact that the building was inspected by
PW7 in the year 2001, the amount spent by AO for renovation is taken as
Rs.2,50,000/-.
12) Item no.11: This item relates to the cost of additions and alterations made in the flat for which AO incurred Rs.1,65,000/-. Prosecution once again relies upon the evidence of PW1 with regard to this item. AO’s explanation is that about 3 ½ years after the check period PW7 visited the flat.
According to AO he spent only Rs.1,05,000/-. AO further relies upon PW8 who sold the flat to AO. PW8 in his cross-examination stated that Rs.22,080/- was deducted towards cost of flooring work and that AO instead of tiles got fixed marbles for flooring. PW7 had shown rupees forty six thousand and odd towards fixing of marbles and this amount has to be deducted. Further PW7 had shown Rs.8,000/- towards cost of Aluminium grills. According to PW8 it was fixed by the builder and cupboards were got made by AO after 1998 i.e.
after the check period.
13)Now the contention of AO is that Rs.46,000/- fixed by PW7 as cost of marbles and labour for fixing marbles has to be deducted. PW8 is the witness examined by prosecution with regard to purchase of flat by AO for a sale consideration of Rs.6,06,250/-. According to him Rs.46,250/- was reduced from the sale consideration and only Rs.5,60,000/- was received by him. PW8 did not state specifically in the cross-examination that Aluminium windows were fixed to all the flats by the builders. Therefore Rs.8,000/- cannot be deducted. Cupboard work was got done by AO in 1998. When AO had spent extra amount for fixing marbles, naturally he had to bear the extra expenditure. Therefore considering the explanation for marbles expenditure of 9
Aluminium grills including the cup boards work, the expenditure on this item by AO can be taken as Rs.1,40,000/-.
14)Item no.16: This item relates to the value of housed hold articles found during the search of the housed of AO. PW1 is one of the mediator who was present at the time of search. Gold and silver articles were found in the housed were old according to PW1. He also stated that the nature, acquisition and time of acquisition of the seized articles was mentioned in the inventory list as per the information given by AO. Basing on the evidence of PW1 that the articles found in the housed were old, AO is seeking deduction of the values. In the inventory proceedings each movable found in the housed of AO was noted. The year of acquisition was noted differently for each item and the cost of the item is noted. The year of acquisition of Gold and Silver ornaments were also noted. In the written arguments the list of housed hold articles which were not acquired by AO has been given. When we look at this annexure we can find that ONIDA Colour Television, ONIDA Washing machine and Kelvinator Refrigerator, 2 in 1 tape recorder and all the items which are having substantial value are sought to be deleted by AO on the ground that they were acquired by his father and mother. It is also stated in the cross- examination that the receipt for ONIDA Colour Television is in the name of
AO’s mother though available was not seized. The Photostat copies of the bills for ONIDA Colour Television purchased in 1991 in the name of AO’s mother,
Radio purchased in the name of AO’s mother in the year 1973. Taking in to consideration the fact that AO’s mother had purchased some articles, their value being ONIDA Colour Television, Philips Radio, an amount of Rs.30,000/- is deducted from the value of housed hold articles.
15)Item No.18: According to AO these gold articles were not purchased by him and they are part of the gold which was declared by him at the time of entry into service. According to him he declared 280grams.
Taking into account the fact that AO did not come from a poor family, these gold items cannot be said to have been acquired by AO. Every family 10 possesses some gold and at the time of marriage gold articles are presented.
Therefore the explanation of AO is accepted for this item.
INCOME
16)Item no.1: In the calculation got made by AO, major items included are two GPF Part final withdrawals which are already considered by
AO under item no.4 of Income. During the course of arguments, Advocate for
AO contended that already these two items are considered. As far as difference in pay & allowances are surrender leaves to the tune of Rs.34,170/- which has to be considered taking into account Ex.P20 prepared by PW3. It can be seen that DA arrears are considered and included in Ex.P20. The calculation of PW3 admittedly is not based on any authentic record as admitted by him in cross-examination. Where as the calculation made by DW15 is said to be based on Service Register. One fact which has to be noticed is that PW3 did not consider earned leave drawn by AO. Taking into account all these facts
Rs.34000/- and odd is included in this item. Total comes to Rs.6,35,956/-
17)Item no.5: This item relates to gold loan taken by AO from
Vizianagaram cooperative urban bank. The calculation of AO is about
Rs.35,000/- more than the calculation of prosecution. The relevant document is Ex.P37 which contains the Photostat copies of ledger extracts.
