Sri K.siva Rama Krishna
PRINCIPAL CBI JUDGE
CBI Court, Visakhapatnam · Visakapatnam · Andhra Pradesh
SRI K.SIVA RAMA KRISHNA, PRINCIPAL CBI JUDGE, is posted at CBI Court, Visakhapatnam, Visakapatnam, Andhra Pradesh, India. 2 court orders on record since 2017. 2 judgments with full text available. Primarily handles CC cases.
Featured Judgments
CALENDAR AND JUDGEMENT
DISTRICT OF VISAKHAPATNAM
Calendar of Cases tried by the I Addl. Special Judge for C.B.I Cases, Visakhapatnam ------------------------------------------------------------------------------- ------ Date of offence: 01.09.1993 to 31.07.2004 Date of report or complaint: --- Date of apprehension of accused: --- Date of release on bail: --- Date of commencement of trail:17.12.2012 Date of close of trial:05.10.2017 Date of sentence or order:17.11.2017
Explanation of delay and remarks:
This case was taken on file on 06.01.2009 against the accused. Accused No.1 and 2 were appeared before this Court on 02.04.2009. On 17.09.2009 charges were framed against the accused and the examination of witnesses was commenced on 17.12.2012.
On behalf of the prosecution, P.W.1 to 70 were examined and Ex.P.1 to Ex.P.94 were marked. On behalf of the accused D.W.1 to 7 were examined and Ex.D.1 to D.9 and Ex.X.1 to 6 and Ex.X.1(A) were marked. The trial was completed on 05.10.2017. Judgement is
pronounced on 17.11.2017.
Judgement in Calendar Case No.01/09 on the file of I Addl.
Special Judge for C.B.I., Cases, Visakhapatnam
Complainant: State represented by the Inspector of Police, Central Bureau of Investigation, Special Police Establishment, Visakhapatnam (R.C.No. 1(A)/2005 – C.B.I., VSP)
Accused No.1Accused No.2
Name of theBodapati Sujana Vasantha Patnala Hema Sundara Ravi accusedKumarKumar
Age53 years35 years
Father’s Late Kanaka RatnamLate P.Ramachandra Rao Name
ReligionHinduHindu
CallingRegional Manager, Oriental M/s. R.C.R. Associates, Regd. Insurance Co. Ltd. Architect, Pantakalava Road, NTR Cirle, Patamata , Vijayawada.
ResidenceD.No.54-14-5-6-1, 4th Lane, D.No.67-3-14, C/o. Jayamma, 5th Cross Road, Srinivasa Patamata. Nagar, Bank Colony, Gunadala.
Mandal / Vijayawada.Vijayawada. District
Offence: Under section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 and 120-B, 465 and 471 IPC against the accused No.1 and Under section 120-B, 465 and 471 IPC against the accused No.2.
Finding: Accused No.1 was found not guilty for the charge for the offence Under section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and 120-B, 465 and 471 IPC and Accused No.2 was found not guilty for the charge for the offence Under section 120-B, 465 and 471 IPC.
Sentence: Accused No.1 and 2 are acquitted under Sec. 248(1) Cr.P.C.
The accused shall be set at liberty and the bail bonds shall stand cancelled if any in accordance with Section 437-A Cr.P.C.
I Addl. Spl. Judge for CBI Cases, Visakhapatnam.
Copy submitted to: The Registrar (Judicial), Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Hyderabad.
Copy to: The Superintendent of Police, Central Bureau of Investigation, Visakhapatnam.
In the Court of the I Additional Special Judge for CBI Cases,
Visakhapatnam
Present: K.Siva Rama Krishna,
I Addl. Spl. Judge for CBI Cases, Visakhapatnam.
Friday, this the seventeenth (17th) day of November, 2017
C.C.01/2009
Between:
State, represented by the Inspector of Police, Central Bureau of Investigation, Visakhapatnam.
... Complainant
A n d:
1. Bodapati Sujnana Vasantha Kumar, S/o.Late Kanakaratnam, Hindu, Aged 63 years, The then Regional Manager, Oriental Insurance Company Limited, Regional Office, Chennai. R/o. Srinivasa Nagar, bank Colony, D.No.54-14-5-6-1, 4th Lane, 5th Cross Road, Gunadala, Vijayawada.
2. Patnala Hema Sundara Ravi Kumar, S/o.Late P.Ramachandra Rao, Hindu, Aged about 45 years, Registered Architect M/s.R.C.R.Associates, Vijayawada. R/o.Patamata, Door No.67-3-14, Vijayawada.
... Accused Nos. 1 and 2
This case was coming on 08.11.2017 and 14.11.2017 for final hearing before me in the presence of Sri K.Suryanarayana, Senior
Public Prosecutor for the complainant and of Sri N.V.V. Prasad,
Advocate for the 1st accused and of Sri A.Bhaskara Rao, Advocate for the 2nd accused and having stood over for consideration till this day, this court made the following:
J U D G M E N T
The Inspector of Police, Central Bureau of Investigation,
Special Police Establishment, Visakhapatnam laid the charge sheet against the accused Nos. 1 and 2 in R.C.No.01(A)/2005 of Central
Bureau of Investigation, Visakhapatnam for the offences U/Sec.13 (1)
(e) r/w. 13 (2) of Prevention of Corruption Act and U/Sec. 120-B, 465 and 471 IPC.
2. This case was taken on file as C.C.01/2009 and made over to this court for disposal in accordance with law as per the orders of the Principal Special Judge for CBI Cases, Visakhapatnam. The accused Nos. 1 and 2 were appeared before the court and they were furnished with copies of documents as contemplated U/Sec.207 Cr.P.C.
The accused Nos. 1 and 2 were examined U/Sec. 239 Cr.P.C and they denied the prosecution case. On perusal of the entire material on record and on hearing both sides, a charge U/Sec. 13 (2) r/w. 13 (1)
(e) of Prevention of Corruption Act against the 1st accused, a charge
U/Sec. 120-B IPC against the 1st and 2nd accused and charges U/Sec.
465 and 471 IPC against the 1st and 2nd accused were framed, read over and explained to them and they pleaded not guilty and claimed to be tried.
3. During the course of trial, P.Ws.1 to 70 were examined and
Exs.P.1 to P.94 were marked on behalf of the prosecution. On the closure of the prosecution evidence, the accused Nos. 1 and 2 were examined U/Sec. 313 Cr.P.C on the incriminating circumstances appearing against them in the evidence of prosecution witnesses and they denied the same. D.Ws.1 to 7 were examined and Exs.D.1 to D.9 were marked on behalf of the accused. The documents filed by the witnesses were marked as Exs.X.1 to X.6.
The complainant got filed memorandum of arguments on his behalf through the Senior Public Prosecutor. The accused Nos. 1 and 2 also got filed memorandum of arguments at the time of hearing on their behalf through their counsel. .
4. The gist of the prosecution case, in brief, is as follows:
The 1st accused is the son of Bodapati Kanakaratnam. His father and mother are teachers. His father retired from the service and died in the year 1988. His mother retired from the service in the year 1989 and died in the year 2013. The 1st accused did not receive any properties either immovable or movable from his parents. Jyothi
Vimala is his wife. Their marriage was performed in the year 1980.
She is a house wife. Ranjith Kumar is their son and Sara Soumya is their daughter. The 1st accused is a post graduate and he has completed M.Sc in the year 1978. He worked as a lecturer in the year 1979 and later, he worked as Assistant Administrative Officer in GIC,
Mumbai during the period from August, 1979 to March, 1980. He joined in Oriental Insurance Company Limited on 3.4.1980 and he worked in Visakhapatnam, Kakinada, Ongole and Gudiwada of Andhra
Pradesh, Cochin and Khatmand in the organization of Oriental
Insurance Company in various capacities. He was working as
Regional Manager in the Office of Dy. General Manager, Oriental
Insurance Company Limited, Chennai. The then Inspector of Police,
CBI, Visakhapatnam (P.W.61) received basic information that the 1st accused acquired movable and immovable properties disproportionate to his known source of income and that a case in R.C.No.01 (A)/2005 was registered against him for the offence under section 13 (2) r/w.
13 (1) (e) of the P.C.Act and investigated into. The investigation officers the then Dy. Superintendent, CBI, Visakhapatnam (P.W.62) and the then Inspector of Police, CBI, Visakhapatnam (P.W.70) during the course of investigation noticed that the 1st accused was in possession of disproportionate assets to his known source of income and he did not satisfactorily account for, and did not render any plausible explanation. The check period for calculating the assets, income and expenditure of the 1st accused and his family members was fixed from 01.09.1993 to 31.07.2004 and the properties of the 1st accused are calculated for the period from 01.09.1993 to 31.07.2004.
The investigation officers during the investigation, conducted search at the residential house of the 1st accused and other places and they have examined various individuals and officials to find out the truth and untruth in the basic information received against the 1st accused. The investigation officers found that the 1st accused had assets worth
Rs.1,37,247/- at the beginning of the check period and he was found in possession of assets worth Rs.30,15,457/- at the end of the check period and thus he acquired assets of Rs.28,78,210/- during the check period and he had a total income of Rs.31,75,927/- from all known sources and expenditure incurred was Rs.18,88,743/- and he had likely savings of Rs.12,87,184/- and he was found in possession of disproportionate assets of Rs.15,91,026/- as on 31.07.2004 and his properties at the beginning of the check period are shown in
Statement-A and the properties at the end of check period are shown in Statement-B and the income during the check period is shown in
Statement-C and the expenditure is shown in Statement-D in the final report and the disproportionate assets were carried out in the
Statements of A, B, C & D in the final report for the check period from 01.09.1993 to 31.07.2004 and there is no convincing explanation from the 1st accused about acquisition of the assets worth Rs.15,91,026/- which are disproportionate to known source of income of him and his family members and the disproportionate assets to his known source of income is 50.09 % of his total income. The 2nd accused is the
Registered Architect of M/s. R.C.R. Associates, Vijayawada. The 1st accused with fraudulent intention conspired with the 2nd accused to mislead Central Project Works Department and investigation officers during the course of investigation and in pursuance of the said criminal conspiracy, the 2nd accused afforded three contrary valuation reports with assorted values fluctuating from Rs.12.24 lakhs to Rs.16.65 lakhs for the cost of construction of the building on different dates during the course of enquiry to help the 1st accused and dissimulated the factual cost of the building of the 1st accused. The then General
Manager, Oriental Insurance Company Limited, New Delhi (P.W.69) who is the competent authority to remove the 1st accused accorded sanction order Ex.P.87 to prosecute the 1st accused. P.W.70 after completion of the investigation, laid the charge sheet against the accused Nos. 1 and 2 to prosecute for the same and that the 1st and 2nd accused are liable to be punished for the offences under sections 13 (2) r/w. 13 (1) (e) of Prevention of Corruption Act and under section 120-B, 465 and 471 IPC respectively.
5. Now the points for determination are:
1. Whether the then General Manager, Oriental Insurance
Company Limited, New Delhi (P.W.69) is the competent
authority to accord sanction to prosecute the 1st accused
and the sanction order Ex.P.87 Dt.17.05.2007 accorded by
him (P.W.69) to prosecute the 1st accused is impregnable
and legally valid ?
2. Whether the 1st accused possessed only the assets
shown in the statement 'A' worth Rs.1,37,274/- at the
beginning of the check period i.e., as on 01.09.1993 ?
3. Whether the 1st accused possessed the assets shown in
the statement 'B' worth Rs.30,15,457/- at the end of the
check period i.e., as on 31.07.2004 ?
4. Whether the 1st accused acquired assets worth
Rs.28,78,210/- during the check period from 01.09.1993
to 31.07.2004 ?
5. Whether the total income of the 1st accused during the
check period from 01.09.1993 to 31.07.2004 from all
known source is Rs.31,75,927/- as shown in the
statement 'C' ?
6. Whether the total expenditure incurred to the 1st accused
during the check period from 01.09.1993 to 31.07.2004 is
Rs.18,88,743/- as shown in the statement 'D' ?
7. Whether the 1st accused was in possession of
disproportionate assets worth Rs.15,91,026/- to
known source of income of him and his family members
as on 31.07.2004 ?
8. Whether the 1st accused fraudulently conspired with the
2nd accused to defraud the investigation agency and in
pursuance of the said criminal conspiracy, the 2nd
accused afforded three contrary valuation reports with
assorted values for the cost of construction of the
building of the 1st accused during the course of
investigation and dissimulated the factual cost of the
building ?
9. Whether the prosecution proved the guilt of the 1 st
accused beyond all reasonable doubt for the offence
U/Sec.13 (2) r/w. Sec.13 (1) (e) of Prevention of
Corruption Act ?
10. Whether the prosecution proved the guilt of the 1st and
2nd accused beyond all reasonable doubt for the offences
U/Sec. 120-B and 465 and 471 IPC ?
6. POINT No.1:
Whether the then General Manager, Oriental Insurance
Company Limited, New Delhi (P.W.69) is the competent
authority to accord sanction to prosecute the 1st accused and
the sanction order Ex.P.87 Dt.17.05.2007 accorded by him
(P.W.69) to prosecute the 1st accused is impregnable and
legally valid ?
The then General Manager, Oriental Insurance Company
Limited, Delhi was examined as P.W.69. Sanction order Dt.17.05.2007 was marked as Ex.P.87.
As per the evidence of P.W.69 and the contents of Ex.P.87, the General Manager is the competent authority to accord sanction to prosecute the Regional Manager, Chennai 1st accused. He, being the
General Manager, Oriental Insurance Company Limited, received FIR, report of the Superintendent of Police, statements of witnesses and other relevant documents from CBI, Visakhapatnam with a request to issue sanction order to prosecute 1st accused. He perused all the material documents and satisfied that the material placed by the
Investigation Agency prima facie discloses commission of an offence of disproportionate assets and that he accorded sanction orders Ex.P.87
Dt.17.05.2007 to prosecute the 1st accused.
7.It is contended by the prosecution that the evidence of
P.W.69 and the contents of sanction order Ex.P.87 reveal that P.W.69 being the General Manager is competent authority to remove the 1st accused and he perused all the relevant documents and applied his mind and accorded sanction to prosecute the 1st accused. The sanction authority is not compel to carry out a roving enquiry as done by the trial court. The sanction authority is also not duty bound to call for the explanations from the accused persons while according sanction order. The sanction order is not invalid merely on the ground that a model sanction order was sent to the sanctioning authority by the investigation officer. The circulars appended to the sanction order
Ex.P.87 reveal that P.W.69 is the competent authority to accord sanction to prosecute the 1st accused. The prosecution proved and established that the sanction order Ex.P.87 accorded by P.W.69 is a valid document and relied upon the decisions reported in i) 2012 (3)
SCC 64; ii) 2013 (8) SCC 119; iii) 2014 (3) SCC(Cri) 389; iv) AIR 1992 SC 563 and; v) AIR 1991 SC at page no.1260; vi) 2010(8)
SCC at page no.655; vii) 2005 (4) SCC at page no.81; viii) 1993
Crl.L.J. at page no.558 (AP); ix) 1986 Crl.L.J. at page no.457 Gujarat
High Court;
i)In the decision Dr.Subramanian Swamy ... Appellant Vs.,
Dr.Manmohan singh and another ... Respondents reported in
2012 (3) SCC 64, our Hon'ble Supreme Court held that "while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence".
ii)In the decision State of Maharashtra through CBI ... Appellant
Vs., Mahesh G.Jain ... Respondent reported in 2013 (8) SCC
119, our Hon'ble Supreme Court held that "when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with". The flimsy technicalities cannot be allowed to become tools in the hands of an accused.
iii)In the decision State of Bihar & others ... Appellants Vs.,
Rajmangal Ram ... Respondent reported in 2014 (3) SCC(Cri)
389, our Hon'ble supreme Court considered that "merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice".
iv)In the decisionState of Tamilnadu ... Appellant Vs.,
Damodaran ... Respondent reported in AIR 1992 SC 563, our
Hon'ble Supreme Court held that " the High Court was not justified in
reaching the conclusion that the sanctioning authority granted sanction mechanically and without application of mind on the reasoning that the letter shows that the Director of Vigilance and anti corruption has enclosed model sanction orders so as to enable the Revenue Divisional officer to draft sanction order in those lines".
v) In the decision State of Bihar ... Appellant Vs., P.P.Sarma ...
Respondent reported in AIR 1991 SC at page no.1260, our
Hon'ble Supreme Court held that "the sanctioning authority having
taken the case diary into consideration before the grant of sanction, it cannot be said that there was non application of mind on the part of the sanctioning authority and the case diary contains total material in support or otherwise of the allegations".
vi)In the decision State of Madhya Pradesh ... Appellant Vs.,
Harishankar Bhagwan P.D. Tripathi ... Respondent reported in
2010 (8) SCC at page no.655, our Hon'ble Supreme Court held that "while granting sanction, the officer concerned is not required to indicate that he had personally scrutinized the file and had arrived at the satisfaction for granting sanction".
vii)In the decision C.S.Krishnamurthy ... Appellant Vs., State of
Tamilnadu ... Respondent reported in 2005 (4) SCC at page
no.81, our Hon'ble Supreme Court held that "in case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order".
viii) In the decision M.Sreenivasulu Reddy ... Appellant Vs., State
represented by Inspector of Police, ACB, Nellore ... Respondent
reported in 1993 Crl.L.J. at page no.558 (AP), our Hon'ble High Court held that "when the sanctioning authority has carefully examined the entire material including the case diary and the statements of the witnesses, it cannot be said that there was non application of mind on the part of the sanctioning authority".
ix)In the decision Naresh Kumar Kikabhai Tandal ... Appellant Vs.,
State of Gujarat ... Respondent reported in 1996 Crl.L.Journal
at page no.457 (Gujarat High Court), the Hon'ble High Court held that "there is no law which requires the Sanctioning Authority to draft the sanction himself and if he is satisfied that the sanction is required to be given that sanction order could be drafted by anyone in the office even by a a Law Officer kept for that purpose".
8. It is contended by the Advocate for the 1st accused that the sanction order Ex.P.87 Dt.17.05.2007 issued to prosecute the 1st accused U/Sec. 19 of P.C.Act is invalid and the same was issued mechanically without application of mind. The evidence of P.W.69 and the evidence of investigation officer P.W.70 unveil that the said sanction order is invalid and unsound and the same was issued without application of mind by the alleged competent authority. The relevant documents are not provided to the sanctioning authority and that the sanctioning authority had not been taken into consideration of the said relevant documents filed before the court, while granting the alleged sanction order. The CBI forwarded the draft sanction order to the sanctioning authority and the sanction order Ex.P.87 was the exact and verbatim of the said draft sanction order. P.W.69 is not the competent authority to accord sanction to prosecute the 1st accused. The prosecution has to establish and satisfy that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction has been granted in accordance with law. The prosecution did not adduce substantial evidence and failed to prove the same and that the alleged sanction order is invalid. No documents are filed to prove that the
General Manager P.W.69 is competent to remove the 1st accused from the service and that he is competent to accord sanction to prosecute the 1st accused. P.W.69 has stated in the cross examination that the power of removal of employees of all categories is vested on the Board of Directors as per the Memorandum of Articles of Association.
Further, he has stated in the cross examination that he was given power of attorney to remove officers upto Scale-V and he did not explicit the same in the sanction order Ex.P.87. No such power of attorney is produced before the court to prove that he was given power of attorney. CDA Rules have no legal force since they are not published in the official gazettee and those rules are invalid and unenforceable. When the Board of Directors are competent to remove the employees of all categories, a power of attorney executed by
Chairman-cum-Managing Director is invalid. The sanction order
Ex.P.87 was prepared by CBI and the same can be inferred from the final report filed in this case and all the paragraphs in the sanction order Ex.P.87 are replica in verbatim of the contents of the final report and that P.W.69 did not prepare the sanction order Ex.P.87 on his own applying mind. Whenever the sanction had not been accorded properly for which the criminal case could have been initiated against the accused, there was no occasion to the court to consider the prosecution case and relied upon the decisions reported in i) 2014 (14)
SCC at page no.295; ii) AIR 2015 SC 3060; iii) 2008 (1) SCC (Crl.) at page no.130; iv) 2005 (8) SCC at page 370; v) Crl. Appeals Nos.
872/2014 and 873/2014 on the file of the Hon'ble Supreme Court of
India Dt.3.11.2015; vi) 2014 (11) SCC at page No.431; vii) 1998 (9)
SCC 268; viii) 1997 (7) SCC at page No.622 and; ix) 2006 (10) SCC at page No.447.
i)In the decision Central bureau of Investigation and another ...
Appellant Vs., Ashok Kumar Agarwal and another ...
Respondents reported in 2014 (14) SCC at page no.295, our
Hon'ble supreme Court held that "the stage of examining the validity of
sanction is during the trial and did not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage. In case of grant of sanction, statutory authority has to apply its mind and take decision regarding grant of sanction".
ii)In the decision Nanjappa ... Appellant Vs., State of Karnataka ...