S.No.Loan no.DateNameAmount.
01.1198414-06-1994In the name of AO’s wife20,000/-
02.4177329-06-1989In the name of mother of AO8470/-
03.4851430-03-1994In the name of AO11500/-
04.4851330-03-1994In the name of AO27500/-
05.4392823-04-1991In the name of AO23245/-
06.5146024-01-1996In the name of AO34400/-
07.4933510-10-1994In the name of AO’s wife17000/-
08.5023905-05-1995In the name of AO’s wife5600/-
09.4262130-04-1994In the name of AO25000/-
10.371907-11-1991In the name of AO’s son 20000/-
11.29-10-1988In the name of AO and son 20000/-
12.30-09-1995In the name of AO and son 40000/-
13.524214-03-1997In the name of AO and son 50000/- Out of Ex.P37 set of papers two loans are not taken by AO that AO is the surety for those loans. Hence they cannot be included as income of AO.
Therefore the objection of the AO that the calculation of the totals is wrong cannot be accepted. Hence this item is accepted at Rs.299,244/-.
18)Item no.10: This item relates to sale proceeds realized by sale of property of AO and his sister in the year 1973. Plea of AO is that sisters were 11 married and they did not claim any share in the property. Prosecution has taken this item as Rs.5,000/-. Nobody is examined to show that the sisters have relinquished their rights orally. Therefore the plea of AO is rejected.
ADDITIONAL INCOME PLEADED BY AO
19)Item no.1: AO says that he borrowed hand loans for
Rs.1,65,000/- at the time of purchase of housed site at Visakhapatnam from one Sailaja Ravindra covered by Ex.P45 agreement. AO says that he borrowed hand loan of Rs.165,000/- for the purpose of purchasing this item. In order to prove these hand loans, he examined DW8 to show that DW8 and his brother lent Rs.20000/-, DW9 to show that DW9 lent Rs.25,000/- (DW9 in turn had taken loan from Cooperative Urban Bank on 26-08-1997 under Ex.D21 receipt)
DW10 who is younger sister of wife of AO who lent Rs.50,000/-. DW11 who lent Rs.20,000/-, DW12 who stated that his mother lent Rs.50,000/- to AO. In the written arguments it is mentioned that AO submitted a letter to Deputy
Commercial Tax Officer, Visakhapatnam regarding his intention to purchase site at Rednam gardens for Rs.5,22,000/- and advance payment of
Rs.4,00,000/- from out of the loans borrowed by him surplus income from previous years etc.
20)Ex.P45 was seized at the time of searches. It is an agreement of sale inrespect of 261 sq.yards of site. The total sale consideration is
Rs.5,22,000/-. On the date of agreement Rs.150000/- was paid as advance and on 16-09-1997 Rs.250000/- was paid towards sale consideration. Ex.D15 is the appendix 13 relied upon by AO. It contains the application in format seeking previous sanction for purchase of immovable property. Market value is mentioned as Rs.5,32,000/-. The source of income shown is surplus income from the previous assessment year to the tune of Rs.2,09,000/- and odd loans from Cooperative Bank, Vizianagaram and Visakhapatnam, part final withdrawal of P.F., gold loan from SBI, Dwarakanagar, chit amount received from Himagiri chits, revision amount received from NCL Nirman limited. A total of Rs.4,81,000/- is shown as income from the above loans. This is in addition to the surplus income to the previous assessment years. In the same 12 file we find an application addressed to Deputy Commissioner of Commercial
Taxes, Visakhapatnam through proper channel on 27-09-1997. In this letter the sale consideration is mentioned as rupees 3.86lakhs. Source of income is attached to this letter are different. Schedule 13 of Ex.D15 there is no mention about the personal loans in these abstract. The sale consideration is shown as rupees 3.86lakhs and the cost of the site is calculated at Rs.1450/- per sq.yard. Thus Ex.D15 is not reliable with regard to actual cost of purchase of the housed site. The letter addressed to the DCTO is in contradiction to
Ex.P45 with regard to quantum of sale consideration. In the letter to Deputy
Commissioner, AO did not mention in the abstract of source of income, the so called personal loans totaling Rs.1,65,000/-. Therefore Ex.D15 is not reliable and inspite of evidence of DWs 8 to 12, the hand loans are not accepted. I am compelled to come to this conclusion inview of the clear intention on the part of accused to suppress the taking of hand loans in his effort for permission and restricting the total sale consideration to rupees 3.86lakhs as against the actual consideration of Rs.5,22,000/- borne out by Ex.P45.
21)Item no.2: The sale of gold articles is shown in the source of income for the purchase of apartment in Rednam Gardens, Visakhapatnam.
PW10 stated in the cross-examination that accused sold gold on two occasions in his share. Therefore this item of additional income is accepted.
22)Item no.3: AO is claiming Rs.20,000/- as advance of rents at
Rs.5,000/- for each tenant. On this aspect there is only oral evidence of accused that he received Rs.5,000/- as advance from each tenant. Even if the tenants who were in possession prior to the check period could not be examined, the present tenants could have been examined to speak that AO is in the habit of taking advance. The housed of AO is situated in Vizianagaram which is a small town. Advance of Rs.5,000/- in such towns for which there is no documentary evidence with regard to receipt of advances and the sole evidence of AO cannot be relied upon to prove this item. Hence this item of
additional income is rejected.
13
23)Item no.4: The housed at Addepallivari street, Vizianagaram was purchased by accused in the year 1973. The Investigating Officer did not consider the rental income on this housed for the reason that there was no permission from the competent authority to purchase this house. Accused and his family members resided in the housed and the second portion was let out.
Accused is claiming rents from 1973 to 1987 from one portion. The purchase of the housed was without permission that the accused was given the punishment of denying one increment to him. Investigating officer appears to have take into account the effect of the permission introduced to sec.13 in the year 1988 with regard to consideration of income. The amendment cannot be applied with retrospective effect and non consideration of income from the housed by the I.O. is not justified. Therefore this amount is accepted.
24)Item no.5: It is a fact that between 1987 and 1990 accused got his building at Addepallivari street, Vizianagaram renovated and constructed ground portion plus first portion. The expenditure for the construction was also considered by the I.O. In the income tax returns filed by accused the rental income is shown. Hence this income is accepted from 1991-92 up to 1996-97 to a total Rs.2,36,400/-. AO claimed rental income for 1997-98 also but the check period ended in 1997 itself.
25)Item no.6: This item relates to agricultural income of AO’s wife.
According to AO there was a dispute between his wife and her brother with regard to partitioning of their family properties and a suit came to be filed in the year 1988 in the Sub Court at Vizianagaram. In that suit a receiver was appointed who conducted auction and AO’s wife became successful bidder. For three years she has got the land cultivated. In this regard prosecution examined PW6 who worked as Mandal Revenue Officer, Vizianagaram. He furnished the information of lands belonging to Peethambaram i.e. father in law of AO. He stated that he did not personally verify the lands covered in
Ex.P23 (Ex.P23 is letter from PW6 to the Inspector, ACB relating to the lands of AO’s wife and her brother). These lands were inspected by ACB Inspector on 10-10-1997 in the presence of two mediators one of whom is examined as 14
PW4 (A.Mohanarao). He has clearly stated that there were tanks in the surveyed land and there was also a paddy field. According to him some of the lands were not under cultivation. The evidence of PW4 thus goes to show that there were tenants and also paddy cultivation. AO’s wife received income from 1994 to 1997. DW2 is examined to show that he raised fish culture and paid the lease amount. Considering the evidence adduced by AO in the form of
DW2 and evidence of his wife as DW4 and also the evidence of DW1, the income received by AO’s wife calculated at Rs.2,85,000/- is accepted.