Respondent reported in AIR 2015 SC at page no.3060, our
Hon'ble Supreme Court held that, "the question regarding validity of
sanction order can be raised at any stage of the proceedings. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution".
iii)In the decision State of Karnataka ... Appellant Vs., Ameer Jan ...
Respondent reported in 2008 (1) SCC (Crl.) at page no.130, our
Hon'ble supreme Court held that "the order of sanction should not be
construed in a pedantic manner. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority".
iv) In the decision State of Karnataka represented by the CBI ...
Appellant Vs., C.Nagarajuswamy ... Respondent reported in
2005 (8) SCC at page 370, our Hon'ble supreme Court held that "when a question is raised as to whether the authority granting the sanction was competent or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service. If a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage, a finding to that effect is permissible".
v)In the decision State of Karnataka represented by CBI, ACB,
Bangalore ... Appellant Vs., K.T.Uthappa and another ...
Respondents made in Crl. Appeals Nos. 872/2014 and
873/2014 on the file of the Hon'ble Supreme Court of India
Dt.3.11.2015, our Hon'ble Supreme Court held that "no sanction was granted by the Board of Directors which ought to have beendone under the provisions of law and the General Insurance (Conduct Discipline and Appeal) Rules, 1975 are not even gazetted at any point of time and made applicable to the employees of the said Insurance Company and that the sanction granted by P.W.1 the then A.G.M was invalid and that there is no any reason to interfere with the impugned order so passed by the High Court in these matters".
vi)In the decision P.L.Khatwal ... Appellant Vs., State of Madhya
Pradesh ... Respondent reported in 2014 (11) SCC at page
No.431, our Hon'ble Supreme Court held that "the authority competent to remove an officer from service is the authority to give sanction for prosecution. The grant of sanction is only an administrative function and it is intended to protect public servants against frivolous and vexatious litigation".
vii)In the decision State of Tamilnadu ... Appellant Vs., M.M.Rajendra
... respondent reported in 1998 (9) SCC 268, our Hon'ble
Supreme Court held that "if the sanction had not been accorded for which the criminal case would have been initiated against the respondent, there was no occasion either for the trial court or for the appellate court to consider the prosecute case on merits".
viii) In the decision Mansukhala Vithal Das Chauhan ... Appellant Vs.,
State of Gujarat ... Respondent reported in 1997 (7) SCC at
page No.622, our Hon'ble supreme Court held that " the validity of the sanction would depend upon the material placed before the sanctioning authority. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case and also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not".
ix)In the decision K.Devassla ... Appellant Vs., State of Kerala ...
Respondent reported in 2006 (10) SCC at page No.447, our
Hon'ble Supreme Court held that "Secretary (Vigilance) was authorized
to accord sanction on 23.4.1994 and he accorded sanction prior to 23.04.1994 and that the impound orders are fit to be set-a-side on that ground alone".
9.The evidence of P.W.69 and the contents of the sanction order Ex.P.87 positively reveal that the General Manager is the competent authority to accord sanction to prosecute the Regional
Manager, Chennai 1st accused. The General Manager was the appointing and removal authority of Scale-IV and Scale-V Officers in the year 2007. He worked as General Manager Personal Department.
He, being the General Manager, Oriental Insurance Company Limited, received FIR, report of the Superintendent of Police, statements of witnesses and other relevant documents from CBI, Visakhapatnam with a request to issue sanction order to prosecute 1st accused. He perused all the material documents and satisfied that the material placed by the Investigation Agency prima facie discloses commission of an offence of disproportionate assets and that he accorded sanction orders Ex.P.87 Dt.17.05.2007 to prosecute the 1st accused.
Further, as per the evidence of P.W.69, he advised conduct and disciplinary cell to prepare the sanction order Ex.P.87 and all the documents received from the CBI, Visakhapatnam are available in the conduct and disciplinary cell. He did not see draft sanction order alleged to be sent by the CBI. The power of removal of employees of all categories is vested on the Board of Directors as per the
Memorandum of Articles of Association and he was given authority under power of attorney by the Chairman-cum-Managing Director.
The copy of the circulars relating to General Insurance (Rationalization of Pay Scales and other conditions of service of officers) second amendment scheme, 2005 vide Gazettee Notification
SO.No.1792 (E) Dt.21.12.2005, which are appended to the sanction order Ex.P.87 positively reveal that the General Manager is the appointing and removal authority of Scale-IV and Scale-V Officers.
10. Further, the evidence of P.W.70 positively reveal that the
Superintendent of Police, CBI, Visakhapatnam addressed a letter to
Oriental Insurance Company, New Delhi, requesting to accord sanction to prosecute the 1st accused and sent the statements of the witnesses, copy of the FIR, shares certificates of 1st accused and his family members, documents relating to the properties held by the 1st accused and his family members and other documents alongwith the letter addressed to the Oriental Insurance Company, New Delhi for consideration to accord sanction.
In consequence of this, P.W.69 being the General Manager was the competent authority to remove Scale-IV and Scale-V Officers and he perused the documents of the statements of the witnesses, copy of the FIR, share certificates of 1st accused and his family members, documents relating to the properties possessed by the 1st accused and his family members and other relevant documents placed
before him and applied his mind and accorded sanction to prosecute
the 1st accused. Whenever all relevant materials are placed before the sanctioning authority and such authority fully applied its mind to such materials and then accords sanction, the same is valid and it is not reasonable to consider the contentions of the accused that necessary materials are not placed before the sanctioning authority and the sanctioning authority has not applied its mind and P.W.69 is not the competent authority to accord sanction order and that the sanction order Ex.P.87 Dt.17.05.2007 is not valid. Further, as per the circulars appended to the sanction order Ex.P.87, General Insurance (Rationalization of Pay Scales and other conditions of service of officers) second amendment scheme, 2005 are contemplated and gazetted in the Gazettee Notification SO.No.1792 (E) Dt.21.12.2005 and made applicable to the employees of the Oriental Insurance
Company and as per the said circulars P.W.69 being the General
Manager was the appointing and removal authority of Scale-IV and
Scale-V Officers. The Memorandum of Association of the Oriental
Insurance Company Limited filed by the 1st accused at the time of 313
Cr.P.C examination is not reveal that only the Board of Directors are having powers to appoint or remove the officers from the service. As per the Article 135 (3) of Memorandum of Association of Oriental
Insurance Company Limited, the Directors may delegate to any person so appointed any of the powers, authorities and discretions for the time being vested in the Directors. In order that, the facts in the reported cases on which the 1st accused relied upon are not similar to the facts of this case.
11. Further, order of sanction is an administrative function and not a quasi judicial one and opportunity of hearing to the accused
before according sanction need not be given. The authority is only
required to apply his mind to the facts and evidence collected. He need not weigh the evidence or even admissibility thereof. The order granting sanction must be demonstrative of the fact that there had been proper application of mind by the sanctioning authority.
Application of mind does not mean going through the evidence in details and sanctioning authority has to satisfy himself whether the complainant discloses a prima facie case. Details of evidence would be assessed during trial. The same was enunciated by our Hon'ble
Supreme Court in the decision State represented by ACB ... Appellant
Vs., R.C.Anand ... Respondent reported in 2004 (4) SCC at page
No.615. Whenever all the relevant material was placed before the sanctioning authority and he granted sanction after fully applying his mind and when there is no infirmity in the order granting the sanction, the sanction order is not invalid on the ground that model sanction order was enclosed to the report submitted to the sanctioning authority to accord sanction. When the sanction itself is very expressive, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable.
The same was enunciated by our Hon'ble Supreme Court in the
decisions C.S.Krishnamurthy ... Appellant Vs., State of Karnataka ...
Respondent reported in 2005 IV AD (SC) at page No.141 and ii) State
of Tamilnadu ... Appellant Vs., Damodaran ... Respondent reported in
AIR 1992 (SC) at page No.563. Whenever the sanctioning authority accorded sanction for prosecution after considering the detailed report of investigation and after applying its mind, the sanction is valid and a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby.
In view of all these reasons I feel that P.W.69 being the
General Manager was the competent authority to remove Scale-IV and
Scale-V Officers and he received and perused the documents of the statements of the witnesses, copy of the FIR, share certificates of 1st accused and his family members, documents relating to the properties possessed by the 1st accused and his family members and other relevant documents placed before him and applied his mind and accorded sanction to prosecute the 1st accused and that the sanction order Ex.P.87 Dt.17.05.2007 is effectual and valid.
This point is answered accordingly.
12.Point No.2:
Whether the 1st accused possessed only the assets shown in
the statement 'A' worth Rs.1,37,274/- at the beginning of the
check period i.e., as on 01.09.1993 ?
The then Inspector of Police, CBI, Visakhapatnam P.W.70 after completion of the investigation laid charge sheet showing the assets possessed by the 1st accused at the beginning of the check period i.e., as on 01.09.1993 in the statement 'A'. As per the statement 'A', the 1st accused was in possession of assets worth
Rs.1,37,224/- at the beginning of the check period. The particulars of the said assets shown in the statement 'A' are:
Sl. Details of assets Amount in
No. Rs.
1.Agricultural Land measuring 0.81 Hectares (2 Acres) at 44,816 Jagayyapeta, in the name of Smt. Vimala, purchased vide sale deed No.1807 dt.9.7.92 (Property cost Rs.40,000/- + Stamp papers cost Rs.4,400/- + Registration fee – Rs.416/-)
2.Plot of 429 Sq. Yards (358.98 Sq. yards) on Survey No.29/3 14,481 of Agatavarapadu, Pedakakanimandal, Guntur District in the name of Smt. B.Jyothi Vimala. Purchased vide sale deed no.4770 dt. 16.06.93. (property cost Rs.12,900 + 1426/- of Stamp papers cost + 155/- of stamp duty)
Movable Properties:
3.House hold articles:- 21,550 Cost of articles found in the house acquired before 31.08.1993 as per the inventory dated 31.07.2004 drawn during the searches in connection with RC 17(A)/2004.
4.Investment made in shares of M/s.JP Associates, New Delhi. 15,900 50 shares purchased @ Rs.60/- during April, 1993 and 100 shares purchased from secondary market @ Rs.129/- during July, 1992. The shares are held in the name of Smt.B.Jyothi Vimala, wife of the accused.
5.Investment in NSS37,500
6.Investment in Shares of Nagarjuna Fertilizers3,000
Total : 1,37,247
13. The 1st accused asserted and not disputed regarding the possession of the properties of Item No.1 agricultural land worth
Rs.44,816/-, Item No.2 plot worth Rs.14,481/-, Item No.4 investment in shares of M/s.J.P.Associates, New Delhi worth Rs.15,900/- and Item
No.6 Investment in Shares of Nagarjuna Fertilizers worth Rs.3,000/- shown in Statement 'A' as on the date of 01.09.1993 i.e., at the time of beginning of the check period.
Further, he has disputed regarding the possession of the properties of Item No.3 house hold articles and Item No.5 Investment in National Saving Scheme at Head Post Office, Ongole shown in the
Statement 'A'.
14.Item No.3 of Statement 'A':
It is contended by the prosecution that the Dy.
Superintendent of Police, CBI, Visakhapatnam V.K.C. Reddy conducted search in the house of the 1st accused situated at Srinivasa Nagar,
Bank Colony, Gunadala, Vijayawada in the presence of Manager, Zonal office, Indian Bank, Vijayawada P.W.49 and other witnesses as per the search warrant obtained from the Principal Special Judge for C.B.I.
Cases, Visakhapatnam in the crime in R.C.No.17 (A)/2004 of CBI,
Visakhapatnam and prepared list for the articles noticed in the inventory and the wife and son of the 1st accused were present in the schedule premises and the year of acquisition and value of the articles were mentioned in the inventory list Ex.P.59 as per the information given by the family members of the 1st accused and P.W.49 and other witnesses attested the inventory list Ex.P.59 and as per the inventory list Ex.P.59, the cost of the articles acquired by the 1st accused prior to the date of check period i.e., 31.08.1993 is Rs.21,550/- and the same was shown in the Statement 'A' for the assets possessed by the 1st accused at the beginning of the check period and the 1st accused did not adduce either oral or documentary evidence to prove that the cost of the articles acquired by him prior to the date of check period is
Rs.49,250/- and the evidence of P.W.49 and the inventory list Ex.P.59 reveal that the cost of the articles acquired by the 1st accused prior to the date of check period is only Rs.21,550/- and that the same is liable to be considered.
It is contended by the Advocate for the 1st accused that this crime R.C. 1(A)/2005 of CBI, Visakhapatnam against the 1st accused was registered on 13.01.2005 and the Dy. Superintendent of
Police, CBI, Visakhapatnam V.K.C. Reddy conducted search on 31.07.2004 in connection with the crime R.C. 17 (A) /2004 of CBI,
Visakhapatnam and prepared the said inventory list Ex.P.59 on 31.7.2004 prior to register this case and the investigation officers did not conduct any further investigation pertaining to the house hold articles possessed by the 1st accused either at the beginning of check period or at the end of check period and there is no substantial evidence to prove the date of acquire and the value of the said articles shown in the inventory list Ex.P.59 and the prosecution did not choose to examine the then Dy. Superintendent of Police, CBI,
Visakhapatnam V.K.C.Reddy who did inventory to prove and establish that the date of acquisition and the value of the articles are mentioned in the inventory list as per the information furnished by the wife and son of the 1st accused and the evidence of P.W.49 is not reveal that the date of acquisition and the value of the articles are mentioned in the inventory list as per the information given by the family members of the 1st accused and as per his evidence the wife of the 1st accused was only present in the house at the time of the inventory and that it is not liable to be considered that the Dy.Superintendent of Police, CBI,
Visakhapatnam V.K.C. Reddy mentioned the date of acquisition and the value of the articles in the inventory list as per the information furnished by the wife and son of the 1st accused.
15.It is further contended by the Advocate for the 1st accused that the 1st accused was working in Nepal by the date of search and he did not furnish details of value of the articles and date of those acquisitions and as per the said inventory list Ex.P.59, the 1st accused was not having even beds, dining table, geyser, air conditioner and other articles prior to check period even though he joined in
Government Service in the year 1979 and that the year of acquisition of articles mentioned in the said inventory list is not liable to be considered and the articles of the items 1, 3, 10, 12, 22, 28, 29, 47, 49, 57, 65, 68, 73, 75, 77, 102 and 111 shown in the inventory list are acquired prior to check period besides the articles of items 11, 25, 31, 32, 43, 48, 56, 61, 63, 64, 70, 74, 76, 86, 87, 88, 89, 90, 103, 112, 113 and 124 shown in the inventory list and the value of all the said articles shown in the inventory list is Rs.49,250/- and the same is to be considered for calculation of the assets possessed by the 1st accused at the beginning of the check period instead of Rs.21,550/- as shown in the statement 'A'.
16.As per the inventory list Ex.P.59, the then Dy.
Superintendent of Police, CBI, Visakhapatnam V.K.C. Reddy conducted search in the house of the 1st accused situated at Srinivasa Nagar,
Bank Colony, Gunadala, Vijayawada in the presence of the Manager,
Zonal office, Indian Bank, Vijayawada P.W.49 and other witnesses as per the search warrant obtained from the Principal Special Judge for
C.B.I. Cases, Visakhapatnam in the crime in R.C.No.17 (A)/2004 of
CBI, Visakhapatnam and prepared list for the articles noticed in the inventory and the wife and son of the 1st accused were present in the schedule premises and the date of acquisition and value of the articles were mentioned as per the information given by the family members of the 1st accused and P.W.49 and other witnesses attested it.
Further, as per the evidence of the then Inspector of Police,
CBI, Visakhapatnam P.W.61 and the contents of the FIR Ex.P.79, the crime R.C. 1(A)/2005 of CBI, Visakhapatnam against the 1st accused was registered on 13.01.2005. As per the inventory list Ex.P.59, the
Dy. Superintendent of Police, CBI, Visakhapatnam V.K.C. Reddy conducted search on 31.07.2004 in connection with the crime R.C. 17 (A) /2004 of CBI, Visakhapatnam and prepared the said inventory list
Ex.P.59 on 31.7.2004 prior to register this case. The investigation officers did not conduct any further investigation pertaining to the house hold articles possessed by the 1st accused either at the beginning of check period or at the end of check period.
17.The prosecution also did not choose to examine the then
Dy. Superintendent of Police, CBI, Visakhapatnam V.K.C. Reddy, who made inventory to prove that the date of acquisition and the value of the articles are alluded in the inventory list Ex.P.59 as per the information given by the wife and son of the 1st accused. Further, the evidence of P.W.49 is not reveal that the date of acquisition and value of the articles are enumerated in the inventory list Ex.P.59 as per the information given by the wife and son of the 1st accused. As per his evidence, the wife of the 1st accused alone was available in the house at the time of inventory.
The 1st accused did not dispute about possession of the articles shown in the inventory list Ex.P.59. He did not adduce any evidence to prove which articles were acquired prior to the check period and which articles were acquired during the check period from 01.09.1993 to 31.07.2004. He also did not adduce any evidence to prove about the value of the articles shown in the inventory list
Ex.P.59. Further, the wife of the 1st accused received copy of the inventory list Ex.P.59 and acknowledged the same on the date of inventory and she did not enumerate any protestation at the acknowledgment made by her.
In manner of that, which articles are possessed by the 1st accused prior to the date of check period and which articles are possessed by him during the date of check period are to be ascertained as per the contents of the inventory list Ex.P.59
Dt.31.7.2004 and also as per the prospects, measures and probabilities of the articles.
18.As per the inventory list Ex.P.59, the cost of the total articles mentioned in it is Rs.2,38,135/-. Further, as per the inventory list Ex.P.59, the cost of the articles acquired during the check period is
Rs.2,09,585/- and they are Item No.1: Aiwa music system Rs.1500/-;
Item No.3: Videocon Television Rs.14,000/-; Item No.4: Samsung
Refrigerator Rs.14,000/-; Item No.5: Vaccum Cleaner Euro clean
Rs.2,500/-; Item No.6: Motor pump Rs.1300/-; Item No.7: Inverter
Rs.4,000/-; Item No.10: Cordless Telephone (Panasonic) Rs.800/-;
Item No.12: Videogame (Winner) Rs.1500/-; Item No.13: electric
Vapourise Rs.100/-; Item No.15: Computer-Adcom with smarton monitor; Item No.17: Aircooler (USHA) Rs.3500/-; Item No.18:
Whiteline Iron Box Rs.250/-; Item No.19: Aiwa Walkman Rs.250/-;
Item No.20: Air conditioner (Samsung) Rs.31,300/-; Item No.21: V-
Guard Stabliser Rs.350/-; Item No.22: Cordless panasonic telephone
Rs.800/-; Item No.23: Electric Massage machine Rs.250/-; Item
No.24: Geyser (Vijay) Rs.4100/-; Item No.26: Mobile (Sony Ericson)
Rs.2500/-; Item No.27: Hero honda-CBZ Bike Rs.54,957/-; Item
No.28: Ceiling Fan Rs.1500/-; Item No.29: Ceiling Fan nos. 2
Rs.3000/- Item No.33: Pedestrian Fan (Crompton Greaves) Rs.1500/-;
Item No.41: Uni Stab Rs.350/-; Item No.42: Techno cokce Rs.123/-;
Item No.44: Calling bell Rs.50/-; Item No.45: Table Lamp Rs.100/-;
Item No.46: Chair with kushan Rs.1300/-; Item No.47: Single bed
Rs.1200/-; Item No.49: Double sofa Rs.1500/-; Item No.50: Cane hanging chair Rs.900/-; Item No.52: Dining Table Rs.4500/-; Item
No.53: Iron chair Rs.100/-; Item No.54: Plastic chairs 4 nos. Rs.600/-;
Item No.57: Computer table Rs.1200/-; Item No.58: Computer chair (steel) Rs.150/-; Item No.62: Steel belt cot Rs.1200/-; Item No.65:
Teapoy (plastic) Rs.250/-; Item No.66: Plastic small shelf Rs.100/-;
Item No.67: Shoe shelf iron Rs.100/-; Item No.68: Wooden stool (dining) Rs.100/-; Item No.71: Wooden stool Rs.100/-; Item No.73:
Plastic stool Rs.100/-; Item No.75: Wooden stool 2 nos. Rs.200/-;
Item No.77: Wooden stool 2 nos. Rs.200/-; Item No.78: Grinder (wet)
Rs.1500/-; Item No.79: Acquaguard Euroka Rs.4000/-; Item No.84:
Kitchen Press (Mira) Rs.25/-; Item No.85: Grinder rotomix Rs.1800/-;
Item No.91: Flower Plot 2 nos. Rs.250/-; Item No.92: Small; flower plot Rs.150/-; Item No.93: Flower pot 2 nos. 500/-; Item No.94:
Flower stand Rs.50/-; Item No.95: Bronze flower pot Rs.500/-; Item
No.96: Flower Pot Rs.200/-; Item No.97: Plastic dust bin 2 nos.