26)Item no.7: Income of son of AO: Even according to PW11 who is chartered accountant he paid Rs.2,000/- to Rs.2,500/- per month to AO’s son in the year 1996-97. PW12 who is also a chartered accountant says that he entrusted work to Vijay Gopal Yadav (son of AO) for about 3 to 4 months in the year 1996. he stated that Gopal Yadav used to get Rs.2,500/- or
Rs.3,000/- per month for the entrusted work. PW13 says he is practising taxation in the company since 1994. He says that he used to entrust some sales tax and Vantek engineering company matters to AO’s son. In the cross- examination PW13 admitted that he issued Ex.D1 certificate to say that
Rs.15,200/- was paid as consulting fee to AO’s son. DW5 son of AO is also claiming income during the period of his graduation. According to him he worked part time jobs like writing day books and ledgers in different shops and earned Rs.12,000/- during 1992-93 and Rs.19,200/- during 1993-94. For this income there is no evidence except the oral evidence of DW5. By 1992-93 the
AO was in Commercial Tax department. It is highly improbable that the son of an officer would go to small shops and write day books and ledgers. Even otherwise, the income claimed during that period is not supported by any other evidence and therefore it is rejected. Considering the other evidence i.e.
evidence of PWs 11 to 13 and income tax returns submitted by DW5, his income is taken as Rs.1,57,000/-
27)Item no.8: AO is claiming Rs.75,000/- as income by running a hostel in the ground floor of his housed at Vizianagaram from March 1991 to
June 1991 during which period he was under suspension due to conviction in 15
CC.No.26/1987. DW13 is examined to show that he worked as attender in the
hostel. Except the oral evidence of AO and the evidence of DW13, no other than evidence is produced in this regard either with regard to actual running of the hostel or with regard to number of students in the hostel. However claiming that running a hostel during March, April and May does not appear to be probable. During March and April students will be already in a hostel and appearing for examinations. For all his scrupulousness in filing income tax returns, no account book is produced to show that he earned Rs.75,000/- in this period by running a hostel. Very claim of running a hostel at the end of the educational year is highly improbable. Therefore this item is rejected.
28)Item no.9: Amount received by AO from his mother: According to
AO his mother was having properties and she sold housed site at Thotapalem to one Bathula Pentayya. Thus AO says that his mother had given Rs.56,000/- on three occasions. Considering the fact that AO’s mother was having properties, this amount is accepted.
29)Item no.10: AO says that his mother gave Rs.10,000/- to his daughter Madhavi. This investment is available in Appendix VIII marked as
Ex.D9. Therefore this item is accepted.
30)Item no.11: FDR in Vizianagaram cooperative bank in the name of AO’s daughter. The details of the FDR were seized during the course of housed search and part of the certificate issued by bank is Ex.D9. Therefore this item is accepted.
31)Item no.12: Income on maturity of Recurring Deposits: This amount of Rs.6,900/- is claimed by AO. The certificate with regard to R.D’s were seized during housed search and therefore this item is accepted.
32)Item no.13: Profit on shares sold by AO’s son: Rs.32,650/- is claimed as income earned on sale of shares. The details of the shares purchased by AO’s son sold by him and actual profit received by him ought to have been proved with regard to bank account entries. The oral evidence of
AO’s son examined as DW5 is not sufficient to accept this income. Hence this item is rejected.
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33)Item no.14: Cash gift received by AO’s wife at the time of marriage: DW4 says that she received cash gifts of Rs.10,000/- from her parents at the time of marriage. Rs.10,000/- in the year 1971 is a substantial sum. In the cross-examination DW3(AO) stated that he did not mention in his explanation about receipt of Rs.10,000/- as cash from his in always and he did not also submit the same in his annual property returns. Hence the plea of AO is rejected for this item.
EXPENDITURE
34)Item no.1: Expenditure for maintenance of family: Family expenditure is calculated at Rs.5,61,960-03ps as per Ex.P68 prepared by
Deputy Director of ACB. Investigating Officer had shown expenditure of items like educational expenditure, repayment of loans, electricity charges, telephone charges etc. Therefore AO says that the kitchen expenditure does not come to more than 35% of the entire salary. It is true that calculation made by ACB officials with regard to housed hold expenditure is on a higher side. AO was under suspension for a considerable period of time and obviously he must have been constrained to have limit his expenditure during that period. Taking into account the fact that AO lived in his own housed up to 1987 and the period of suspension undergone by him, the housed hold expenditure is taken at 40% of the salaried income which comes to
Rs.2,60,000/-.
35)Item no.2: Educational expenditure: This is put at Rs.94,910/- by
I.O. and claimed at Rs.57,661/- by accused. On this item the plea of accused is that second son of AO joined college in the month of August 1997 and the raid took place in the month of October 1997. Investigating Officer should not have taken Rs.52,500/-for the two academic years fee. Therefore considering the non-mentioning of income in Ex.P67to P69 the amount comes to
Rs.57,661/- as pleaded by accused. Hence the plea of accused is accepted for this item.
36)Item no.12: Ex.P66 is the letter furnished by Himagiri finance limited. In this letter the total amount paid up to 04-10-1997 by AO is put it 17
Rs.35,550/- and AO’s wife is put at Rs.18,787/-. Regarding another chit in the name of AO’s wife it is stated that the ledgers are not available in office. I.O.
examined as PW16 deposed at page 15 regarding this item. As per charge sheet this item is item no.12 of expenditure. He says that taking into account the ledger extract chit subscription comes to Rs.69,912/-. On a calculation of the ledger amount the calculation of the AO is found to be correct and therefore this item of expenditure is accepted at Rs.54,337/-.
37)Item no.15: AO’s objection is that jet pump was installed at
Vizianagaram but this expenditure is duly taken in the entire estimation for the expenditure of the housed at Vizianagaram. For this the explanation of AO is accepted and this amount will be deleted from expenditure.
38)Another item which has to be discussed is Rs.52,420/- shown in the assets as the value of the books found in the tax consultancy office of AO’s son. According to AO this item is shown in expenditure side as well as in assets side. This fact was assigned by AO in his evidence but it was mistakenly shown as undisputed item both in the list of assets as well as in the list of expenditure in the written arguments. Therefore this item in expenditure is deducted. The final calculation comes as follows:
ASSETSEXPENDITUREINCOMESAVINGS
Rs.17,00,912/-Rs.12,56,720/-Rs.25,80,129/-Rs.3,77,501/-
39)According to this calculation an amount of Rs.3,70,000/- and odd is found to be unexplained by the A.O. but the following facts have to be taken into account while assessing this case.
1. Over the check period of 32 years AO was under suspension or dismissal for about 11 ½ years. Assuming that AO was earning illegally, there was no scope for such earning during period of suspension. The fact that he was under suspension or dismissal for 11 ½ years is a fact which goes against illegal earning. Basically AO purchased only two immovable properties during his life time, that too after his children’s education was almost completed.
While assessing the income, expenditure and assets of a Government servant over a period of 32 years it is difficult to arrive at a firm conclusion unless assets are purchased in quite succession even while spending for the education 18 of children and other expenses. Though salaries were moderate in 1960’s and 1970’s there was no scope for much expenditure on luxuries. Under these circumstances it is a fit case where the accused can be given benefit of doubt.
Accordingly the point is answered.
40)In the result, the accused is found not guilty for the offences punishable U/sec.13(2) r/w 13(1)(e) of P.C.Act and accordingly acquitted
U/sec.248(1) Cr.P.C.
His bail bonds, if any, shall stands cancelled.
Transcribed to my dictation by the Personal Assistant, corrected and
pronounced by me in the Open Court, this the 23rd day of July, 2012.
Sd/- G.V.Krishnaiah
Spl. Judge for ACB Cases, Visakhapatnam.
APPENDIX OF EVIDENCE
Witnesses examined
On behalf of Prosecution:On behalf of Defence: PW1: G.Annajirao.DW1: K.Venkataramana. PW2: V.Prakash.DW2: Iqbal Hussain. PW3: B.Satyanarayana. DW3: Y.Rajarao. PW4: A.Mohanarao.DW4: Y.Prameela. PW5: B.Janardhanareddy.DW5: Y.Vijayagopal Yadav. PW6: S.Venkatarao.DW6: G.V.Satyanarayana. PW7: Vijaya.DW7: Md.Suleman. PW8: M.Venugopalarao.DW8: M.Ramana. PW9: T.Saptagiri.DW9: N.Sithalaxmi. PW10: M.Suryanarayana. DW10: N.Rajani. PW11: N.Satyanarayana. DW11: K.V.S.Prakash. PW12: N.Praveen Ranganadh. DW12: K.Prasadarao. PW13: P.Venugopal. DW13: Y.Ramana. PW14: M.Apparao. DW14: B.Sreenivasarao. PW15: DVS Bhaskararaju. DW15: E.Vivekanandaswamy. PW16: K.V.R.K.Prasad. PW17: P.Jagannadham.