Rs.200/-; Item No.98: Clay statue Rs.150/-; Item No.99: Bronze flower plot Rs.100/-; Item No.102: Wall hanger Rs.250/-; Item
No.104: C.D. 25 nos. Rs.375/-; Item No.106: Mirror Rs.250/-; Item
No.107: Helmet Rs.150/-; Item No.108: Briefcase (Delsay) Rs.2000/-;
Item No.111: Suite Case (Aristocrat) Rs.900/-; Item No.112: Suitcase (VIP) Rs.1000/-; Item No.114: Massage belt Rs.300/-; Item No.115:
Air bags 3 nos. Rs.450/-; Item No.116: Slimmer Aqua pressure
Rs.100/-; Item No.117: Floppy dist 2 nos Rs.30/-; Item No.118:
Calculator (scientific) Rs.450/-; Item No.119: Cash Rs.2925/-; Item
No. 121: Gold ring 2 nos. Rs.4000/- and; Item No.125: Rudraksha studded in gold 3 gms Rs.2000/-, in total Rs.2,09,585/-.
The 1st accused mainly disputed about the Item No.3:
Videocon Television Rs.14000/-; Item No.28: Ceiling Fan Rs.1500/-;
Item No.29: Ceiling fan Rs.3000/- and; Item No.49: Sofa (Double) 1 no. Rs.1500/-. He has contended that the ceiling fans Item Nos.28, 29, 30, 31 and 32 are purchased in the same year and three (3) ceiling fans 30, 31 and 32 are shown as acquired prior to the date of check period and Item Nos.28 and 29 are shown as acquired during the check period and that the said ceiling fans Item Nos. 28 and 29 are to be considered as acquired prior to the date of check period alongwith ceiling fans Item Nos. 30, 31 and 32. Further, he has contended that Item No.48: sofa with cushion (Single 2 nos.)
Rs.2000/- and Item No.49: sofa (Double 1 no.) Rs.1500/- are acquired prior to the date of check period and Item No.48: sofa with cushion (Single 2 nos.) are shown in the list as acquired prior to the date of check period and Item No.49: Sofa (Double 1 no.) was shown in the list as acquired during the check period and it is not reasonable to consider that the chairs of the sofa are purchased in the year 1990 and the main sofa was purchased in the year 1999 and the main sofa and two chairs of the same set are not viable and probable to purchase separately with a gap of 10 years and that Item No.49: Sofa (Double 1 no.) is liable to be considered as acquired prior to the date of check period alongwith Item No.48: sofa with cushion (Single 2 nos.). The 1st accused further contended that he acquired Item No.3
Videocon Television prior to the date of check period and the same was shown as purchased in the year 1994 to emerge that it was acquired during the check period i.e, 01.09.1993 to 31.07.2004 and he joined in government service in the year 1979 and the assertion of the prosecution that he and his family members are not having even television prior to the date of check period is illogical and irrational and that Item No.3: Videocon Television is liable to be considered as acquired prior to the date of check period.
19.The prosecution did not adduce either oral or documentary evidence to prove that the ceiling fans items No.28 and 29 are different to the ceiling fans Item Nos. 30 to 32 and they are acquired in different years and similarly to prove that sofa with cushion (Single 2 nos.) Item No.48 and Sofa (Double 1 no.) Item No.49 are different and are not the same set of main sofa and chairs and they acquired in different years. The evidence of P.W.49 and the contents of inventory list Ex.P.59 are not divulge that the said ceiling fans Item nos. 28 and 29 are different to the other ceiling fans and the main sofa and two chairs are not the same set. The evidence of P.W.49 not reveal that the date of acquisition of articles are mentioned in the inventory list as per the information furnished by the wife and son of the 1st accused.
By and large, the sofa set is consisting of main sofa and two chairs and the set will be purchased collectively and further the main sofa and two chairs of the same set are not practicable and feasible to purchase separately with a gap of 10 years. The year of model or the date of manufacturing of videocon television are not mentioned in the inventory list Ex.P.59. Mostly, the televisions, computers and other electronic goods are containing the year of model and the date of manufacturing with the particulars of manufacturer. The inventory list
Ex.P.59 is not reveal those particulars pertaining to the Television Item
No.3.
In order that the ceiling fans Item Nos. 28 and 29
Rs.4,500/- in total are susceptible to be considered as acquired prior to the date of check period along with the other ceiling fans Item Nos.
30, 31 and 32 and similarly the Sofa (Double 1 no.) Item No.49
Rs.1500/- is liable to be considered as acquired prior to the date of check period alongwith sofa with cushion (Single 2 nos.) Item No.48 and further television Item No.3 Rs.14,000/- is liable to be considered as acquired prior to the date of check period in all probability and that the cost of the said articles Rs.20,000/- is to be deducted from the cost of the articles said to be acquired during the check period
Rs.2,09,585/- and after deducting the said amount Rs.20,000/-, the cost of the articles acquired during the check period is Rs.1,89,585/-.
Whenever the cost of the articles acquired during the check period is Rs.1,89,585/- out of the total cost of the articles
Rs.2,38,135/- shown in the inventory list Ex.P.59, the cost of the articles acquired prior to the check period is Rs.48,550-00 (Rs.2,38,135-00 - 1,89,585-00 = 48,550-00) and as such the value of the articles acquired by the 1st accused prior to the check period is
Rs.48,550/- and the same is considered as the cost of the articles acquired prior to the check period.
20. Item No.5 of Statement 'A":
It is contended by the prosecution that the 1st accused has invested amounts in the National Saving Scheme at Head Post Office,
Ongole and the credit balance in his account was Rs.37,500/- as on the date of 01.09.1993.
It is contended by the Advocate for the 1st accused that there is no dispute as regards the investment in National Saving
Scheme at Head Post office, Ongole but, the credit balance in his account as on 31.08.1993 was Rs.48,474/- and not Rs.37,500/- as shown in the Statement 'A' and that the investment in National Saving
Scheme is to be assessed at Rs. 48,474/- at the beginning of the check period i.e., as on 01.09.1993.
21.The prosecution for proof of the investment by the 1st accused in National Saving Scheme at Head Post Office, Ongole, got examined the then Dy. Post Master, Ongole as P.W.37 and got marked the savings bank ledger card as Ex.P.51.
The evidence of the then Dy. Post Master, Ongole P.W.37 reveal that the NSS-87 account bearing No.1400583 stands in the name of the 1st accused and the credit balance was Rs.48,303/- as on 31.07.2004 and the said credit balance Rs.48,303/- was including interest of Rs.1,178/- from 01.04.2004 to 31.07.2004 and an amount of Rs.32,000/- and Rs.10,000/- in total Rs.42,000/- are withdrawn from the account on 2.5.1994 and 6.3.2002 respectively.
Further, he has stated in the cross examination that the credit balance in the account was Rs.48,474/- as on 31.8.1993.
22.As per the ledger card of NSS-87 account bearing
No.1400583 Ex.P.51, the said account stands in the name of the 1st accused. The credit balance was Rs.48,474/- as on 31.08.1993. The credit balance was Rs.48,303/- as on the date of 31.07.2004. The 1st accused withdrawn an amount of Rs.32,000/- on 2.5.1994 and withdrawn an amount of Rs.10,000/- on 6.3.2002.
Further, an amount of Rs.10,803/- was shown towards interest income received from the said NSS-87 account and an amount of Rs.42,000/- was shown towards withdrawal from the said NSS-87 account in the statement 'C' pertaining to the income during the check period from 01.09.1993 to 31.07.2004. An amount of Rs.48,303/- was shown towards balance in the said NSS-87 account at the end of check period.
In order that the credit balance in the said NSS-87 account as on 31.08.1993 is liable to be assessed at Rs.48,474/- as stated by
P.W.37 in his evidence and not Rs.37,500/- as contended by the prosecution.
In view of this, Item No.5 Investment in National Saving
Scheme at Head Post Office, Ongole shown in the Statement 'A' is assessed as Rs.48,474/- and as such the said amount of Rs.48,474- 00 is taken into account as possessed by the 1st accused prior to the check period.
23.The particulars of the assets possessed by the 1st accused at the beginning of the check period comprehensively are :
Statement - A
Sl. Details of assets Value as per Value as per Value concluded
No. I.O 1st accused and arrived at by
Rs. Rs. the court Rs.
1. Agricultural Land at 44,81644,81644,816 Jagayyapeta purchased vide sale deed
2. Plot of 429 Sq. Yards in 14,48114,48114,481 Survey No.29/3 of Agatavarapadu, Pedakakani Mandal, Guntur District vide sale deed
Movable Properties:21,55049,25048,550
3.House hold articles:-
Cost of articles acquired
before 31.08.1993 as per
the inventory dated 31.07.2004
4. Investment made in shares 15,90015,90015,900 of M/s.JP Associates, New Delhi
5. Investment in NSS37,50048,474 48,474
6. Investment in Shares of 3,0003,0003,000 Nagarjuna Fertilizers
Total : 1,37,247 1,75,921 1,75,221
In view of all these reasons, I feel that the assets possessed by the 1st accused at the beginning of the check period are worth Rs.1,75,221/-.
This point is answered accordingly.
24. Point No.3:
Whether the 1st accused possessed the assets shown in the
statement 'B' worth Rs.30,15,457/- at the end of the check
period i.e., as on 31.07.2004 ?
The then Inspector of Police, CBI, Visakhapatnam P.W.70 laid final report showing the assets possessed by the 1st accused at the end of the check period i.e., as on 31.07.2004 in the statement 'B'.
As per the statement 'B', the 1st accused was in possession of assets worth Rs.30,15,457/- at the end of the check period. The particulars of the said assets shown in the statement 'B' are:
Sl. Amount in
Details of assets
No Rs.
1Immovable properties:
Agricultural Land measuring 0.81 Hectares (2 Acres) at Jagayyapeta, in the name of Smt. Vimala, purchased vide44,816 sale deed No.1807 dt.9.7.92 (Property cost Rs.40,000/- + Stamp papers cost Rs.4,400/- + Registration fee – Rs.416/-) 14,481 2Plot of 429 Sq. Yards (358.98 Sq. yards) on Survey No.29/3 of Agatavarapadu, Pedakakanimandal, Guntur District in the name of Smt. B.Jyothi Vimala. Purchased vide sale deed no.4770 dt. 16.06.93. (property cost Rs.12,900 + 1426/- of Stamp papers cost + 155/- of stamp duty) 3House site measuring 336 Sq. yards located at S.No.390/2, Gunadala village, Vijayawada and registered in the name of accused on 31-1-94. Consideration 1,92,850 value=Rs. 1,68,000/-, Stamp duty=Rs.21,850/-, Registration fee=Rs. 1121/- and other expenses of Rs.1879/-) 4Cost of house construction:
The cost of construction of Ground floor. 1st and 2nd floor of Residential building bearing D.No.54-14/5-61, Srinivas nagar, Bank colony, Vijayawada in the name of Sri23,09,000 B.Vasantha Kumar as per the CPWD valuation reports forwardedvideLr.No.SE(V)/HYD/2269/Cost/CBI (Visakhapatnam dated 22.02.06 by Sri R.P.Golkanda, S.E., CPWD IT Valuation Cell, Hyderabad 5Movable Properties: 81,725
Investments in Shares and Debentures by accused
and his wife during the check period:
Name of company of which shares Total value of were purchasedinvestment B.S.Vasantha Kumar and B.Jyothi Vimala Bank of BarodaRs. 8500/- Bank of IndiaRs. 9000/- Nagarjuna FertilizersRs. 3225/- Lanco IndustriesRs. 24000/- Essar Steel Rs. 33500/- Petronet LNGRs. 1500/- RILRs. 2000/- TotalRs. 81725/- Only those investments are reflected in which the Companies/Share Registry/Broking Firm have replied. The accused holds several other shares. Replies are awaited.
6Bank Balances:-34,891
Balance in account no.15751 in the name5,642 of Sri B.S.Vasantha Kumar in Bank of India, Kothapet Br., Guntur
Balance in account no.16699 in the name710 of Sri B.S.Ranjit Kumar, S/o. the accused in
Bank of India, Kothapet Br., Guntur
Balance in account no.80589 standing in21,539 the names of B.S.V.Kumar and B.J.Vimala in Andhra Bank, Ring Road Br., Vijayawada
Balance in Nepal SBI Khatmandu7000
TOTAL34891 7 Fixed deposits:-28,413
FDR:- Computerized Fixed Deposit Receipt15000 statement for FDR No.20030669 standing in the name of B.S.V.Kumar at Andhra Bank, Ring Road Br. (1 sheet)
Term deposit: A/c No. KD1659 standing1763 in the name of Sri B.S.Vasanth Kumar, S/o of the accused BSNL Security deposit: on 3-4-20021650 while obtaining telephone connection at his residence.
Caution deposit in insurance10000 employee’s Cooperative Society: made during the year 2001 by the accused while becoming the member.
Total28413 8MEP-94 ID No.25838430210,000 9Master Share Scheme ID No.2704948115,000 1Master Share Scheme ID No.28830895450 0 2,43,178 1Inventory of house hold articles including cash:- 1
House hold articles acquired during the check period:-as per the Original2,16,628 inventory list along with locker operation proceedings sheet dated 31.07.2004 (Including the cash of Rs.2925/-) (including the values of Motor Cycle, Computer and AC etc.)
Cash in the locker:
Cash available in the locker No.591 (As per5,000 the locker operation proceedings sheet)
House hold articles acquired before check21,550 period 2,43,178 1Cash Memo No.4630 Dt. 9.8.99 of Titan Show Room2,750 2 1Balance in NSS at the end of check period in NSS-87 48,303 3account of accused opened at HOP, Ongole.
Total 30,15,457
25. The 1st accused asserted and not disputed regarding the possession of the properties of Item No.1 agricultural land worth
Rs.44,816/-, Item No.2 plot worth Rs.14,481/-, Item No.5 (1)
Investments in Bank of Baroda worth Rs.8,500/-, Item No.5 (2)
Investments in Bank of India worth Rs.9,000/-, Item No.5 (6)
Investments in Petroment LNG worth Rs.1500/- and Item No.5 (7)
Investment in RIL Rs.2000/-, shown in Statement 'B' as on the date of 31.07.2004 i.e., at the end of the check period.
Further, he has disputed regarding the possession of the assets of Item No.3 house site worth Rs.1,92,850/-, Item No.4 cost of construction of the house consisting of ground floor + two floors worth
Rs.23,09,000/-, Item No.5 (3) Investments in Nagarjuna Fertilizers worth Rs.3,225/-, Item No.5 (4) Investments in LANCO Industries worth Rs.24,000/-, Item No.5 (5) Investments in ESSAR Steel worth
Rs.33,500/-, Item No.6 Bank Balance of Rs.34,891/-, Item No.7 fixed deposit amounts of Rs.28,413/-, Item No.8 deposits in MEP-94 for
Rs.10,000/-, Item No.9 deposits in Master Share Scheme for
Rs.5,000/-, Item No.10 deposits in Master Share Scheme for Rs.50/-,
Item No.11 Inventory of house hold articles including cash worth
Rs.2,43,178/-, Item No.12 cash under the cash memo of Titan Show
Room of Rs.2,750/- and Item No.13 Balance in the account of National
Savings Scheme-87 at Head Post Office, Ongole for Rs.48,303/- shown in the Statement 'B'.
26.Item No.3 of Statement 'B':
It is contended by the Advocate for the 1st accused that the prosecution did not examine any witness to prove that the 1st accused acquired the house site an extent of 333 Sq.yards in
Sy.No.390/2 of Gunadala Item No.3 shown in the Statement 'B' and he paid an amount of Rs.1,68,000/- to the vendor on 31.01.1994 and spent an amount of Rs.21,850/- towards stamp duty, an amount of
Rs.11,021/- towards registration fees and Rs.1,879/- towards other expenses and he was in possession of the said house site worth
Rs.1,92,850/-. The prosecution also did not file either original sale deed or certified copy of the sale deed to prove the purchasing of the said house site by the 1st accused and that the said site is to be deleted and removed from the list of statement 'B'.
It is contended by the prosecution that the 1st accused admitted that he has constructed a building consisting of Ground + 2 floors in the house site Item No.3 shown in the Statement 'B' and that non filing of original sale deed is not a cause to presume that the 1st accused is not in possession of the said house site. The 1st accused in his letter Dt.29.6.2005 which was appended to the valuation report
Ex.P.2 has stated that he purchased the land for Rs.1,68,000/-. The evidence of P.W.23 and the particulars of provident fund loan account
Ex.P.31 reveal the availment of non refundable provident fund loans for purchasing of the said house site. The evidence of P.W.25 and the contents of Ex.P.35 reveal about availing of the loan by the 1st accused to purchase the house site Item No.3 and the construction of the building in the said house site. The property returns submitted by the 1st accused Ex.P.36 reveal about purchasing of the house site Item
No.3 and the construction of the house in it and that the prosecution proved and established that the 1st accused is acquired and in possession of the house site Item No.3 worth Rs.1,92,850/- and he has constructed a building in it. The 1st accused did not adduce any evidence to rebut that he did not purchase the said house site and he did not construct any house in it and that the house site Item No.3 shown in Statement 'B' is to be considered as the property possessed by the 1st accused at the end of the check period.
27.The letter addressed by the 1st accused to the
Superintendent Engineer (Valuation) Income Tax Department P.W.2
Dt.29.06.2005 is attached to the file of the valuation report Ex.P.2.
P.W.2 has stated in his evidence that he received the copy of the letter addressed by the 1st accused and afforded to the Superintendent of
Police, CBI, Visakhapatnam under a covering letter. The 1st accused has asserted in the said letter Dt.29.06.2005 that he purchased the land (house site) in which he constructed the house for Rs.1,68,000/-.
Further the evidence of P.W.23 the then Dy. Manager, Chief
Vigilance Officer, Oriental Insurance Company, New Delhi and P.W.25
Assistant Divisional Manager, Oriental Insurance Company, Guntur and the particulars of the provident fund loan account of the 1st accused
Ex.P.31 and the particulars of the Housing Loan availed by the 1st accused Ex.P.35 reveal that the 1st accused availed loans of
Rs.2,58,900/- in total for purchasing of a house site and construction of a building in it and an amount of Rs.1,37,000/- in total was released on 11.01.1994 towards purchasing of a house site and an amount of
Rs.1,21,900/- was released on 21.6.2001 towards construction of a building in the said site.
28.The evidence of P.W.27 the manager in the vigilance department, Head office, Oriental Insurance Company and the annual property returns as on 31.03.2004 submitted by the 1st accused
Ex.P.36 reveal that the 1st accused submitted annual property returns
Ex.P.36 to the Head Office and P.W.27 rendered the said annual property returns Ex.P.36 to the CBI officials. The 1st accused valued the cost of site and construction of house in the annual property returns at Rs.12 lakhs. Further, as per the annual property returns
Ex.P.36, the 1st accused purchased a house site situated in Srinivasa
Nagar, bank colony, Vijayawada from M.Poornachandra Rao,
Vijayawada and he purchased the said site for Rs. 2 lakhs.
Whenever the evidence of P.W.2, P.W.23, P.W.25, P.W.27 and the contents of the letter addressed by the 1st accused to the
Superintendent Engineer (Valuation) Income Tax Department P.W.2
Dt.29.06.2005 attached to the valuation report Ex.P.2, the particulars of the provident fund loan account of the 1st accused Ex.P.31, the particulars of the Housing Loan availed by the 1st accused Ex.P.35 and the annual property returns as on 31.03.2004 submitted by the 1st accused Ex.P.36 positively reveal that 1st accused purchased the land (house site) in which he constructed the house for Rs.1,68,000/- and he availed loans of Rs.2,58,900/- in total for purchasing of the house site and construction of a building in it and he purchased the said house site situated in Srinivasa Nagar, bank colony, Vijayawada from
M.Poornachandra Rao, Vijayawada, it is not reasonable to consider the contentions of the 1st accused that he is not in possession of the said house site at the end of the check period. The prosecution proved and established that the 1st accused was in possession of a house site
Item No.3 of statement 'B' at the end of the check period. Further, the 1st accused asserted that he purchased the house site for
Rs.1,68,000/- and constructed a building in the said house site purchased by him.
29.Proof of charge depends upon the facts and circumstances of each case and evidence adduced by the prosecution in support of the charge. The onus of proof of every ingredient of the charge rests on the prosecution. Once the prosecution established the assets possessed by the accused, the burden shifts to the accused to establish what the prosecution alleged is not accurate and he is not acquire and in possession of such assets. The 1st accused did not adduce either oral or documentary evidence to prove that he is not in possession of the house site Item No.3 of statement 'B' and the site in which he constructed the building is not the house site of Item No.3.
Further, as per the admission made by the 1st accused in his letter
Dt.29.06.2005 attached to the file of valuation report Ex.P.2 and in the annual property returns Ex.P.36, the said house site item No.3 was purchased from M.Poornachandra Rao, Vijayawada.
Further, the stamp duty was Rs.21,850/- and registration fee was Rs.1121/- for registration of the said house site as per the particulars given by the prosecution in the statement 'B'. The 1st accused did not adduce any evidence to disprove the same. As per the particulars given by the prosecution in the statement 'B', an amount of
Rs.1,879/- was spent towards other expenses for acquisition of the said house site by the 1st accused. The same is not reveal in the evidence P.W.2, P.W.23, P.W.25 or P.W.27 and also not reveal in the letter addressed by the 1st accused to the Superintendent Engineer (Valuation) Income Tax Department P.W.2 Dt.29.06.2005 attached to the file of valuation report Ex.P.2, the particulars of the provident fund loan account of the 1st accused Ex.P.31, the particulars of the Housing
Loan availed by the 1st accused Ex.P.35 or in the annual property returns Ex.P.36 submitted by the 1st accused and that the said amount of Rs.1,879-00 is liable to be precluded.
In view of this, the 1st accused is in possession of the house site Item No.3 shown in statement 'B' and the value of the said house site including stamp duty Rs.21,850/- and registration fee
Rs.1121/- is Rs. 1,90,971/- and the same is considered and taken into account for value of the house site Item No.3 of statement 'B' possessed by the 1st accused at the end of the check period.
30.Item No.4 of Statement 'B':
It is contended by the prosecution that the 1st accused is in possession of house consisting of ground floor + two floors worth
Rs.23,09,000/- Item No.4 of statement 'B' at the end of the check period and he had constructed the entire building during the check period from 01.09.1993 to 31.07.2004. The Superintendent Engineer,
Valuation Cell, I.T. Department, Hyderabad was examined as P.W.2.
P.W.2 valued the cost of the house consisting of ground floor + two floors and submitted his report and as per his report, the cost of the building is Rs.23,09,000/-. His valuation report Ex.P.2 contains the value of each item and P.W.2 followed scientific method for calculation of value of the building. As per the evidence of P.W.1 and his report
Ex.P.1, the plinth area of the ground floor was 123.57 sq.metrs and as per the evidence of P.W.2 and his report Ex.P.2, the plinth area of the ground floor is 193 sq.metrs and that it has to be presumed that the 1st accused had undertaken extra construction of 69.43 sq.metrs after the inspection by P.W.1, i.e., after 1996-97. As per the evidence of
P.W.2 and his report Ex.P.2, the plinth area of the first floor is 160 sq.metrs and the plinth area of the second floor is 123 sq.metrs apart from load bearing structure of store and toilet. P.W.2 assessed the value on plinth area rates with the cost index applicable to the locality.
Plinth area rates and cost index method is used commonly for determination of the cost of the building. P.W.2 has stated in his evidence and also in the valuation report Ex.P.2 that the value of the first floor and second floor of the building of the 1st accused is at
Rs.483/- per square feet and the value of the ground floor of the building of the 1st accused is at Rs.383/- per square feet and that the value given by P.W.2 is alone to be considered for cost of the construction of the building consisting of ground floor + two floors of the 1st accused and the 1st accused did not adduce either oral or documentary evidence to support his contentions pertaining to the cost of the building.
It is contended by the advocate for the 1st accused that the evidence of P.W.1 and the valuation report Ex.P.1 reveal that the value of the ground floor of the building Item No.4 is Rs.3,50,000/- and the evidence of P.W.2 and the valuation report Ex.P.2 reveal that the value of the ground floor of the building Item No.4 is
Rs.7,96,000/- and that the prosecution produced evidence contra to one another about the valuation of the ground floor of the building
Item No.4. The cost of the construction of ground floor is
Rs.3,50,000/- and the cost of construction of other floors is
Rs.8,52,920/- and the 1st accused asserted the same in the income tax returns and annual property returns. P.W.2 has stated in his evidence that the value of ground floor is Rs.7,96,000/- at Rs.383/- per square feet and the value of first and second floors is
Rs.15,13,000/- at the rate of Rs.283/- per square feet and whereas he has stated in further chief examination that the value of the first floor and second floor of the building of the 1st accused is at Rs.483/- per square feet as per his report and the value of the first floor and second floor of the building of the 1st accused stated by him earlier is not correct and he has stated the same mistakenly. P.W.2 made two inconsistent statements in his evidence about the valuation of the first and second floor of the building. When a witness makes two inconsistent statements in his evidence with regard to material facts and circumstances, the testimony of such witness becomes unreliable and unworthy of credence and that his evidence is not liable to be taken into consideration, and even the adaptation and rendition made by him in the further chief examination is taken into consideration, the valuation of the first and second floor of the building of the 1st accused is not in accordance with the value as arrived by him in his report. The investigation officer P.W.70 has stated in his evidence that whenever there is substantial difference between the value given by the valuer authorized by the CBI officials and the value of other valuers for the same property, the investigation officer should arrange a meeting among them and arrive at the correct value of the building as per the circulars in CBI. He did not arrange any meeting between
P.W.1 and P.W.2. He also admitted the same in his evidence. P.W.70 did not arrange any meeting between P.W.1 and P.W.2 to arrive correct value of the building, intentionally to foist this case against the 1st accused.
31.It is further contended by the Advocate for the 1st accused that P.W.2 followed the C.B.D.T. Standard rates and not the rates of any other department of state. It is just and proper to the valuer to place reliance on local P.W.D. rates rather Central P.W.D. rates in order to arrive at the valuation of construction of house property and that the report given by P.W.2 is not liable to be considered and relied upon the decisions reported in i) I.T. Appeal No. 251/2012 on the file of the Hon'ble High Court of Kerala Dt.11.11.2013; ii) Tax Case Appeal
No.255/2014 on the file of the Hon'ble High Court of Judicature at
Madras Dt.22.07.2014 and; iii) Tax Case Appeal No.185/2010 on the file of the Hon'ble High Court of Judicature at Madras Dt.4.6.2013.
i)In the decision C.S.Daniel ... Appellant Vs., Dy. Commissioner of
Income Tax, Central Circle ... Respondent reported in
I.T.Appeal No.251/2012 on the file of the Hon'ble high Court of
Kerala Dt.11.11.2013, the Hon'ble High Court held that "the cost of construction may vary from State to State and that it is just and proper to place reliance on the local P.W.D.Rates rather than Central P.W.D.Rates in order to arrive at the valuation of the property";
ii)In the decision Commissioner of Income Tax Trichy ... Appellant
Vs., R.R.Govindarajan ... Respondent reported in Tax Case
Appeal No.255/2014 on the file of the Hon'ble High Court of
Judicature at Madras Dt.22.07.2014, the Hon'ble High Court held that "there is no specific notification or circular indicating that C.P.W.D.Rate alone should be adopted in arriving at the cost of construction and that it is justified in adapting the valuation of the state P.W.D.Rates for the purpose of determining the cost of construction"; iii)In the decision Commissioner of Income Tax, Coimbattore ...
Appellant Vs., K. Jay Kumar ... Respondent reported in Tax
Case Appeal No.185/2010 on the file of the Hon'ble High Court
of Judicature at Madras Dt.4.6.2013, the Hon'ble High Court held that "there is variation between the C.P.W.D.Rates and the State P.W.D.Rates. Considering the Geographical location, the availability of work force and the cost of materials, unless there are similarities in the rates under C.P.W.D and the State P.W.D, it do not think, it can blindly go by C.P.W.D. Rates for the purpose of arriving at the cost of construction".
32.The cost of the construction of the house consisting of ground floor + two floors Item No.4 as per statement 'B' is
Rs.23,09,000/-.
P.W.1 is the approved registered valuer of the Income Tax
Department. Ex.P.1 and Exs.D.1 to D.4 are the valuation reports pertaining to the ground floor of building of 1st accused. As per his evidence and the contents of the valuation reports Ex.P.1 and Exs.D.1 to D.4, P.W.1 has given valuation report Ex.P.1 Dt.5.7.1994 to the 1st accused for house construction in the site situated at S.B.Colony,
Gunadala, Vijayawada. He personally inspected the building under construction. The plinth area is 123.57 sq.metrs. The total estimation of the building of ground floor is Rs.3,50,000/-. Further, he has stated in the cross examination that at every stage of construction of the building, valuer has to give report on inspection and that he has given first estimation, Ex.D.1, for Rs.3,54,500/- on 15.4.1994 based upon the plan. Later, he inspected the building under construction on 26.5.1994 and given report Ex.D.2 and thereafter, he inspected the construction of the building on 12.6.1994 and gave report Ex.D.3. On 16.5.1995, he inspected the completed building and given report
Ex.D.4 and the cost of the building is Rs.3,50,000/-. The cost of construction of a building is less at Vijayawada when compared to the cost of the building in the Metropolitan Cities Delhi, Hyderabad and
Visakhapatnam. The construction of the building (ground floor) was completed as per the approved plan. The originals of Exs.D.1 to D.4 were addressed to the Oriental Insurance Company Limited. The total construction value of the ground floor was Rs.3,50,000/-. He was the panel valuer of Oriental Insurance Company by the date of preparation of originals of Exs.D.1 to D.4.
The evidence of P.W.1 and the valuation reports Exs.P.1 and Exs.D.1 to D.4 positively reveal that the plinth area of the ground floor of the building of the 1st accused is 123.57 sq.metrs and the construction of the ground floor was completed as on 16.5.1995 and the cost of the ground floor of the building of the 1st accused is
Rs.3,50,000/-.
33. Further, as per the evidence of P.W.2 and the valuation report Ex.P.2, the plinth area of the ground floor of the building of the 1st accused is 193 sq.metrs and total load bearing structures store and toilet in ground floor is 8.0 sq.metrs and the construction of the ground floor was commenced in the month of May, 1994 and completed the construction in the month of April, 1995 and the cost of the ground floor of the building of the 1st accused is Rs.7,96,350/- excluding the cost of land, cost of furniture, interest charges on borrowed capitals, cost of miscellaneous items and amount strength per antitermite treatment. Further P.W.2 has stated in the cross examination that he followed C.B.D.T. Standard rates and not the rates of any other department of the state.
The evidence of P.W.1 and the valuation reports Ex.P.1 and
Exs.D.1 to D.4 emphatically reveal that the construction of the ground floor was completed as on 16.5.1995 and the plinth area of the ground floor of the building of the 1st accused is 123.57 sq.metrs. As per the evidence of P.W.2 and the valuation report Ex.P.2, the construction of the ground floor was completed in the month of April, 1995 and the load bearing structures store and toilet are in the ground floor.
Further, the evidence of P.W.2 or the contents of the report
Ex.P.2 are not reveal that the 1st accused made further constructions in the ground floor subsequent to the month of April, 1995. The prosecution did not adduce either oral or documentary evidence to prove that the 1st accused made further constructions in the ground floor subsequent to the month of April, 1995 i.e., subsequent to the valuation reports given by P.W.1 and the plinth area of ground floor is 193 sq.metrs as on the date of inspection made by P.W.2.
Whenever, the evidence of P.W.2 or the valuation report
Ex.P.2 is not reveal that the 1st accused made constructions in the ground floor subsequent to the month of April, 1995 and whenever the prosecution did not adduce any material evidence to prove that the 1st accused made constructions in the ground floor subsequent to the date of valuation reports Ex.P.1 and Exs.D.1 to D.4 given by P.W.1, it is not reasonable to presume that the 1st accused made further constructions in the ground floor subsequent to the month of April, 1995 and the plinth area of the ground floor is 193 sq.metrs as asserted by the prosecution. Further, it was held in the above decisions on which the 1st accused relied upon that there is no specific notification or circular indicating that C.P.W.D.Rate alone should be adopted in arriving at the cost of construction and that it is justified in adapting the valuation of the state P.W.D.Rates for the purpose of determining the cost of construction. Further, Our Hon’ble Supreme
Courtin the decisions P.Satyanarayanamurthy ... Appellant Vs.,
Dist.Inspector of Police & another ... Respondent reported in 2015
(10) SCC at page no.152 and in the decisionSujit Biswas... appellant
Vs., State of Assam ... Respondent reported in 2013 (12) SSC at page
no.406, enunciated that "the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" in order to steer clear of any possible surmise or conjecture if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused". Further, our Hon'ble
Supreme Court in the decisionState ... Appellant Vs.,
K.Narasimhachary ... Respondent reported in 2005 (8) SSC at Page
No.364enunciated that "if two views are possible from the materials on record, the court may accept the one which favours the accused".
The evidence of P.W.1 and the contents of Ex.P.1, Exs.D.1 to D.4 consistently reveal that the cost of the ground floor of the building of the the 1st accused is Rs.3,50,000/- and in order that the same is liable to be considered for cost of the ground floor of the building of the 1st accused.
34.The evidence of P.W.2 and the report Ex.P.2 reveal that the plinth area of the first floor of the building of the 1st accused is 160 sq.metrs and the plinth area of the second floor of the building of the 1st accused is 123 sq. metrs, in total 283 sq. metrs i.e., 3046.212 sq.feet (283 X 10.764 = 3046.212). Further, as per the evidence of
P.W.2 and the report Ex.P.2, the value of the first floor and second floor of the building of the 1st accused is at Rs.483/- per square feet. He has stated in the cross examination that the value of the first floor and second floor of the building of the 1st accused is at Rs.483/- per square feet including all amenities such as internal water supply, sanitary, electrification, external services etc.,. In view of this, the cost of first floor and second floor of the building of the 1st accused is 3046.212 sq.feet X Rs.483/- = Rs.14,71,321/-. Further, the 1st accused did not adduce substantial and material evidence to prove that the valuation of the first floor and second floor given by P.W.2 in his report is not accurate and acceptable. As per the evidence of D.W.1
Sub Registrar, Gunadala, Vijayawada, the market value of building is fixed for the purpose of registration and collection of stamp duty. As per the evidence of D.W.3 Joint sub Registrar, Vijayawada, market value certificate issued for the purpose of registration and collection of stamp duty. In order that it is not sensible and reasonable to consider the evidence of D.W.1 and D.W.3 and the contents of market certificates Exs.D.8 and D.9 for the valuation of construction of a building.
In view of all these reasons, the evidence of P.W.1 and the contents of Ex.P1 and Exs.D.1 to D.4 positively reveal that the cost of the ground floor of the building of the 1st accused is Rs.3,50,000/- and the evidence of P.W.2 and the contents of Ex.P.2 positively reveal that the cost of the first floor and second floor of the building of the 1st accused is Rs. 14,71,321/- and that the total cost of the building of the 1st accused Item No.4 of statement 'B' consisting of ground floor and two floors is Rs.3,50,000-00 + Rs.14,71,321-00, in total
Rs.18,21,321/- and the same is liable to be assessed and considered for cost of the building of the 1st accused and as such the cost of the building of the 1st accused Item No.4 of statement 'B' consisting of ground floor and two floors is Rs.18,21,321/- and the same is taken into account for cost of the building Item No.4 of statement 'B' possessed by the 1st accused at the end of the check period.
35.Item No.5 (3) of Statement 'B':
The 1st accused regarding the item No.5 (3) investments in Nagarjuna Fertilizers Rs.3,225/- of statement 'B', contended that the evidence of P.W.53 and the contents of Ex.P.61 reveal that he purchased 200 shares worth Rs.3,225/- by paying Rs.1500/- on 12.11.1992, Rs.15,000/- on 12.4.1993 and Rs.225/- on 26.11.1993 and that an amount of Rs.1,725/- was only to be considered for investment in Nagarjuna Fertilizers during the check period.
The prosecution did not raise any objection and further conceded in the memorandum of argument that the investment in
Nagarjuna Fertilizers during the check period is only Rs.1,725/- and that the said amount is only to be taken into account.
The evidence of P.W.53, the Managing Director of
Nagarjuna Fertilizers and Chemicals Limited and the contents of statements of holdings Ex.P.61 positively reveal that the 1st accused purchased 200 shares worth Rs.3,225/- by paying Rs.1500/- on 12.11.1992, Rs.15,000/- on 12.4.1993 and Rs.225/- on 26.11.1993.
In manner of that only an amount of Rs.1,725/- is taken into account and considered for Item No.5 (3) investment in Nagarjuna
Fertilizers during the check period.
36. Item No.5 (4) of Statement 'B':
Further, the advocate for the 1st accused contended that the wife of the accused purchased 600 shares of M/s.Lanco for
Rs.6,000/- as per the evidence of P.W.66 and Ex.P.84 and that only an amount of Rs.6,000/- is liable to be considered for Item No.5 (4) of statement 'B' investment in Lanco Industries.
It is contended by the prosecution that an amount of
Rs.24,000/- was invested in Lanco Industries for purchasing 2400 shares and it has come to 600 shares during reorganization on 31.07.2004 as per the evidence of P.W.66 and Ex.P.84 and that the said amount of Rs.24,000/- is liable to be considered as investment in
Lanco Industries for purchasing shares.
The Assistant General Manager was examined as P.W.66.
He has stated in his evidence that B.Jyothi vimala, the wife of the 1st accused is having 600 shares of M/s.Lanco Industries Limited as on 31.07.2004 and she purchased the said 600 shares of M/s.Lanco
Industries Limited for Rs.6,000/- and she is having 100 shares of petronet as on 31.07.2004 and she has purchased the said 100 petronet shares for Rs.1,500/-.
37.Further, P.W.66 has stated that the 1st accused is having 100 shares of Bank of Baroda as on 31.07.2004 and the total value of the said shares is Rs.8,500/-.
The evidence of P.W.66 and the contents of the letter addressed by the Senior Manager and the application form Ex.P.84 positively reveal that the 1st accused and his wife made investment of
Rs.16,000/- in total to acquire shares in Lanco Industries. In manner of that an amount of Rs.16,000/- is considered and taken into account for Item No.5 (4) of statement 'B' investment in Lanco
Industries.
38.Item No.5 (5) of Statement 'B':
The 1st accused as regards the item No.5 (5) investments in Essar Steel Rs.33,500/- of statement 'B', contended that the evidence of P.W.63 and the document Ex.P.81 reveal that he and his wife invested only Rs.3,850/- to acquire shares in Essar Steels and that the said amount is only liable to be taken into consideration for the investment in Essar Steels.
It is contended by the prosecution that the evidence of
P.W.63 and the contents of Ex.P.81 reveal that the 1st accused acquired 170 shares and his wife acquired 170 shares, in total 340 shares for Rs.16,350/- and again the 1st accused purchased 130 shares and his wife purchased 130 shares in total 260 shares for an amount of Rs.17,150/- in the year 1994 and that an amount of
Rs.33,500/- is to be considered for investment in Essar Steels and the 1st accused did not adduce any evidence to prove that the investment in Essar Steels made by him is only Rs.3,850/-.
39.The then General Manager Data software Research
Company Private Limited was examined as P.W.63. As per the evidence of P.W.63, Data software research company is the share transfer agent of Essar Steel Limited. The 1st accused was holding 135 shares and his wife Jyothi Vimala was holding 135 shares in Essar
Steels Limited by July, 1993. The 1st accused and his wife purchased 35 shares each (70 shares in total) for total value of Rs.3,850/- in the month of September, 1993. Later, the 1st accused and his wife purchased 130 shares each for total investment of Rs.17,150/- in the month of April, 1994.
The evidence of P.W.63 and the contents of the details of shares Ex.P.81 consistently reveal that the 1st accused and his wife
Jyothi Vimala invested only Rs.3,850/- in the month of September, 1993 and Rs.17,150/- in the month of April, 1994 in total Rs.21,000/- for acquiring shares in Essar Company and that the 1st accused invested only an amount of Rs.21,000/- in Essar Company during the check period and the other investments are prior to the date of check period and that the said amount of Rs.21,000/- is evaluated and considered for Item No.5 (5) of statement 'B' investment in Essar
Company.
40.Item No.6 (1) (2) & (3) of Statement 'B':
The 1st accused as regards the item No.6 (1) (2) & (3) of statement 'B' Bank Balance in bank accounts contended that the evidence of P.W.5, P.W.11, P.W.30 and P.W.55 and the contents of statement of account Exs.P.5, P.13, P.45 and P.63 are not liable to be considered for determination of the balance in the bank accounts of him and his family members and the said bank statements Exs.P.5,
P.13, P.45 and P.63 are not containing the certificates to be required under Banker's Book Evidence Act and U/Sec.65-B of the Indian
Evidence Act and the same are inadmissible in evidence.