Documents marked Onbehalf of prosecution: Ex.P1: Inventory report dt.06-10-1997. Ex.P2: Made up file containing 1 to 7 pages of Bank pass books. Ex.P3: Made up file containing 1 to 63 sheets. EX.P4: Made up file containing 1 to 9 sheets LIC receipts. Ex.P5: Made up file containing 1 to 48 sheets bank payment vouchers etc. Ex.P6: Made up file containing 1 to 20 sheets share certificates etc. Ex.P7: Made up file containing 1 to 10 sheets gold receipts & Indira vikas patras. Ex.P8: Made up file containing 1 to 54 sheets court suit documents etc. Ex.P9: Made up file containing 1 to 156 sheets miscellaneous document, bills, children school bills etc. Ex.P10: search list dt.06-10-1997. Ex.P11: Made up file containing 1 to 25 sheets of property returns of AO. EX.P12: Made up file containing 1 to 17 sheets of bill for Yadu Tax consultancy. Ex.P13: Made up file containing 1 to 33 sheets of purchase of Maruti van etc. Ex.P14: Made up file containing1 to 16 sheets of purchase of law books etc. Ex.P15: Made up file containing 1 to 56 sheets IT Returns of AO. Ex.P16: Made up file containing 1 to 20 sheets payment of LIC premium etc. Ex.P17: Made up file containing 1 to 57 sheets IT Returns of AO. Ex.P18: Made up file containing 21 sheets of miscellaneous papers. Ex.P19: inventory report dt.06-10-1997.
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Ex.P20: Salary particulars of AO prepared by PW3. Ex.P21: Mediators report dt.10-10-1997. Ex.P22: Letter dt.30-01-2000 issued by PW5. Ex.P23: Letter dt.08-11-1997 issued by PW6. Ex.P24: Contains 5 sheets of RMB Maps. Ex.P25: Copy of 10(1) Adangal. Ex.P26: Attested copy of Adangals (six). Ex.P27: Evaluation report dt.10-04-2001. Ex.P28: Copy of sale agreement dt.01-01-1994 in between M/s Ramaraju Enterprises and Y.Rajarao. Ex.P29: Copy of regd. Sale deed dt.27-11-1993 in between M/s Ramaraju enterprises and Y.Rajarao. Ex.P30: Copy of certificate dt.10-04-1995. Ex.P31: Letter dt.10-03-2001. Ex.P32: 161 Cr.P.C. statement of PW11. Ex.P33: Occurrence report. Ex.P34: Proceedings of Addl. Director dt.01-10-1997. Ex.P35: Regd. FIR in Cr.No.8/RC.WLR/97 dt.04-10-1997. Ex.P36: Letter dt.28-10-1997 along with extract of loan account of AO. Ex.P37: Ledger extract of loan account in the name of Y.Prameela along with covering letter dt.08-01-2001 of Secretary, VZM Coop Urban Bank Ltd. Ex.P38: Letter dt.28-07-1998 issued by Manager, Shriram Chits Ltd, VSP. Ex.P39: Certified copy of document no.3657/1973 dt.03-10-1973. Ex.P40: Certified copy of document no.4278 dt.22-11-1985. Ex.P41: Certified copy of document no.4279/1985 dt.22-11-1985. Ex.P42: Certified copy of document no.4280/1985 dt.22-11-1985. Ex.P43: Extract of A/c statement pertains to A/c no.068 along with covering letter. Ex.P44: Certified copy of Regd. Sale deed no.1921 dt.07-06-1973. Ex.P45: Agreement of sale dt.12-02-1997 executed by N.Sailaja infavour of Prameela. Ex.P46: Letter dt.06-12-2000 issued by Authorized signatory of Apple Credit company along with statement of payment schedule by AO. Ex.P47: Letter dt.03-04-2001 issued by Asst. Secretary, RTA, VSP along with B register extract of