It is contended by the prosecution that the 1st accused and his family members are having bank accounts shown in the Item
No.6 of statement 'B' and the 1st accused did not dispute for calculation of the interest credited in the bank accounts towards his income during the check period as per the contents of statement of accounts Exs.P.5, P.13, P.45 and P.63 and he claimed the said interest towards his income during the check period and that he is precluded to contend that the said bank statements are not liable to be considered to determine the balance in the bank accounts of him and his family members.
41.As per the evidence of the then Chief Manager, Bank of
India, Guntur branch P.W.11 and the contents of the bank statement
Ex.P.13, the outstanding balance in the S.B.Account bearing No.15751 standing in the name of the 1st accused and his wife was Rs.5,642/- as on 31.07.2004. Further, the bank statement Ex.P.13 is containing certificate U/Sec. 2 (8) of Banker's Books Evidence Act and also certificate U/Sec. 93 of Information Technology Act.
The evidence of the then Dy. Chief Manager of Bank of
India, Guntur P.W.55 is also reveal that the outstanding balance in the
S.B.Account bearing No.15751 of the 1st accused and his wife was
Rs.5,642/- as on 31.07.2004. Further, as per the evidence of P.W.55 and the contents of the bank statement Ex.P.63, the outstanding balance in the S.B. Account bearing No.16699 standing in the name of the son of the 1st accused by name Ranjith Kumar was Rs.775/- as on 2.9.2006. The bank statement Ex.P.63 is containing the certificate given by P.W.55 under the Banker's Books Evidence Act.
42. The then Senior Manager, Andhra bank, Ring road branch,
Vijayawada was examined as P.W.30. The proceedings are marked as
Ex.P.45. As per the evidence of P.W.30 and the contents of the proceedings Ex.P.45, on 31.7.2004, the wife of the 1st accused Jyothi
Vimala, CBI Inspector and other witnesses came to Andhra bank, Ring road branch and the wife of the 1st accused opened the locker and they noticed Rs.5,000/- in the locker and the outstanding balance in the S.B.Account of the 1st accused and his wife Jyothi Vimala was
Rs.21,538.50 Ps as on 31.07.2004 and that the Inspector of Police,
CBI Visakhapatnam prepared proceedings for the same and they signed in it and copy of the said proceedings was furnished to the wife of the 1st accused.
Whenever, P.W.30 verified and informed the outstanding balance to the Inspector of Police, CBI, Visakhapatnam in the presence of the wife of the 1st accused and other witnesses and the Inspector of
Police, CBI prepared proceedings Ex.P.45, it is not reasonable to consider the contentions of the 1st accused that the prosecution did not prove the outstanding balance in their joint S.B. account maintained in Andhra bank, Ring road branch, Vijayawada. Further, the evidence of P.W.5 and the contents of bank statement Ex.P.5 also reveal that the outstanding balance in the S.B. Account of the 1st accused and his wife Jyothi Vimala was Rs.21,538.50 Ps as on 31.07.2004. The statement Ex.P.5 is containing the certificate given by the officer/manager under Banker's Book Evidence Act.
The Bank statements Exs.P.5, P.13 and P.63 are not containing the certificates required U/Sec. 65-B of Indian Evidence
Act. In the decision Anwar P.V. ... Appellant Vs., P.K. Basheer and
others ... Respondents reported in 2015 (3) ALT (Crl.) at page 161,
(S.C), our Hon’ble Supreme Court held that "an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements U/Sec.65-B of Indian Evidence Act are satisfied".
43.The evidence of P.W.5, P.W.11, P.W.30 and P.W.55 reveal the outstanding of balances in the S.B. Accounts of 1st accused and his family members. The 1st accused or his family members are not denied that the said S.B.Accounts are not relating to them. The 1st accused did not adduce evidence to prove about the outstanding balances in the said accounts. Further, he claimed interest credited in the said S.B.Accounts towards his income during the check period. In order that, the evidence of P.W.5, P.W.11, P.W.30 and P.W.55 is to be considered to determine the outstanding balances in the S.B.Accounts of 1st accused and his family members.
In view of all these reasons, the evidence of P.W.11 and
P.W.55 is reveal that the outstanding balance in the S.B.Account bearing No.15751 standing in the name of the 1st accused and his wife was Rs.5,642/- as on 31.07.2004. Further, the evidence of
P.W.55 is reveal that the outstanding balance in the S.B. Account bearing No.16699 standing in the name of the son of the 1st accused by name Ranjith Kumar was Rs.775/- as on 2.9.2006. The evidence of
P.W.5, P.W.30 and the contents of the proceedings Ex.P.45 reveal that the outstanding balance in the S.B.Account of the 1st accused and his wife Jyothi Vimala was Rs.21,538.50 Ps as on 31.07.2004 and that the said sums are liable to be considered and taken into account as the outstanding balances in the S.B.Accounts of the 1st accused and his family members and as such the item No.6 (1) of statement 'B' Bank
Balance in bank account of the 1st accused and his wife in Bank of
India, Kothapet Branch, Guntur is Rs.5,642/-, item No.6 (2) of statement 'B' Bank Balance in bank account of the son of the 1st accused in Bank of India, Kothapet branch, Guntur is Rs.710/- and the item No. 6 (3) of statement 'B' Bank Balance in joint bank account of the 1st accused and his wife B.J.Vimala in Andhra Bank, Ring Road
Branch, Vijayawada is Rs.21,539/- and the same are taken into account as possessed by the 1st accused during the check period.
44.Item No.6 (4) of Statement 'B':
It is contended by the advocate for the 1st accused that the prosecution did not examine any witnesses and did not file any document to prove that the 1st accused was having a bank balance of
Rs.7,000/- in State Bank of Katmund, Nepal and that the Item No.6 (4) of Statement 'B' Balance of Rs.7,000-00 in the account in Nepal
State Bank of India branch, Katmund is not liable to be taken into account to determine the assets possessed by him at the end of the check period.
It is contended by the prosecution that the 1st accused has
S.B.account in Nepal State bank of India branch, Katmund and the outstanding balance in the said S.B.Account was Rs.7,000/- and his salary details and bank statement reveal that the outstanding balance in the said account is Rs.7,000/- and that the same has to be considered to determine the assets possessed by him at the end of the check period.
45.The prosecution did not examine any witnesses to prove that the 1st accused was having balance of Rs.7,000/- in S.B. Account in Nepal State Bank of India branch, Katmund at the end of the check period. Ex.P.5 the statement of bank relating to S.B.Account in Andhra bank, ring road branch, Vijayawada, Ex.P.10 the statement of bank relating to the S.B. Account in Canara Bank, Chandramoulinagar branch, Guntur, Ex.P.11 the statement of bank relating to the S.B.
Account in the Bank of Baroda, Gudiwada branch, Ex.P.13 the statement of bank relating to S.B.Account in Bank of India, Guntur branch and Ex.P.64 the statement of bank relating to S.B.Account in
Bank of India, Guntur branch are not reveal transactions pertaining to any bank account in Nepal, State Bank of India branch, Kutmand.
Further, Ex.P.12 the particulars of the salary of the 1st accused during the period from September, 1993 to June, 2001, Ex.P.46 the particulars of the salary of the 1st accused during the period from July, 2001 to February, 2003 and Ex.P.49 the particulars of the salary of the 1st accused during the period from March, 2003 to July, 2004 are not reveal that the 1st accused was having balance of Rs.7,000/- in S.B.
Account in Nepal State Bank of India branch, Katmund at the end of the check period. The said statements pertaining to the particulars of the salary of the 1st accused are also not reveal that the 1st accused has S.B.Account in Nepal State Bank of India branch, Katmund.
Whenever, the bank statements or the statements relating to the salary of the 1st accused filed by the prosecution are not reveal that the 1st accused was having balance of Rs.7,000/- in S.B. Account in Nepal State Bank of India branch, Katmund at the end of the check period, it is not sensible and reasonable to consider the contentions of the prosecution that the salary details and bank statements emanated that the 1st accused was having balance of Rs.7,000/- in S.B. Account in Nepal State Bank of India branch, Katmund at the end of the check period.
In view of this, Item No.6 (4) of Statement 'B' Balance of
Rs.7,000-00 in the account in Nepal State Bank of India branch,
Katmund is not liable to be taken into account as possessed by the 1st accused at the end of the check period and as such the said amount of
Rs.7,000/- is precluded out of the assets possessed by the 1st accused at the end of the check period.
46.Item No.7 (1) of Statement 'B':
The prosecution contended that the evidence of P.W.5 and the contents of Ex.P.5 reveal that the 1st accused was having fixed deposit for Rs.15,000/- in Andhra Bank, ring road branch, Vijayawada and that the said amount of Rs.15,000/- is liable to be consideration as possessed by the 1st accused at the end of the check period.
It is contended by the advocate for the 1st accused that the prosecution did not adduce any documentary evidence to prove that the 1st accused deposited Rs.15,000/- during the check period and he was having the said fixed deposit of Rs.15,000/- at the end of check period and the prosecution cannot rely upon the oral evidence of branch manager P.W.5 to prove the same and the manager cannot depose evidence without producing the document in accordance with section 91 and 92 of Indian Evidence Act and that the prosecution failed to prove that the 1st accused was having fixed deposit for
Rs.15,000/- at the end of the check period and that the said amount of
Rs.15,000/- is liable to be excluded out of the assets possessed by the 1st accused at the end of the check period.
47.The evidence of P.W.5 the then Chief Manager, Andhra
Bank, ring road branch, Vijayawada reveal that the 1st accused and his wife are having fixed deposit bearing No.20030669 for Rs.15,000/- and the said fixed deposit was made on 26.9.2003 and the maturity date was 26.9.2008 and the said F.D.R of Rs.15,000/- was remained with them as on 31.7.2004.
The statement of the ledger (electronic record) which was appended to Ex.P.5 reveal that the 1st accused was having fixed deposit bearing No.20030669 for Rs.15,000/- and he deposited the said amount on 26.9.2003 and the same was remained with the bank as on 9.8.2006. The said statement of the ledger was containing the certificate under Banker's Book Evidence Act. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements U/Sec.65-B are satisfied. Further, under section 90
(a) of Indian Evidence Act, where any electronic record proved to be five (5) years old, is produced from any custody, the court may presume that the electronic signature of any particular person was so affixed by him or any person authorized by him.
In manner of that, the evidence of P.W.5 positively reveal that the 1st accused and his wife are having fixed deposit bearing
No.20030669 for Rs.15,000/- and the said fixed deposit was made on 26.9.2003 and the maturity date was 26.9.2008 and the said F.D.R of
Rs.15,000/- was remained with them as on 31.7.2004 though the contents of the said statement of ledger are not taken into consideration and further the original fixed deposit receipts are with the account holders and that it has to be considered that the 1st accused and his wife are having Fixed Deposit for Rs.15,000/- in
Andhra Bank at the end of the check period and as such Item No.7 (1) of Statement 'B' Fixed Deposit of Rs.15,000/- in Andhra Bank is taken into account as possessed by the 1st accused at the end of the check period.
48. Item No.7 (2) of Statement 'B':
The prosecution contended that the evidence of P.W.8 and the contents of Ex.P.10 reveal that the 1st accused was having term deposit for Rs. 1,763/- in the K.D. Account 1659 in Canara bank,
Chadramoulinagar branch, Guntur and that the said amount of
Rs.1,763/- is liable to be consideration as acquired by the 1st accused during the check period.
It is contended by the advocate for the 1st accused that the prosecution did not adduce either oral or documentary evidence to prove that the 1st accused was having term deposit for Rs.1,763/- in
K.D.Account 1659 in Canara Bank, Chandramoulinagar branch, Guntur at the end of check period and the evidence of P.W.8 and the contents of Ex.P.10 are not reveal that the 1st accused was having term deposit for Rs.1,763/- in K.D.Account 1659 in Canara Bank,
Chandramoulinagar branch, Guntur during the check period and the prosecution failed to prove the same and that the said amount of
Rs.1,763/- is liable to be excluded out of the calculation of assets possessed by the 1st accused at the end of the check period.
49.The then officer Canara Bank, Guntur was examined as
P.W.8. His evidence is not reveal that the 1st accused was having term deposit for Rs.1,763/- in K.D.Account 1659 in Canara Bank,
Chandramoulinagar branch, Guntur. Further, Ex.P.10 are the bank statements (ledger extracts in penning) of the S.B. Accounts 2207 and the loan account DUAL 2/99. The said statements are not containing any transactions in respect of the alleged term deposit of Rs.1,763/- in
K.D.Account 1659.
In manner of that, the prosecution failed to prove and establish that the 1st accused was having term deposit for Rs.1,763/- in K.D.Account 1659 in Canara Bank, Chandramoulinagar branch,
Guntur during the check period and as such the said amount of
Rs.1,763/- Item No. 7 (2) is excluded out of the assets possessed by the 1st accused at the end of the check period.
50.Item No.7 (3) of Statement 'B':
The prosecution contended that the evidence of P.W.13 and the contents of Ex.P.15 and P.16 reveal that the 1st accused endowed an amount of Rs.1,650/- towards security deposit in B.S.N.L on 3.4.2002 at the time of obtaining telephone connection to his residence and he was having security deposit of Rs.1,650/- in B.S.N.L and that the said amount of Rs.1,650/- is liable to be taken into account as acquired by the 1st accused during the check period.
It is contended by the advocate for the 1st accused that the prosecution did not adduce either oral or documentary evidence to prove that the 1st accused was having security deposit for Rs.1,650/- in B.S.N.L at the end of check period and the evidence of P.W.13 and the contents of Exs.P.15 and P.16 are not reveal that the 1st accused was having security deposit for Rs.1,650/- in B.S.N.L during the check period and the prosecution failed to prove the same and that the said amount of Rs.1,650/- is liable to be excluded out of the calculation of assets possessed by the 1st accused at the end of the check period.
51.The then Accounts Officer T.R.-1, B.S.N.L was examined as
P.W.13. His evidence is not reveal that the 1st accused paid amount towards security deposit at the time of obtaining telephone connection to his residence and he was having security deposit of Rs.1,650/- in their department. As per his evidence, an amount of Rs.35,465/- was paid towards telephone bills pertaining to the telephone No.2545486 standing in the name of 1st accused B.S.Vasantha Kumar from 11.9.2001 to 30.6.2004 and further an amount of Rs.28,289/- was paid towards telephone bills pertaining to the telephone No.2545486 standing in the name of the 1st accused B.S.Vasantha Kumar from 1.7.1998 to 11.7.2001. Exs.P.15 and P.16 computerized bill print outs are reveal only about the telephone bill payments concernintg to the telephone No.2545486 standing in the name of the 1st accused during the periods from 11.9.2001 to 30.6.2004 and from 1.7.1998 to 11.7.2001 respectively. The evidence of P.W.13 or the contents of
Exs.P.15 and P.16 are not reveal that the 1st accused paid amount towards security deposit at the time of receiving telephone connection to his residence and he was having security deposit of Rs.1,650/- in their department at the end of the check period.
In manner of that, the prosecution failed to prove and establish that the 1st accused was having security deposit of
Rs.1,650/- in B.S.N.L during the check period and as such the said amount of Rs.1,650/- Item No. 7 (3) is precluded out of the assets possessed by the 1st accused at the end of the check period.
52.Item No.7 (4) of Statement 'B':
The prosecution contended that the contents of Ex.P.82 reveal that the 1st accused availed loan of Rs.1 lakh on 20.04.2001 and he was issued a cheque for Rs.89,345/- and an amount of
Rs.10,655/- was deducted by the society and an amount of
Rs.10,000/-, out of Rs.10,655/- was deducted as caution deposit and the actual amount paid to the 1st accused is only taken into account towards his income and that the said amount of Rs.10,000/- is liable to be consideration as acquired by the 1st accused towards caution deposit during the check period.
It is contended by the advocate for the 1st accused that the prosecution did not adduce considerable evidence to prove that the 1st accused was having caution deposit of Rs.10,000/- in the General
Insurance Employees' Co-Op. Thrift and Credit Society Limited,
Vijayawada at the end of check period and the evidence of P.W.64 or the document Ex.P.82 are not reveal that the 1st accused was having caution deposit of Rs.10,000/- in General Insurance Employees' Co-Op
Thrift and Credit Society Limited, Vijayawada during the check period and the prosecution failed to prove the same and that the said amount of Rs.10,000/- is liable to be excluded out of the calculation of assets possessed by the 1st accused at the end of the check period.
The Senior Assistant, General Insurance Employees' Co-
Op. Thrift and Credit Society Limited, Vijayawada was examined as
P.W.64. The letter addressed by P.W.64 to P.W.70 Inspector of Police,
CBI, Visakhapatnam Dt.29.10.2005 and the letter addressed by the
Secretary, General Insurance Employees' Co-Op Thrift and Credit
Society Limited, Vijayawada N.Vishnuvardhan Rao to the Dy.
Superintendent of Police, CBI, Visakhapatnam Dt.19.09.2005 were marked as Ex.P.82.
53.The evidence of P.W.64 is not reveal that an amount of
Rs.10,655/- was deducted out of the loan amount sanctioned to the 1st accused by the society and an amount of Rs.10,000/-, out of
Rs.10,655/- was subtracted as caution deposit. As per his evidence, on 20.04.2001 the 1st accused availed loan of Rs.1 lakh from the society for domestic meets and the society issued a cheque for a sum of Rs.89,345/- and again on 20.12.2002, the 1st accused availed loan of Rs. 1 lakh from the society for domestic meets and they issued a cheque for a sum of Rs. 27,500/- by deducting the balance amount of the previous loan. Except that, his evidence is not reveal that an amount of Rs.10,000/- was deducted from the loan amount towards caution deposit and the same is in the society in the name of the 1st accused.
The letter addressed by him to P.W.70 Inspector of Police,
CBI, Visakhapatnam Dt.29.10.2005 reveal that the 1st accused paid an amount of Rs.54,450/- towards repayment of two loans availed by him amounting Rs.1,16,845/-. In manner of that, he availed only an amount of Rs.1,16,845/- (Rs.89,345-00 + Rs.27,500 = 1,16,845-00) and he paid Rs.54,450/- out of the said loan amount availed by him.
When the said letter consistently divulged that the 1st accused paid an amount of Rs.54,450/- towards repayment of two loans availed by him amounting Rs.1,16,845/-, it is not reasonable to presume and infer that an amount of Rs.10,000/- was deducted out of the loan amount sanctioned to the 1st accused towards caution deposit and he was having the said caution deposit of Rs.10,000/- at the end of the check period without corroboration of either oral or documentary evidence.
The letter addressed by the Secretary, General Insurance Employees'
Co-Op Thrift and Credit Society Limited, Vijayawada N.Vishnuvardhan
Rao to the Dy. Superintendent of Police, CBI, Visakhapatnam
Dt.19.09.2005 is not reveal that an amount of Rs.10,000/- was deducted out of the loan amount sanctioned to the 1st accused towards caution deposit and the same is in the society. As per the said letter, a loan of Rs. 1 lakh was sanctioned on 20.04.2001 and net amount of Rs.89,345-00 was disbursed and then a loan of Rs. 1 lakh was sanctioned on 20.12.2002 and net amount of Rs.27,500/- was disbursed.
54.The letter addressed by P.W.64 to P.W.70 Dt.29.10.2005 further reveal that the 1st accused has invested Rs.10,000/- towards shares. The said letter is not reveal on what date the 1st accused has invested the said amount of Rs.10,000/- towards shares and whether he was having the said shares as on 29.10.2005. The evidence of
P.W.64 is not reveal the same. The letter addressed by the Secretary of the Society is also not reveal that the 1st accused has invested
Rs.10,000/- towards shares. The prosecution did not choose to file any document or register maintained in the society pertaining to the said shares. In order that it is not reasonable and rational to consider the contents of the said letter, without any material documents relating to the possession of the shares by the 1st accused during the check period. Further, as per the statement 'C' only an amount of 1,16,845/- availed by the 1st accused is taken into consideration by the prosecution as his income during the check period.
To sustain a charge under section 13 (1) (e) of the P.C.Act, the prosecution must prove the nature and extent of pecuniary resources or property which were found in his possession. Once the prosecution established the same, the burden shifts to the accused to establish what the prosecution alleged is not proper and acceptable.
In manner of that, the prosecution failed to prove and establish that the 1st accused was having caution deposit of
Rs.10,000/- in General Insurance Employees' Co-Op Thrift and Credit
Society Limited, Vijayawada, during the check period and the evidence of P.W.64 or the contents of the letters Ex.P.82 are not reveal that an amount of Rs.10,000/- was deducted out of the loan amount sanctioned to the 1st accused towards caution deposit and the same is in his name in the society and further the evidence of P.W.64 or the contents of the letters Ex.P.82 are not reveal persistently that the 1st accused invested and having shares for Rs.10,000/- during the check period and as such the said amount of Rs.10,000/- Item No. 7 (4) is repudiated and excluded out of the assets possessed by the 1st accused at the end of the check period.
55. Item Nos.8, 9 and 10 of Statement 'B':
The prosecution contended that the evidence of P.W.59 reveal that the 1st accused invested amounts and purchasing units in the scheme of MEP-94 and in the Master Share schemes. The file relating to the intimation of assets and investments including deposits and LIC polices Ex.P.69 reveal that he invested Rs.10,000/- in the scheme of MEP-1994 (UTI) and invested Rs.5,000/- in the UIT Master
Shares schemes and that the said amount of Rs.15,050/- in total is liable to be consideration as acquired by the 1st accused during the check period.
It is contended by the advocate for the 1st accused that the prosecution did not adduce either oral or documentary evidence to prove that the 1st accused invested an amount of Rs.15,050/- in total, in the scheme of MEP-94 and in Master Share schemes during the check period and the evidence of P.W.59 is not reveal that the 1st accused was having the said investments of Rs.15,050/- during the check period and the prosecution failed to prove the same and that the said amount of Rs.15,050/- is liable to be excluded out of the calculation of assets possessed by the 1st accused at the end of the check period.
The then Regional Manager, Southern Regional office, U.T.I.
Technology Service Limited, Chennai was examined as P.W.59. His evidence reveal that the 1st accused was having investments in the scheme of MEP-94 and in the Master Share schemes.
56.Further, the evidence of P.W.60 the then Inspector of
Police, CBI, Visakhapatnam reveal that the Dy. Superintendent of
Police, CBI, Visakhapatnam alongwith him and others conducted search in the house of the 1st accused on 31.7.2004 and seized the file containing the intimation of assets and investments including deposits and LIC polices Ex.P.69 and other documents. Ex.P.69 is containing the signature of the 1st accused and it reveal that he invested Rs.10,000/- in the scheme of MEP-1994 (UTI) and invested
Rs.5,000/- in the UIT Master Shares schemes.
Whenever, the evidence of P.W.59 and the contents of
Ex.P.69 positively reveal that the 1st accused invested Rs.10,000/- in the scheme of MEP-1994 (UTI) and invested Rs.5,000/- in the UIT
Master Shares schemes, the burden lies upon the 1st accused to prove that he did not invest any amount in the said schemes and he is not having investments in the said schemes during the check period and the said document Ex.P.69 is not relating to him and the same is not seized from his house. The 1st accused did not adduce either oral or documentary evidence to prove that he is not having any investments in the scheme of MEP-1994 (UTI) and in the UIT Master Shares schemes. He did not get cross examine P.W.59. Further, Ex.P.69 is not reveal that he is having investment of Rs.50/- in Master Share
Scheme and that the same is not liable to be considered as he is having the said investment of Rs.50/- Item No.10 of Statement 'B' during the check period.
In manner of that, it has to be considered that the 1st accused is having Item No.8 of Statement 'B' investment of
Rs.10,000/- in the scheme of MEP-1994 (UTI) and Item No.9 of
Statement 'B' investment of Rs.5,000/- in the UIT Master Shares scheme at the end of the check period and as such Item No.8 of
Statement 'B' investment of Rs.10,000/- in the scheme of MEP-1994 (UTI) and Item No.9 of Statement 'B' investment of Rs.5,000/- in the
UIT Master Shares scheme are taken into account as possessed by the 1st accused at the end of the check period and the said amount of
Rs.50/- Item No.10 of statement 'B' is forbidden and excluded out of the assets possessed by the 1st accused at the end of the check period.
57.Item No.11 (1), (2) & (3) of Statement 'B':
As per the inventory list Ex.P.59, the then Dy.
Superintendent of Police, CBI, Visakhapatnam V.K.C. Reddy conducted search in the house of the 1st accused situated at Srinivasa Nagar,
Bank Colony, Gunadala, Vijayawada in the presence of the Manager,
Zonal office, Indian Bank, Vijayawada P.W.49 and other witnesses as per the search warrant obtained from the Principal Special Judge for
C.B.I. Cases, Visakhapatnam in the crime in R.C.No.17 (A)/2004 of
CBI, Visakhapatnam and prepared list for the articles noticed in the inventory and the wife and son of the 1st accused were present in the schedule premises and the date of acquisition and value of the articles were mentioned as per the information given by the family members of the 1st accused and P.W.49 and other witnesses attested it.
The prosecution did not choose to examine the then Dy.
Superintendent of Police, CBI, Visakhapatnam V.K.C. Reddy, who made inventory to prove that the date of acquisition and the value of the articles are alluded in the inventory list Ex.P.59 as per the information given by the wife and son of the 1st accused. Further, the evidence of
P.W.49 is not reveal that the date of acquisition and value of the articles are enumerated in the inventory list Ex.P.59 as per the information given by the wife and son of the 1st accused. As per his evidence, the wife of the 1st accused alone was available in the house at the time of inventory.
The 1st accused did not dispute about possession of the articles shown in the inventory list Ex.P.59. He did not adduce any evidence to prove which articles were acquired prior to the check period and which articles were acquired during the check period from 01.09.1993 to 31.07.2004. He also did not adduce any evidence to prove relating to the value of the articles shown in the inventory list
Ex.P.59. Further, the wife of the 1st accused received copy of the inventory list Ex.P.59 and acknowledged the same on the date of inventory and she did not enumerate any protestation at the acknowledgment made by her.
In manner of that, which articles are possessed by the 1st accused prior to the date of check period and which articles are possessed by him during the date of check period are to be ascertained as per the contents of the inventory list Ex.P.59
Dt.31.7.2004 and also as per the prospects, measures and probabilities of the articles.
As per the inventory list Ex.P.59, the cost of the total articles mentioned in it is Rs.2,38,135/-. Further, as per the inventory list Ex.P.59, the cost of the articles acquired during the check period is
Rs.2,09,585/-.
58.The prosecution did not adduce either oral or documentary evidence to prove that the ceiling fans items No.28 and 29 are different to the ceiling fans Item Nos. 30 to 32 and they are acquired in different years and similarly to prove that sofa with cushion (Single 2 nos.) Item No.48 and Sofa (Double 1 no.) Item No.49 are different and are not the same set of main sofa and chairs and they acquired in different years though the 1st accused asserted that the same are acquired prior to the date of the check period. The evidence of P.W.49 and the contents of inventory list Ex.P.59 are not divulge that the said ceiling fans Item nos. 28 and 29 are different to the other ceiling fans and the main sofa and two chairs are not the same set. The evidence of P.W.49 is not reveal that the date of acquisition of articles are mentioned in the inventory list as per the information furnished by the wife and son of the 1st accused. By and large, the sofa set is consisting of main sofa and two chairs and the set will be purchased collectively and further the main sofa and two chairs of the same set are not practicable and feasible to purchase separately with a gap of 10 years. The year of model or the date of manufacturing of videocon television are not mentioned in the inventory list Ex.P.59. Mostly, the televisions, computers and other electronic goods are containing the year of model and the date of manufacturing with the particulars of manufacturer. The inventory list Ex.P.59 is not reveal those particulars pertaining to the Television Item No.3.
In order that, the ceiling fans Item Nos. 28 and 29
Rs.4,500/- in total are susceptible to be considered as acquired prior to the date of check period along with the other ceiling fans Item Nos.
30, 31 and 32 and similarly the Sofa (Double 1 no.) Item No.49
Rs.1500/- is liable to be considered as acquired prior to the date of check period alongwith sofa with cushion (Single 2 nos.) Item No.48 and further television Item No.3 Rs.14,000/- is liable to be considered as acquired prior to the date of check period in all probability and that the cost of the said articles Rs.20,000/- is to be deducted from the cost of the articles said to be acquired during the check period
Rs.2,09,585/- and after deducting the said amount Rs.20,000/-, the cost of the articles acquired during the check period is Rs.1,89,585/- out of the total cost of articles Rs.2,38,135/- shown in the inventory list Ex.P.59 and the cost of the articles acquired prior to the check period is Rs.2,38,135-00 - 1,89,585-00 = 48,550-00 and as such the value of the articles acquired by the 1st accused Item No. 11 (1) of
Statement 'B' during the check period is Rs.1,89,585/- and the value of the articles acquired by the 1st accused Item No. 11 (3) of statement 'B' prior to the check period is Rs.48,550/- and the same is taken into account for the value of house hold articles Item Nos. 11 (1) and 11 (3) of statement 'B' .
59. The evidence of P.W.30 the then Senior Manager, Andhra bank, Ring road branch, Vijayawada and the contents of the proceedings Ex.P.45 reveal that on 31.7.2004, the wife of the 1st accused Jyothi Vimala, CBI Inspector and other witnesses came to
Andhra bank, Ring road branch and the wife of the 1st accused opened the locker and they noticed Rs.5,000/- in the locker and that the
Inspector of Police, CBI Visakhapatnam prepared proceedings for the same and they signed in it and copy of the said proceedings was furnished to the wife of the 1st accused.
In order that, it is not reasonable to consider the contentions of the 1st accused that the said amount of Rs.5,000/- is not liable to be taken into account as possessed by him at the end of the check period, since the same is not seized and produced before the court. Further, the 1st accused or his family members are not denied that the said locker and the amount of Rs.5,000/- in the locker are not relating to them.
In view of all these reasons, the said amount of
Rs.5,000/- which was in the locker as on 31.07.2004 is liable to be taken into account for assessing the assets possessed by the 1st accused during the check period and as such item No.11 (2) of statement 'B' cash in the locker is Rs.5,000/- and the same is taken into consideration for Item Nos. 11 (2) of statement 'B'.
60.Item No.12 of Statement 'B':
The prosecution contended that cash memo Ex.P.70 was seized during the course of conducting search in the house of the 1st accused by the Dy.Superintendent of Police, CBI, Visakhapatnam alongwith P.W.60 and others and as per the said cash memo an article was purchased in the World of Titan, Arundelpet, Main road, Guntur and that the said amount of Rs.2,750/- is liable to be taken into consideration as possessed by the 1st accused during the check period. The 1st accused contended that the prosecution did not choose to examine any witnesses to prove that his daughter was purchased an article worth Rs.2,750/- on 9.8.1999 under the said cash memo and that the same is liable to be excluded out of the assets possessed by him at the end of the check period.
The evidence of P.W.60 the then Inspector of Police, CBI,
Visakhapatnam reveal that the Dy. Superintendent of Police, CBI,
Visakhapatnam alongwith him and others conducted search in the house of the 1st accused on 31.7.2004 and seized the cash memo
Ex.P.70 and other documents.
61.As per Ex.P.70, B.S.Souwmya, Guntur purchased an item for Rs.2,750-00 from the World of Titan, Arundelpet main road, Guntur on 9.8.1999 under the cash memo. The said cash memo is not reveal which item was purchased under it. Further, it is not reveal that the daughter of the 1st accused purchased item and paid cash under the said cash memo. The said cash memo is not containing signature of the daughter of the 1st accused.
Whenever, the cash memo Ex.P.70 is not reveal which item was purchased under it and who paid cash and whenever the said cash memo is not containing signature of the 1st accused or his daughter, the prosecution has to examine anyone relating to the World of Titan,
Arundelpet, Main Road, Guntur to prove that the 1st accused or his daughter or his family members purchased an item under the said cash memo. The prosecution did not choose to examine any one to prove the same.
In manner of that, it is not reasonable and sensible to consider the said cash memo Ex.P.70 to prove that an item was purchased for Rs.2,750/- by the 1st accused or his family members without corroboration evidence and that the prosecution failed to prove that an item purchased under the said cash memo is in possession of the 1st accused or his family members during the check period and as such the said amount of Rs.2,750/- Item No.12 of statement 'B' is forbidden and excluded out of the assets possessed by the 1st accused at the end of the check period.
62. Item No.13 of Statement 'B':
The prosecution for proof of the investment by the 1st accused in National Saving Scheme at Head Post Office, Ongole, got examined the then Dy. Post Master, Ongole as P.W.37 and got marked the savings bank ledger card as Ex.P.51.
The evidence of the then Dy. Post Master, Ongole P.W.37 and the contents of the savings bank ledger card Ex.P.51 reveal that the NSS-87 account bearing No.1400583 stands in the name of the 1st accused and the credit balance was Rs.48,303/- as on 31.07.2004 and the said credit balance Rs.48,303/- was including interest of
Rs.1,178/- from 01.04.2004 to 31.07.2004 and an amount of
Rs.32,000/- and Rs.10,000/- in total Rs.42,000/- are withdrawn from the account on 2.5.1994 and 6.3.2002 respectively. Further, P.W.37 has stated in the cross examination that the credit balance in the account was Rs.48,474/- as on 31.8.1993. In manner of that, the credit balance in the said NSS-87 account as on 31.07.2004 is to be assessed at Rs.48,303/- as stated by P.W.37 in his evidence.
In view of this, Item No.13 Balance in National Saving
Scheme at Head Post Office, Ongole shown in the Statement 'B' is considered as Rs.48,303/- and the same is taken into account as possessed by the 1st accused at the end of the check period.
63.The particulars of the assets possessed by the 1st accused at the end of the check period comprehensively are :
Statement - B
Sl. Details of assets Value as Value as Value No. per I.O. per 1st concluded Rs. accused and arrived Rs. at by the court Rs. 1Agriculturallandat44,81644,81644,816 Jaggayyapeta in the name of B.Jyothi Vimala, wife of the 1st accused 2Plot at Agatavarapadu in the14,48114,48114,481 name of B.Jyothi Vimala, wife of the 1st accused 3House site at Gunadala,1,92,850-NIL-1,90,971 Vijayawada in the name of the 1st accused 4Cost of construction of the23,09,00012,05,00018,21,321 building consisting of ground floor + two floors at Srinivasanagar, Vijayawada in the name of 1st accused 5 (i)Investment in Bank of Baroda8,5008,5008,500 5 (ii)Investment in Bank of India9,0009,0009,000 5 (iii)Investments in Nagarjuna 3,2251,7251,725 Fertilizers 5 (iv)InvestmentsinLanco24,0006,00016,000 Industries 5 (v)Investments in Essar Steel33,5003,50021,000 5 (vi)Investment in Petronent LNG1,5001,5001,500 5 (vii)Investment in RIL2,0002,0002,000 6 (i)Balance in the account of 1st5,642-NIL-5,642 accused in the Bank of India, Kothapeta branch, Guntur 6 (ii)Balance in the account of the710-NIL-710 son of the 1st accused in Bank of India, Kothapeta branch, Guntur 6 (iii)Balance in the account of the21,539-NIL-21,539 1st accused and his wife in Andhra Bank, ring road branch, Vijayawada 6 (iv)BalanceinNepal7000-NIL--NIL- S.B.I.Katmund 7 (i)Fixed Deposit in the name of15000-NIL-15000 1st accused in Andhra Bank, Ring road branch, Vijayawada.
7 (ii)Term deposit in the name of1,763-NIL--NIL- the 1st accused 7 (iii)Security Deposit in BSNL1,650-NIL--NIL- 7 (iv)Caution deposit in Insurance10,000-NIL--NIL- Employees'Co.Operative Society 8MEP-94 ID10,000-NIL-10,000 9Master Share Scheme5,000-NIL-5,000 10Master Share Scheme50-NIL--NIL- 11 (i)Household articles acquired2,16,62826,1211,89,585 during the check period 11 (ii)Cash in locker5,000-NIL-5,000 11 (iii)Household articles acquired21,55049,25048,550
before check period
12Cash memo2,750-NIL--NIL- 13Balance in N.S.S.Account at48,303-NIL-48,303 the end of the check period
TOTAL30,15,45713,71,89324,80,643
In view of all these reasons, I feel that the assets possessed by the 1st accused at the end of the check period are worth
Rs.24,80,643/-.
This point is answered accordingly.
64.Point No.4:
Whether the 1st accused acquired assets worth Rs.28,78,210/-
during the check period from 01.09.1993 to 31.07.2004 ?
In view of all the reasons conferred on the above points 2 and 3, the assets possessed by the 1st accused at the beginning of the check period is worth Rs.1,75,221/-as per compendious Statement 'A' and the assessed possessed by the 1st accused at the end of the check period is worth Rs.24,80,643/- as per the compendious
Statement 'B' and as such the assets acquired by the 1st accused during the check period is Rs.23,05,422.00 (Rs.24,80,643-00 -
Rs.1,75,221-00 = 23,05,422-00).
In view of this, the 1st accused acquired assets worth Rs.
23,05,422-00 during the check period i.e., from 01.09.1993 to 31.7.2004.
This point is answered accordingly.
65.Point No.5:
Whether the total income of the 1st accused during the check
period from 01.09.1993 to 31.07.2004 from all known source is
Rs.31,75,927/- as shown in the statement 'C' ?
P.W.70 the then Inspector of Police, CBI, Visakhapatnam shown the income of the 1st accused during the check period in the
Statement 'C' in the final report. As per the statement 'C', the total income of the 1st accused is Rs.31,75,927/- during the check period i.e., from 01.09.1993 to 31.07.2004. The particulars of the income shown in the statement 'C' are:
Sl. Details of Assets Amount in
No. Rs.
9,61,695 1Net Salary income of the accused during the check period:
Period Place Total Gross Net salary
Salary 01.09.93 to Ongole, 15,41,9565,82,771 June, 2001 Gudivada, (94 months)Guntur July, 2001 to Cochin5,40,0001,08,630 Feb., 2003 (20 months) March, 2003 Khatmandu8,17,3732,70,294 to 31.07.2004 (17 months)
Total (Rs.) 28,99,329 9,61,695
5,25,000 2House building loan from OICL: Rs. 3 Lakhs during the year 1994 and Rs.2.25 lakhs during the year 2000.
3Loans and maturity amounts from LIC: 51,694 Loan from LIC obtained on 26.3.2001: As per the details provided by Sr. Branch1,77,300 Manager, LIC of India, Kochi (Rs.1540 + 10693/- + 6470/- + 32,991/-) 1,25,606 Maturity amounts received during the check period against LIC Policy Nos.46964968,670680821, 670682674, 670229062 and 670682662.
Total: 1,77,300
5Net income from maturity amounts of ULIP from the policies held in the joint name of accused and his wife61,509 during the check period:
Policy No.Amount investedAmount received Rs.12,000/-Rs. 28,047/- ULIP Policy No. UL 900311115305
Rs.4,000/-Rs. 28,047/- ULIP Policy No. UL 13225503
Rs.16,000/-Rs. 28,047/- ULIP Policy No. UL 530363663
TOTALRs.32,000/-Rs. 93,509/- 7Advances and other money received from OICL:-
Items Year Amount (Rs.) Festival Advance19933,500 Festival Advance19943,500 Festival Advance19953,500 Festival Advance19963,500 61,000 Festival Advance19975,500 Festival Advance19985,500 90,320 Festival Advance19995,000 Festival Advance20005,500 Festival Advance20018,500 Festival Advance20028,500 Festival Advance20038,500 Total61,000
Leave encashment for the year 1996-978,693
Leave encashment for the year 1998-998,672
Leave encashment for the year 200111,955
Total90,320 8Income from sale of Shares and Dividend received:-
Items Amount (Rs.)
Income from sale of 100 RPL2,714 debentures in the name of accused 9,635 200 shares of RPL sold during 1999.3,100
Income from sale of 100 RPL2,714 debentures in the name of wife of the accused.
Dividend received from RPL during the284.50 check period 822.50 Dividend received from M/s.Jayaprakash Associates Ltd. during the check period 9635
Income from sale of shares is awaited from more than seven companies.
2,41,845 9Thrift & Credit Society Ltd.:- 1,16,845 Two loans from GIC Emp. Thrift and Credit society, Vijayawada: obtained during April, 2001 and December, 2002. The total amount received was Rs.116845/- (Rs.89345 + Rs.27500) 1,25,000 Loan from GIC Emp. Thrift and Credit Society, Chennai:- Documents are yet to come. Liabilities intimation document available.
TOTAL 2,41,845 14,419 10Interest Income:- Interest income received in SB account197 No.318 of Bank of Baroda, Gudivada during the check period.
452 Interest income received from Canara Bank, Chandramouli nagar branch, Guntur in SB A/c. No.2204 during the check period.
2,012 Interest income received from Bank of India, Kothapeta, Guntur SB a/c No.15751 during the check period.
825 Interest income received from Bank of India, Kothapeta, Guntur SB a/c No.16699 during the check period.
130 Interest income received in account No.80589 in Andhra Bank, Ring Road branch, Beza circle, Vijayawada.
10,803 Interest income received from NSS 87 account in HPO, Ongole.
TOTAL 14,419
11Non refundable PF loan received from OICL: The2,58,900 accused obtained an amount of Rs.1.37 lakhs in the year 1994 and again an amount of Rs.1.22 lakhs in the year 2001 from Provident Fund as non refundable loan.