Maruti Van. Ex.P48: Receipt no.5352 dt.04-10-1993 issued by Varun Motors VSP in the name of Vijaya Gopal Yadav. Ex.P49: Letter dt.25-09-2000 issued by Sr.Br.Manager of Orient Bank of Commerce along with copy of ledger extract of A/c 2894. Ex.P50: Letter dt.29-09-2000 issued by Chief Manager, AB, Dwarakanagar Branch, VSP along with copy of ledger extract of A/c No.12665. Ex.P51: Letter dt.29-03-2001 issued by Branch Manager, SBI, Dwarakanagar, along with copy of ledger extract of A/c no.12665. Ex.P52: Letter dt.22-05-2001 along with statement of loan account in the name of Y.Prameela and Y.Rajarao. Ex.P53: Letter dt.11-10-2000 issued by ACTO, Cheepurupalli along with pay particulars for 08/07/1991 to 31/10/1992. Ex.P54: Letter dt.09-11-2000 of ACTO, Tagarapuvalasa along with pay particulars for 01/10/1974 to 30/09/1975. Ex.P55: Letter dt.28-11-2000 of Dy. Commissioner, CT, VSP along with pay particulars for 31/12/1981 to 01/07/1982 and 29/09/1994 to 16/02/1996. Ex.P56: Letter dt.27-11-2000 of CTO, VZM along with pay particulars from 1/11/92 to 1/9/93, 3/9/93 to 22/9/94. Ex.P57: Letter dt.27-12-2000 of DCTO, Kothavalasa along with pay particulars from 5/74 to 9/74. Ex.P58: Letter dt.07-02-01 of CTO, VSP along with pay particular 2/96 to 25/3/98. Ex.P59: Copy of service register of AO furnished by Commissioner, CT, HYD along with letter dt.15-06-2001. Ex.P60: Certified copy of regd. Sale deed no.1574/11-06-1990 executed by P.V.Satyalaxmi infavour of Rajarao. Ex.P61: Letter dt.19-05-2001 of Dy. Comm. CT, VZM along with property statements. Ex.P62: Letter dt.31-05-2001 of Secy, VZM Coop Urban Bank, VZM along with xerox copies of statement of loan account. Ex.P63: Letter dt.08-11-2000 of Manager, VSP Coop Bank Ltd along with statement of account of loan. Ex.P64: Letter dt.14-05-2001 of Secy. VSP Coop Bank Ltd. Ex.P65: Letter dt.06-04-2001 of Secy. CTO Employees union. Ex.P66: Letter dt.29-03-2001 along with ledger extracts of chits. Ex.P67: Certified copy of Regd. Sale deed no.2875/74. Ex.P68: Computation of household expenditure of AO.
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Ex.P69: Letter dt.16-02-2001 and 23-04-2001 issued by RT College, VSP. Ex.P70: Letter dt.29-01-2001 issued by AP Residential Junior college. Ex.P71: Letter dt.23-03-2001/1999-02 and 1992 to 93 by Principal, Maharaja college, Vizianagaram. Ex.P72: Letter dt.23-04-10/95-96 & 96-97 by Prl. All Saints Christian Law coll, VSP. Ex.P73: Letter dt.30-05-2001 issued by Headmaster, St. Joseph’s English Medium High School. Ex.P74: Letter dt.29-09-2000 issued by Comm. VZM Municipality. Ex.P75: Letter dt.24-03-2001 issued by Asst. Comm-I, Civil(Ref) MCV. Ex.P76: Letter dt.06-03-2001 issued by Asst. Accounts Officer, ERO(East) VSP. Ex.P77: Letter dt.20-02-2001 issued by Commercial Officer-II, O/o GMTD, VSP. Ex.P78: Attested copy of Letter dt.10-05-2001. Ex.P79: letter dt.27-03-2001 issued by the Branch Manager, LIC of India. Ex.P80: 5 Receipts of Ratnam Mill Stores. Ex.P81: Letter along with certificate of abstract of PGF & IT Ltd., dt.29-03-2001. Ex.P82: Letter dt.31-03-2001 of Janachaitanya Housing Ltd, VSP.
Documents marked on behalf of defence. Ex.D1: Certificate dt.27-10-1997 issued by PW13. Ex.D2: Explanation of AO submitted to ACB. Ex.D3 to D17: Appendix 1 to 15. Ex.D18: Certificate issued by Satya Associates, Chartered Accountants, VSP infavour of DW15 for consultation charges dt.15-10-1997. Ex.D19: Certificate issued by Nyayapathy Associates, Chartered Accountants, VSP infavour of DW15 for consultation charges dt.15-10-1997. Ex.D20: Proceedings of the Income Tax Officer dt.06-07-2000 for the assessment year 1997-98. Ex.D21: Receipt issued by the Cooperative Urban Bank Ltd, Vizianagaram in the name of N.Sithalaxmi (DW9). Ex.D22: Loan receipt issued by the bank. Ex.D23: Xerox copy of ID. Ex.D24: Estimations. Ex.D25: Reconciliation statement of salary particulars. Ex.D26: CC of voters list for the years 1998 issued by Tahsildhar, Vizianagaram. Ex.D27: Letter along with postal cover issued by East India Match Factory to AO. Material objects marked: N I L
Sd/- G.V.Krishnaiah
Special Judge for ACB Cases
Visakhapatnam. Copies to:
1. The Registrar(Judl) High Court of AP.,
2. Spl. Public Prosecutor for ACB Cases, Visakhapatnam.
3. The Principal Secretary to Govt., Commercial Tax Dept. Hyderabad.
CALENDER AND JUDGMENT
CALENDAR ON CASE TRIED BY THE SPECIAL JUDGE FOR A.C.B.CASES
VISAKHAPATNAM
C.C.NO:17/2002
D A T E OF ; OFFENCE … In between 11-12-1965 & 06-10-1997.
REPORT OR COMPLAINT --
APPREHENSION OF ACCUSED 29-05-2002
RELEASE ON BAIL --
COMMENCEMENT OF TRIAL 12-12-2007 CLOSE OF TRIAL 14-03-2012 SENTENCE OR ORDER 23-07-2012
EXPLANATION FOR DELAY AND REMARKS:- Accused appeared and copies of documents were supplied. Charges under Sec.13(2) r/w 13(1)(e) of P.C.Act 1988 framed against the accused on 18-07-2006. Sri K.Srinivasarao, Special Public Prosecutor appeared for the Complainant and of Sri GVPBS.Murthy, Advocate appeared for the accused. PWs 1 to 17 were examined and Exhibits P1 to Ex.P82 were marked on behalf of the prosecution. DWs 1 to 14 were examined and Ex.D1 to D27 were marked onbehalf of accused. Arguments heard on 01-06-2012 and Judgment pronounced on 23-07-2012 and the accused was found not guilty for the charges punishable U/Sec.13(2) r/w 13(1)(e) of P.C.Act 1988 and accordingly acquitted under sec.248(1) of Cr.P.C.
Sd/- G.V.Krishnaiah
Spl. Judge for ACB Cases, Visakhapatnam.
JUDGMENT IN CALANDER CASE NO.17/2002
ON THE FILE OF SPECIAL JUDGE FOR A.C.B. CASES, VISAKHAPATNAM
C.C.No. 17/2002
Between: State rep. by the Deputy Superintendent of Police, Anti Corruption Bureau, Visakhapatnam. …Complainant
And: Yerra Rajarao, son of late Gopalam, Formerly Deputy Commercial Tax Officer, Dondaparthy, Visakhapatnam. …Accused officer.
O FFENCES: U/s 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988
FINDING OF THE COURT:- FOUND NOT GUILTY.
SENTENCE
In the result, the accused is found not guilty of the offence punishable under sec.13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 and accordingly acquitted under sec. 248(1) of Cr.P.C. His bail bonds if any shall stand cancelled.
Sd/- G.V.Krishnaiah
SPECIAL JUDGE FOR ACB CASES
VISAKHAPATNAM