12HOUSE RENT:-4,81,000 Assessment yearAnnual rental income as per IT Returns 1996-199742,000 1997-199848,000 1998-199948,000 1999-200048,000 2000-200148,000 2001-200248,000 2002-200348,000 2003-200448,000 2004-200575,000 2005-2006 (4 months)28,000 TOTAL 4,81,000 1,89,600 13AGRICULTURAL INCOME:
YearAmount 1993-1994Rs. 14,400/- 1994-1995Rs. 14,400/- 1995-1996Rs. 14,400/- 1996-1997Rs. 14,400/- 1997-1998Rs. 14,400/- 1998-1999Rs. 14,400/- 1999-2000Rs. 14,400/- 2000-2001Rs. 16,800/- 2001-2002Rs. 16,800/- 2002-2003Rs. 16,800/- 2003-2004Rs. 19,200/- 2004-2005Rs. 19,200/- TOTALRs. 1,89,600/- 14Wage arrears for the assessment year 2001-0299,704 16NSS-87 withdrawal from A/C. No.1400583 opened at 42,000 HPO, Ongole in the name of accused. Rs.32,000 withdrawn on 2-5-94 and Rs.10,000/- withdrawn on 6- 3-2002 17Sale of 200 Essar Steel shares in the year 199423,000
Total 31,75,927
66.Item No.1 (i) of Statement 'C':
As per the statement 'C', the total gross salary of the 1st accused for the period from 01.09.1993 to June, 2001 (94 months) was Rs.15,41,956/- and net salary was Rs.5,82,771/-.
The advocate for 1st accused contended that the salary for the month of November, 1994 and the salary for the month of
December, 1994 are not included in the gross salary and net salary for the period from 01.09.1993 to June, 2001 and the evidence of P.W.10 and the contents of Ex.P.12 reveal the same and that the salary of the 1st accused for the months of November and December, 1994 are to be included in the total salary for the period from September, 1993 to
June, 2001.
The prosecution contended that the gross salary and net salary of the 1st accused for 94 months are taken into account for the period from September, 1993 to June, 2001 and there is no any omission in the calculations and the contentions of the 1st accused are not tenable.
67.The period from September, 1993 to June, 2001 is 7 years 9 months and 29 days i.e., 94 months and that the salary of 94 months is to be taken into account to calculate the salary of the 1st accused for the period from September, 1993 to June, 2001.
P.W.10 the then Vigilance Officer, Regional Office, Oriental
Insurance Company has stated in his evidence that he furnished the salary particulars of the 1st accused from 01.09.1993 to 30.06.2001, to the CBI under the covering letter Dt.12.07.2006. The gross salary of the 1st accused during the said period was Rs.15,41,956.63 Ps and the net salary during the said period was Rs.5,82,771/-. Further, he has stated in the cross examination that the salary particulars for the month of November, 1994 and December, 1994 are missing as per the contents of his letter.
The pay particulars and the covering letter are marked as
Ex.P.12. P.W.10 has acknowledged and asserted in the letter
Dt.13.07.2006 addressed to the Investigation Officer that the salary particulars of the 1st accused furnished by him are not including the salary particulars of November, 1994 and December, 1994. Further, the statement of the salary particulars for the year 1994 certified by
P.W.10 in Ex.P.12 is not containing the pay particulars for the months of November and December, 1994 and the said columns are kept blank and the gross and net salary for the said months in totals are shown as '0'.
Whenever the salary of the 1st accused for the months
November and December, 1994 are not taken into account for the calculations of the total salary during the said period and the statement of salary particulars for the year 1994 certified by P.W.10 in
Ex.P.12 is not containing the pay particulars for the months of
November and December, 1994, the net salary for the months of
November and December, 1994 is to be included in the calculation of the salary during the said period as contended by the 1st accused.
68. The evidence of P.W.10 is not reveal about the pay particulars of the 1st accused for the months of November and
December, 1994. The prosecution did not choose to examine any witnesses or to file any documents to prove the pay particulars, gross salary and net salary of the 1st accused during the months of
November and December, 1994. The 1st accused further contended that his salary for the months of November and December, 1994 is liable to be calculated basing on the salary particulars of January, 1995 furnished by P.W.10.
The statement of the pay particulars for the year 1993 furnished by P.W.10 reveal that the gross salary paid for the month of
December, 1993 and the gross salary paid for the month of January, 1994 are in similar and that the pay particulars for the month of
January, 1995 is liable to be taken into consideration for the salary of the 1st accused for the months of November and December, 1994 and the net salary of the 1st accused for the month of January, 1995 was
Rs. 11,881/- and in manner of that the net salary for the months of
November and December, 1994 is Rs.23762/- in total and the said amount of Rs.23,762/- is to be included in the calculation of the net salary of the 1st accused during the period from 01.09.1993 to 30.06.2001 and after subsuming the said amount, the net salary of the 1st accused during the period from 1.9.1993 to 30.6.2001 is
Rs.6,06,533-00 (Rs.5,82,771-00 + Rs.23,762-00 = Rs. 6,06,533-00).
In manner of that, Item No.1 (i) Net salary of the 1st accused during the period 01.09.1993 to 30.06.2001 (94 months) shown in the Statement 'C' is considered as Rs.6,06,533/- and the same is taken into account as income of the 1st accused during the check period.
69. Item No.1 (ii) of Statement 'C':
As per the statement 'C', the total gross salary of the 1st accused for the period from July, 2001 to February, 2003 (20 months) was Rs.5,40,000/- and net salary was Rs.1,08,630/-.
The advocate for 1st accused contended that P.W.31 is not the competent witness to depose about the salary particulars of the 1st accused during the period from July, 2001 to February, 2003 and the deductions towards advance salary are not liable to deduct out of the gross salary as no advance salary will be paid by the Government and that those deductions are to be included to the calculations of the net salary of the 1st accused during the said period.
P.W.31 is the Dy. Manager, Oriental Insurance Company,
Divisional Office, Cochin. As per his evidence, the pay particulars of the 1st accused for the period from July, 2001 to February, 2003 were furnished to the Chief Manager, Vigilance Department, New Delhi on 21.11.2006 under a covering letter. The chief manager in turn afforded the said particulars under a covering letter to the CBI,
Visakhapatnam. The Chief Manager is no more and he has acquaintance with the signature of the chief manager. The signature in the covering letter was relating to the Chief Manager.
70.Further, as per his evidence and as per the contents of pay particulars and covering letter Ex.P.46, the gross salary of the 1st accused was Rs.5,74,399.77 Ps and net salary was Rs.1,08,629.97 Ps and the deductions in total are Rs.4,65,769.30 Ps.
Whenever, P.W.31 furnished the salary particulars of the 1st accused during the period from July, 2001 to February, 2003 to the
Chief Manager and the chief manager provided the salary particulars to the CBI under covering letter in Ex.P.46 with the particulars of gross salary, net salary and total deductions and whenever the chief manager is no more and P.W.31 has acquaintance with his signature, it is not reasonable to consider the contentions of the 1st accused that
P.W.31 is not the competent witness and the pay particulars of the 1st accused in Ex.P.46 are not liable to be taken into consideration.
Further, the 1st accused did not file any document to prove that the deductions towards advance pay in Ex.P.46 are not accurate.
In view of this, the evidence of P.W.31 and the contents of
Ex.P.46 positively reveal that the net salary of the 1st accused during the period July, 2001 to February, 2003 is Rs.1,08,630/- and as such
Item No.1 (ii) net salary of the 1st accused during the period from
July, 2001 to February, 2003 (20) months shown in the Statement 'C' is considered as Rs.1,08,630/- and the same is taken into account as income of the 1st accused during the check period.
71.Item No.1 (iii) of Statement 'C':
As per the statement 'C', the total gross salary of the 1st accused for the period from March, 2003 to July, 2004 (17 months) was Rs.8,17,373/- and net salary was Rs.2,70,294/-.
The advocate for 1st accused contended that the evidence of P.W.34 and the contents of Ex.P.49 is reveal that the net salary for the period from March, 2003 to July, 2004 is Rs.3,09,644/- including allowances and children education expenses and that the same is to be considered to calculate the income of the 1st accused during the check period.
The prosecution asserted in the additional memorandum of arguments that the net salary of the 1st accused during the said period Rs.2,70,294/- is included the educational expenses and the other allowances and that the amount of Rs.2,70,294/- is alone to be considered for the net salary of the 1st accused during the said period.
The evidence of P.W.34 the then chief Executive Officer,
Oriental Insurance Company Limited, Katmund, Nepal and the contents of the statement of the salary particulars for the period from 01.03.2003 to 31.07.2004 Ex.P.49 positively reveal that the net salary of the 1st accused during the said period was Rs.2,35,964/-, other allowances drawn in total was Rs.48,080/- and the amount towards children education expenses drawn was Rs.25,600/-.
Whenever the evidence of P.W.34 and the contents Ex.P.49 consistently reveal that the net salary was Rs.2,35,964/-, other allowances drawn in total was Rs.48,080/- and the amount towards children education expenses drawn was Rs.25,600/-, it is not reasonable and justifiable to consider the contentions of the prosecution that the net salary Rs.2,70,294/- shown in the statement is including the educational expenses and the other allowances.
In manner of that, the income of the salary of the 1st accused during the said period from 1.3.2003 to 31.7.2004 is
Rs.2,35,964/- + Rs.48,080/- + Rs.25,600/- = Rs. 3,09,644-00 and as such Item No.1 (iii) net salary of the 1st accused during the period from March, 2003 to July, 2004 (17) months shown in the Statement 'C' is considered as Rs.3,09,644/- and the same is taken into account as income of the 1st accused during the check period.
72.Item No.2 of Statement 'C':
As per the statement 'C', the housing building loans availed from Oriental Insurance Company Limited in the year 1994 and 2000 was Rs.5,25,000/-.
The 1st accused acknowledged and did not dispute about the availment of loans at Rs.5,25,000-00 in total, from Oriental
Insurance Company Limited and as such the said amount
Rs.5,25,000/- is taken into account as income of the 1st accused during the check period.
73.Item No.3 (i) of Statement 'C':
As per the statement 'C', the 1st accused availed a loan of
Rs.51,694-00 from Life Insurance Corporation of India, Kochi on 26.3.2001.
The 1st accused contended that he also availed a loan of
Rs.12,610/- and a loan of Rs.65,200/- during the check period and the same is reveal in the evidence of P.W.67 and in the documents
Exs.P.85 and P.86 and the said amount of Rs.77,810/- has to be included in the calculation for the loan amounts availed from the Life
Insurance Corporation of India, Kochi, during the check period.
The prosecution contended that as per the evidence of
P.W.67, the 1st accused paid an amount of Rs.10,690/- on 9.7.1994 towards discharge the loan amount availed by him and he paid an amount of Rs.32,209/- on 23.6.2001 towards discharge the loan amount availed by him and that the said amounts are liable to be deducted out of the loan amounts availed by him and after subtracting the said amount, the loan amount availed by him from the Life
Insurance Corporation of India is Rs.51,694/- and the same is liable to be considered.
The evidence of P.W.67 the then Administrative Officer, Life
Insurance Corporation of India, Kalur branch, Kochi and the contents of the photocopy of loan applications, loan payment vouchers and statements of maturity claims Ex.P.85 and the statements of status reports of policies Ex.P.86 consistently reveal that the 1st accused availed loans of i)Rs.1,540/- on 22.7.1983; ii) 10,690/- on 13.4.1988; iii) Rs.12,610/- on 9.7.1994 and; iv) Rs.65,200/- on 23.6.2001, in total Rs.90,040/- on the life insurance policies.
Further, P.W.67 has stated in the cross examination that premium to the L.I.C. policies and loan repayment installments were deducted and paid out of the salary of the 1st accused. Ex.P.12 the statements of salary particulars of the 1st accused and the statements of salary particulars of the 1st accused Exs.X.2, X3 and X.4 positively reveal about deduction and payment of L.I.C. premium and loan installments, out of the salary.
Whenever the net salary of the 1st accused is taken into consideration as the income during the check period, the deductions which are made in the gross salary towards premium and loan installments are not to be calculated again out of the loan amounts availed by the 1st accused.
In view of all these reasons, the evidence of P.W.67 and the contents of Ex.P.85 and Ex.P.86 positively reveal that the 1st accused availed loans of i)Rs.1,540/- on 22.7.1983; ii) 10,690/- on 13.4.1988; iii) Rs.12,610/- on 9.7.1994 and; iv) Rs.65,200/- on 23.6.2001, in total Rs.90,040/- on the life insurance policies during the check period and as such the said amount of Rs.90,040/- is considered as Item No.3 (i) Loans availed on L.I.C. polices and the same is taken into account as income of the 1st accused during the check period.
74. Item No.3 (ii) of Statement 'C':
As per the statement 'C', the maturity amounts received during the check period on the L.I.C. policies was Rs. 1,25,606/-.
The 1st accused contended that the evidence of P.W.12 reveal that 'on account of survival benefit for the policy
No.670682662', an amount of Rs.7,500/- on 12.3.1997 and an amount of Rs.7,500/- on 28.3.2002 were paid to his wife B.J.Vimala and whenever the premium paid on the policy of his wife is taken into consideration as paid by him, the said amount of Rs.15,000/- in total paid to his wife in addition to the survival benefit is to be included in the amount of maturity amounts received on the L.I.C. policies during the check period.
The prosecution contended that the evidence of P.W.12 is not to be considered as the same is not mentioned in Ex.P.14 and that the said amount of Rs.15,000/- in total is not liable to be considered towards income of the 1st accused during the check period.
The evidence of P.W.12, the then Branch manager, L.I.C.of
India, Kothapet branch, Guntur consistently reveal that the matured amount and survival benefits paid to the 1st accused is Rs.1,25,606/-.
Further, he has stated in the cross examination that 'on account of survival benefit for the policy No.670682662', an amount of Rs.7,500/- on 12.3.1997 and an amount of Rs.7,500/- on 28.3.2002 were paid to the wife of the 1st accused B.J.Vimala and the same are reflected in the documents pertaining to the L.I.C. Policies in Ex.P.14. Further, the status report of policy No. 670682662 Dt.12.09.2006 in Ex.P.14 positively reveal that an amount of Rs.7,500/- was paid to B.J.Vimala, wife of 1st accused under a cheque bearing No.0503033 Dt.28.3.2002.
The status reports of policy No.670682662 further reveal about payment of Rs.7,500/- towards survival benefit on 12.3.1997.
In manner of that, the evidence of P.W.12 and the contents of status reports of the policies in Ex.P.14 positively reveal that 'on account of survival benefit for the policy No.670682662', an amount of Rs.7,500/- on 12.3.1997 and an amount of Rs.7,500/- on 28.3.2002 were paid to the wife of the 1st accused B.J.Vimala and that the said amount ofRs.15,000/- is to be included to the amount of
Rs.1,25,606/- received towards maturity amounts of insurance policies and after adding the said amount of Rs.15,000/- the amount received towards maturity amounts of insurance policy is Rs.1,40,606-00 (Rs.15,000-00 + Rs.1,25,606-00= Rs.1,40,606-00) and as such the said amount of Rs.1,40,606/- is considered as Item No.3 (ii) Maturity amounts received on L.I.C. polices and the same is taken into account as income of the 1st accused during the check period.
75. Item No.5 of Statement 'C':
As per the statement 'C', the amount invested in ULIP
Policies by the 1st accused was Rs. 32,000/- and the amount received from the said ULIP Policies was Rs.93,509/- and that the income from the said ULIP Policies is Rs.61,509/-, after deducting the invested amount.
The 1st accused contended that the total amount received from the ULIP policies was Rs.97,509.25 Ps as per the evidence of
P.W.59 and the prosecution failed to prove that he invested an amount of Rs.32,000/- in total in the said policies and that the alleged amount of Rs.32,000/- is not liable to be deducted out of the amount received on maturity of the said policies and the total amount of Rs.97,509.25
Ps is to be considered as his income during the check period.
The prosecution contended that the evidence of P.W.59 reveal about investments made by the 1st accused in the said policies and further, the contents of the documents Ex.P.69 and the income tax returns submitted by the 1st accused Ex.P.48 reveal about the amounts invested by the 1st accused in the said policies and that the contentions of the 1st accused are not liable to be considered.
76.The evidence of P.W.59 the then Regional Manager, southern Regional Office, UTI Technology Services Limited, Chennai positively reveal that the 1st accused and his wife made investments in ULIP Schemes. The statement of assets containing the signature of the 1st accused in Ex.P.69 and the copy of the income tax returns submitted by the 1st accused Ex.P.48 positively reveal about the investments made by him in the ULIP schemes.
Whenever the statement of assets containing the signature of the 1st accused in Ex.P.69 and the income tax returns submitted by him Ex.P.48 reveal that he made investments in ULIP Schemes, the burden lies upon the 1st accused to prove that he did not invest an amount of Rs.32,000/- in ULIP Scheme. He failed to prove the same.
Further, the evidence of P.W.59 reveal that an amount of
Rs.28,047.38 Ps on 23.03.2000, Rs.19,973.25 Ps on 30.03.1988 and
Rs.49,489.29 Ps on 23.03.2002, in total Rs.97,509.92 Ps was received by the 1st accused and his wife towards units in the ULIP scheme.
In consequence of this, for calculation of the net income of the 1st accused out of the units in the ULIP Scheme, the investments
Rs.32,000/- are liable to be deducted out of the total amount of
Rs.97,509.92 Ps received for the units in the ULIP scheme and after withholding the invested amount, the amount received from the units in the ULIP scheme is Rs.97,509.92 Ps - Rs.32,000-00 = Rs.
65,509.92 Ps and as such the said amount of Rs.65,510-00 is considered as Item No.5 of statement 'C' Net income from maturity amounts in ULIP scheme and the same is taken into account as income of the 1st accused during the check period.
77. Item No.7 of Statement 'C':
As per the statement 'C', the festival advance received by the 1st accused from 1993 to 2003 is Rs.61,000/-.
The evidence of P.W.15 the then Divisional manager,
Divisional office, Oriental Insurance Company Limited, Gudiwada and
P.W.25 the then Assistant Divisional Manager, Divisional office,
Oriental Insurance Company Limited, Guntur and the contents of ledger extracts Exs.P.18 and P.33 to P.35 positively reveal that the 1st accused received Rs.61,000/- in total towards festival advance from the year 1993 to 2003.
The 1st accused contended that the festival advance received in the year 2002 is Rs.12,440/- and not Rs.8,500/- and that
Rs.12,440/- is to be taken into consideration for calculation of the festival advance received by him in the year 2002.
Ex.X.3 is the particulars of the salary, deductions and loans received by the 1st accused for the period during July, 2001 to
February, 2003. The said document was got sent for by the 1st accused. Ex.X.3 positively reveal that the festival advance received by the 1st accused on 7.2.2002 was Rs.8,500/- and that the contentions of the 1st accused that the festival advance received during the year 2002 was Rs.12,440/- and not Rs.8,500/- are not plausible and tenable.
Further, as per the statement 'C', the encashment of leave was Rs.8,693/- for the year 1996-97, Rs.8,672/- for the year 1998-99 and Rs.11,955/- for the year 2001 in total Rs. 29,320/-.
The 1st accused acknowledged and not disputed about receiving the amount of Rs.29,320/- in total towards leave encashment.
78.Further, the 1st accused contended that he received an amount of Rs.5,000/- in the year 1998 and Rs.5,500/- in the year 2000 towards flood advance and the evidence of P.W.28 reveal the same and the said amount of Rs.10,500/- in total is not taken into consideration by the investigation officer and that the said amount shall be added to the amount of advances and leave encashment received by him during the check period.
The prosecution denied the same and further contended that the evidence of P.W.28 and the contents of the schedule statements Exs.P.37 and P.38 reveal about availment of flood advances, the particulars of repayments and outstanding balance and the investigation officer did not take into account of the payments as expenditure in statement 'D' and that the said flood advance amounts are not liable to be taken into account as income of the 1st accused during the check period.
The evidence of P.W.28 the officer of the Oriental Insurance
Company Limited, Divisional office, Guntur revealed that the 1st accused received an amount of Rs.5,000/- in the year 1998 and
Rs.5,500/- in the year 2000 towards flood advance. Further, his evidence is also reveal that the said flood advances are recovering in installments.
Ex.P.12 the statements of salary particulars of the 1st accused positively reveal that the flood advance installments were recovered from the gross salary of the 1st accused. Further, the net salary of the 1st accused is taken into consideration as the income during the check period. In order that the amounts received by the 1st accused towards the flood advances Rs.10,500/- in total is to be taken into account as income of the 1st accused during the check period.
In view of this, the total amount received by the 1st accused towards festival advance during the period 1993 to 2003 is
Rs.61,000/-, the total amount received by the 1st accused towards leave encashment during the period 1996-97 to 1999-2001 is
Rs.29,320/- and the total amount received by the 1st accused towards flood advance is Rs.10,500/- and as such Item No.7 Advances and other money received from the Oriental Insurance Company Limited by the 1st accused during the check period is Rs.1,00,820/- and the same is taken into account as income of the 1st accused during the check period.
79. Item No.8 of Statement 'C':
As per the statement 'C', the 1st accused sold the shares of RPL and received Rs.2,714/-, Rs.3,100/- and Rs.2,714/- in total
Rs.8,528/- and received Rs.284.50 Ps from RPL towards dividend.
Further as per statement 'C', the 1st accused received Rs.822.50 Ps towards dividend from M/s.Jayaprakash Associates Limited.
The 1st accused acknowledged and not disputed about receiving of Rs.8,528/- in total towards sale price for the shares of RPL and receiving of Rs.284.50 Ps from RPL, towards dividends.
Further, the 1st accused contended that the amount received towards sale price for the shares in M/s.Jayaprakash
Associates Limited is Rs.15,750/- and the amount received towards dividends from M/s. Jayaprakash Associates Limited is Rs.1,000/- and the said amount of Rs.16,750/- in total is to be taken into account for the income from sale of shares and dividends received by him and his wife during the check period and the evidence of P.W.50 and the contents of Ex.P.60 reveal the same.
80.The evidence of P.W.50 the Vice President of
M/s.Jayaprakash Associate Industries Limited, New Delhi and the contents of the statement of account of share holding in the name of
B.Jyothi Vimala, wife of 1st accused Ex.P.60 reveal that the wife of the 1st accused B.Jyothi Vimala was holding 175 shares as on 01.09.1993 and she received Rs.1,000/- towards dividends and she sold away all the shares of 175 by the end of 9.1.2002 and the value of each share was at Rs.83/- to Rs.98/- on the date of sale of shares. Further, as per the contentions of the 1st accused the said shares were sold at
Rs.90/-. In manner of that, the wife of the 1st accused was received
Rs.1,000/- towards dividend and received an amount of Rs.15,750/- (175 X Rs.90 = Rs. 15,750) and that the total amount of Rs.16,750/- is to be taken into account towards dividends and sale price for the shares in M/s.Jayaprakash Associates Limited. Further, the prosecution conceded and asserted in the additional memorandum of arguments that the amount of Rs.16,750/- claimed by the 1st accused as per the documentary evidence may be treated as income.
In view of this, the 1st accused received Rs.8,528/- in total towards sale price for the shares of RPL and received Rs.284.50 Ps from RPL towards dividends and further received an amount of Rs.
16,750/- towards dividends and sale price for the shares in
M/s.Jayaprakash Associates Limited and as such Item No.8 Income received from the sale of shares and dividends by the 1st accused during the check period is Rs. 25,562-00 (Rs.8,528-00 + Rs.284.50 + Rs.16,750 = Rs. 25,562.50 Ps) and the same is taken into account as income of the 1st accused during the check period.
81.Item No.8 (A) of Statement 'C':
The investigation officer P.W.70 has stated at the statement 'C' in the final report after the Item No.8 that "income
from the sale of shares pertaining to more than seven (7)
companies is awaiting".
The prosecution did not determine any sum as income received by the 1st accused from the sale of shares of such seven companies.
The 1st accused contended that the investigation officer foisted this case against him and the narration made by him that "the income from the sale of shares pertaining to more than seven (7) companies is awaiting", is itself divulge that he did not investigate the case properly.
Further, the 1st accused contended that he and his wife received i) amount towards sale of shares and dividends from the
Bank of India; ii) amount towards dividends from N.F.C.L (Nagarjuna
Fertilizers and Chemicals Limited) and; iii) income received and declared in Income Tax Returns and the investigation officer intentionally and deliberately did not taken into account of the said amounts as his income during the check period and all the said amounts are to be included in his income during the check period.
i)Amount received towards sale of shares and dividends
from the Bank of India during the check period:
The advocate for the 1st accused contended that the evidence of P.W.54 reveal that the 1st accused received Rs.3,500/- towards marketing of 100 shares during the year 1998 and the wife of the 1st accused got dividend of Rs.1,119/- on 15.7.2002 and that the said amounts Rs. 4,619/- in total is to be considered and included in the income of the 1st accused during the check period.
The prosecution contended in the memorandum of arguments that the evidence of P.W.54 and Ex.P.62 is reveal that the 1st accused invested Rs.9,000/- in total for purchasing 200 shares and the same is not considered as assets in the statement 'B' and that the contentions of the 1st accused are not tenable.
The evidence of P.W.54, Assistant General Manager,
Sharepro Service India Private Limited and the contents of the letter and applications Ex.P.62 consistently reveal that they are the service provider of Bank of India and the 1st accused paid an amount of
Rs.9,000/- in total towards purchasing 200 shares from Bank of India, on 29.3.1997 and the 1st accused sold away 100 shares and received
Rs.3,500/- during the year 1998 and the wife of the 1st accused got dividend of Rs.1,119/- on 15.7.2002.
Further, an amount of Rs.9,000/- invested in Bank of India was shown as an asset acquired by the 1st accused during the check period in Item No.5 of Statement 'B'. Whenever, the said amount of
Rs.9,000/- invested in bank of India is shown as asset acquired by the 1st accused during the check period, the amounts received by the 1st accused and his wife Rs. 4,619/- in total towards sale price of shares and dividend shall be considered and included in the income of the 1st accused during the check period.
In view of this, the amount of Rs.4,619/- is taken into account as income of the 1st accused received towards sale of shares and dividends from the Bank of India during the check period.
ii) Amount received towards dividends from N.F.C.L
(Nagarjuna Fertilizers and Chemicals Limited) during the
check period:
The evidence of P.W.53 Managing Director, Saftech
Systems Limited, Hyderabad and the contents of the letter Ex.P.61 positively reveal that they are the service provider of Nagarjuna
Fertilizers and Chemicals Limited and they paid an amount of
Rs.3,300/- to the 1st accused towards dividends for the period from 1993 to 2000.
The prosecution conceded and further asseverated in the
additional memorandum of arguments that the said amount may be
added in Statement 'C'.
In view of this, the amount of Rs.3,300/- is taken into account as income of the 1st accused received towards dividends from
Nagarjuna Fertilizers and Chemicals Limited during the check period.
iii)Income received and declared in Income Tax Returns during thecheck period:
The Advocate for the 1st accused contended that the 1st accused received a total sum of Rs.31,471.83 Ps under the heads shown in the income tax returns during the check period and the evidence of P.W.29, P.W.35, P.W.41 and P.W.65 and the contents of the documents Exs.P.41, P.42, P.50, P.83 and D.7 reveal the said amounts received by the 1st accused and that the said amounts Rs.31,471.83
Ps in total is liable to be considered and included in the income of the 1st accused during the check period.
The prosecution contended that the witnesses deposed about the entries in the income tax returns and the investigation officer evaluated the income tax returns at the time of calculation of income of the 1st accused during the check period and that the said amount is not liable to be included again in the income of the 1st accused during the check period.
The evidence of P.W.29 the then Dy. Commissioner of
Income Tax, Income Tax Department, Guntur and the contents of I.T.
Returns for the assessment year 2003-2004 Ex.P.41 reveal that he processed the income tax returns of the 1st accused for the assessment year 2003-04 and Rs.260/- towards income tax refund,
Rs.832/- towards dividend received from U.T.I, Rs.250/- towards dividend received from the Bank of India, Rs.2,150/- towards interest received on I.D.B.I.Bonds and Rs.1,560/- towards interest received on
I.C.S.I.Bonds in total Rs.5,052/- are processed as income from other sources.
The evidence of P.W.35 the then Dy. Commissioner of
Income Tax, Circle-2 and the contents of I.T.Returns for the assessment year 2000-2001 Ex.P.50 reveal that he processed the income tax returns of the 1st accused for the assessment year 2000- 01 and Rs.3,208/- towards interest/debentures from Reliance
Petroleum Limited and Videocon International Limited and Rs.1,300/- towards dividends on equity shares in Bank of India and U.T.I. Master
Shares in total Rs.4,508/- are processed as income from other sources.
The evidence of P.W.65 the then Income Tax officer,
Income Tax Department, Gudiwada and the contents of the Income
Tax Returns for the assessment year 1996-97 Ex.P.83 reveal that he processed the income tax returns of the 1st accused for the assessment year 1996-97 and Rs.5,391/- towards interest/debentures from the companies, Rs.280/- towards interest on debentures from the companies, in total Rs.5,671/- are processed as income from other sources.
As per the statement 'C', the said amounts of Rs.5,052-00 as per the evidence of P.W.29 and the contents of Ex.P.41, Rs. 4,508- 00 as per the evidence of P.W.35 and the contents of Ex.P.50 and
Rs.5,671-00 as per the evidence of P.W.65 and the contents of Ex.P.83, in total Rs.15,231-00 (Rs.5,052-00 + Rs.4,508-00 + Rs.5,671-00 =
Rs. 15,231-00) are not taken into account in the income of the 1st accused by the investigation officer P.W.70 during the check period.
Further, the 1st accused did not adduce cogent evidence and failed to prove and establish that the remaining amount of
Rs.16,240.83 out of the amount of Rs.31,471.83 is liable to be considered and included in his income towards the Income received and declared in Income Tax Returns during the check period. The said amount of Rs.16,240.83 which is claimed by the 1st accused to be included in his income as per the income tax returns, are verymuch considered and taken into account in his income as per the evidence of
P.W.29, P.W.35, P.W.41 and P.W.65 and the contents of the documents
Exs.P.41, P.42, P.50 and P.83.
In view of this, the amount of Rs. 15,231-00 is taken into account as income of the 1st accused received and declared in
Income Tax Returns during the check period.
In view of all the reasons, I feel that an amount of
Rs.4,619-00 towards sale of shares and dividends from the Bank of
India, Rs.3,300-00 towards dividends from Nagarjuna Fertilizers and chemicals Limited and Rs.15,231-00 towards received and declared in
Income Tax Returns in total Rs. 23,150-00 (Rs.4,619-00 + Rs.3,300- 00 + Rs.15,231-00 = Rs.23,150) is taken into account as known source of income of the 1st accused and as such the said amount of
Rs.23,150-00 is included in the income of the 1st accused during the check period.
82.Item No.9 (i) of Statement 'C':
As per the statement 'C', the 1st accused availed two loans from General Insurance Employees' Co-Op Thrift and Credit Society
Limited, Vijayawada during April, 2001 and December, 2002 and the total amount received was Rs.1,16,845-00.
The evidence of P.W.64 Senior Assistant General Insurance
Employees' Co-Op Thrift and Credit Society Limited, Vijayawada and the contents of the letters Ex.P.82 reveal that the 1st accused availed a loan of Rs.1 lakh from the society on 20.04.2001 and an amount of
Rs.89,345-00 was paid by way of cheque and again on 20.12.2002, the 1st accused availed a loan of Rs. 1 lakh from the society and an amount of Rs.27,500-00 was paid by way of cheque after deducting the balance of loan amount due by him.
In manner of that, the 1st accused availed a loan of
Rs.89,345-00 at the first time and a loan of Rs.27,500-00 in the second time and that Rs.1,16,845-00 in total was availed by him towards the said two loans.
The 1st accused did not dispute for the same. He further contended that the evidence of P.W.64 reveal that an amount of
Rs.1,580-00 was paid towards dividends for the financial year 2002- 2003, an amount of Rs.1,526-00 was paid towards dividends for the financial year 2003-2004 and an amount of Rs.1,621-00 was paid towards dividends for the year 2004 and that an amount of Rs.4,727- 00 in total received towards dividends is to be taken into account as his income during the check period.
83.The prosecution contended that the dividends declared are not the actual amount received by the government servant and it is adjusted towards his salary and then adjusted to the monthly installment to be paid towards the loan amount and that the said dividends are not liable to be taken into account in the income of the public servant and the net salary of the 1st accused is taken into account for calculation of his income during the check period and that there is no need to add the dividends to the income of the 1st accused during the check period.
The evidence of P.W.64 is reveal that they paid dividends in total Rs.4,727-00 to the 1st accused. His evidence is not reveal that the said amount is adjusted to the salary account of 1st accused. His evidence is also not reveal that the said amount was deducted from the loan installments. Further, the statement of the salary particulars
Exs.P.46 and P.49 are not reveal about adjustment of the dividends to the salary of the 1st accused or adjustment to the loan installments.
In manner of that, an amount of Rs.4,727-00 towards dividends and the loan amount of Rs.1,16,845-00 are to be calculated for the income from General Insurance Employees' Co-Op Thrift and
Credit Society Limited, Vijayawada and as such Item No.9 (i) income of the 1st accused from General Insurance Employees' Co-Op Thrift and Credit Society Limited, Vijayawada during the check period is Rs.
1,21,572-00 (Rs. 1,16,845-00 + Rs.4,727-00 = Rs.1,21,572-00) and the same is taken into account as income of the 1st accused during the check period.
84. Item No.9 (ii) of Statement 'C':
As per the statement 'C', the 1st accused availed a loan of
Rs.1,25,000-00 from General Insurance Employees' Co-Op. Thrift and
Credit Society Limited, Chennai.
The evidence of P.W.32 the then Secretary, General
Insurance Employees' Co-Op Thrift and Credit Society Limited, Chennai and the contents of the statements Ex.P.47 reveal that the 1st accused availed a loan of Rs.1,25,000-00 from the society on 30.01.2001. In manner of that, the 1st accused availed a loan of Rs.1,25,000-00 from the society on 30.01.2001.
The 1st accused did not dispute for the same. He further contended that the evidence of P.W.32 reveal that an amount of
Rs.3,827-00 was paid towards interest on deposit and that the said amount of Rs.3,827-00 received towards interest on deposit is to be taken into account as his income during the check period.
The prosecution contended that the interest declared on deposit is not the actual amount received by the government servant and it is adjusted towards his salary and then adjusted to the monthly installment to be paid towards the loan amount and that the said interest is not liable to be taken into account in the income of the public servant and the net salary of the 1st accused is taken into account for calculation of his income during the check period and that there is no necessity to add the interest to the income of the 1st accused during the check period.
The evidence of P.W.32 is reveal that they paid Rs.3,827/- to the 1st accused towards interest on deposit. His evidence is not reveal that the said amount is adjusted to his salary account. His evidence is also not reveal that the said amount was deducted from the loan installments. Further, the statement of the salary particulars
Exs.P.46 and P.49 are not reveal about adjustment of the interest on deposit to the salary of the 1st accused or adjustment to the loan installments.
In manner of that, an amount of Rs.3,827-00 towards interest on deposit and the loan amount of Rs.1,25,000-00 are to be calculated for the income from General Insurance Employees' Co-Op
Thrift and Credit Society Limited, Chennai and as such Item No.9 (ii) income of the 1st accused from General Insurance Employees' Co-Op
Thrift and Credit Society Limited, Chennai during the check period is
Rs. 1,28,827-00 (Rs. 1,25,000-00 + Rs.3,827-00 = Rs.1,28,827-00) and the same is taken into account as income of the 1st accused during the check period.
85.Item No.10 of Statement 'C':
As per the statement 'C', the 1st accused received income
Rs.14,419-00 in total towards interest from S.B. Accounts in i) Bank of
Baroda, Gudiwada; ii) Canara Bank, Chandramoulinagar branch,
Guntur; iii) Bank of India, Kothapet branch, Guntur; iv) Bank of India,
Kothapet branch, Guntur; v) Andhra Bank, ring road branch,
Vijayawada and vi) from N.S.S.Account in Head Post Office, Ongole.
The 1st accused acknowledged and did not dispute for receiving an amount of Rs. 14,419-00 in total, towards interest in the above said accounts and as such the said amount Rs.14,419/- is taken into account as income of the 1st accused during the check period.
86.Item No.11 of Statement 'C':
As per the statement 'C', the 1st accused received
Rs.2,58,900-00 in total, towards loans from provident fund account in
Oriental Insurance Company Limited.
The 1st accused acknowledged and did not dispute for receiving an amount of Rs. 2,58,900-00 in total, towards loans from provident fund account in Oriental Insurance Company Limited and as such the said amount Rs.2,58,900/- is taken into account as income of the 1st accused during the check period.
87.Item No.12 of Statement 'C':
As per the statement 'C', the income of the 1st accused towards house rents during the period from 1996-97 to 2005-2006 was Rs.4,81,000-00.
The 1st accused is not disputed and further confirmed that his income towards house rents for the period from 1996-97 to 2005- 2006 was Rs.4,81,000-00 and as such the said amount Rs.4,81,000- 00 is taken into account as income of the 1st accused towards house rents during the check period.
88.Item No.13 of Statement 'C':
As per the statement 'C', the income of the 1st accused towards agriculture, during the period from 1993-94 to 2004-2005 was Rs.1,89,600-00.
The 1st accused is not disputed and further confirmed that his income towards agriculture for the period from 1993-94 to 2004- 2005 was Rs.1,89,600-00 and as such the said amount of
Rs.1,89,600-00 is taken into account as income of the 1st accused towards agriculture, during the check period.
89.Item No.14 of Statement 'C':
As per the statement 'C', the wage arrears received by the 1st accused for the assessment year 2001-02 was Rs.99,704-00.
The 1st accused contended that the investigation officer
P.W.70 was calculated only the wage arrears paid in the year 2001-02 and he did not taken into account the payment of wage arrears
Rs.1,40,707.05 Ps paid for the period from 1.7.1992 to 30.06.2000 and the statement of payment of salary arrears Ex.X.2 which was marked through D.W.7 is reveal about net payment of Rs.1,40,707.05
Ps towards salary arrears for the period from 1.7.1992 to 30.06.2000 and that the same is liable to be taken into account as his income during the check period.
The prosecution contended that the arrears of salary paid to the 1st accused are included in the gross salary of the 1st accused and the investigation officer has taken into account of the arrears of salary at the time of calculation of the net salary of the 1st accused and the statement of Ex.X.2 is component of the document Ex.P.49 and that the contentions of the 1st accused as regards to the arrears of salary in the statement of Ex.X.2 are untenable and indefensible.
The investigation officer P.W.70 shown an amount of
Rs.99,704-00 as the wage arrears received by the 1st accused for the assessment year 2001-02. Further, the statement of payment of salary arrears Ex.X.2 which was marked through D.W.7 is reveal that an amount of Rs.1,40,707.05 Ps was paid to the 1st accused towards net payment of salary arrears for the period from 1.7.1992 to 30.06.2000, during the check period.
The statements of salary particulars Exs.P.12, P.46 and
P.49 are not containing the payment of salary arrears for the period from 1.7.1992 to 30.6.2000. Further, if the salary arrears paid to the 1st accused are containing in the salary particulars from which gross salary and net salary calculated, there is no need or prerequisite on the part of investigation officer to show an amount of Rs.99,704-00 as the wage arrears received by the 1st accused for the assessment year 2001-02, severally.
In view of all this, an amount of Rs.1,40,707.05 Ps is liable to be calculated for the net payment of arrears of salary and as such
Item No.14 income of the 1st accused received towards net payment of arrears of salary during the check period is Rs. 1,40,707.05and the same is taken into account as income of the 1st accused during the check period.
90.Item No.16 of Statement 'C':
As per the statement 'C', the total amount withdrawn from the N.S.S-87 account in Head Post office, Ongole by the 1st accused was Rs.42,000-00.
The 1st accused is not disputed and further confirmed that the total amount withdrawn from N.S.S.-87 account was Rs.42,000-00 and as such the said amount of Rs.42,000-00 is taken into account as income of the 1st accused during the check period.
91.Item No.17 of Statement 'C':
As per the statement 'C', the 1st accused sold 200 shares of Essar Steel and received an amount of Rs.23,000-00 in the year 1994.
The 1st accused acknowledged and not disputed about receiving of Rs.23,000-00 towards sale price for the shares of Essar
Steel.
Further, Advocate for the 1st accused contended that an amount Rs.6,924.98 Ps received towards dividend and interest and the evidence of P.W.63 and the contents of Ex.P.81 reveal the same and that the said amount of Rs.6,924.98 Ps is to be taken into account in the income from the sale of shares and dividends received by the 1st accused and his wife during the check period.
The evidence of P.W.63 the then General manager, Data
Software Research Company Private Limited, Chennai and the contents of the letter pertaining to the particulars of share holdings in the name of 1st accused and his wife B.Jyothi Vimala Ex.P.81 reveal that the 1st accused received an amount Rs.6,924.98 Ps towards dividend and interest on the Essar steel shares.
In order that, the said amount of Rs. 6,924.98 Ps received by the 1st accused towards dividend and interest on the Essar steel shares is to be taken into account towards income from the sale of shares and dividends on Essar steel shares. Further, the prosecution conceded and asserted in the additional memorandum of arguments that the amount of Rs.6,924.98 Ps claimed by the 1st accused as per the documentary evidence may be treated as income.
In view of this, the 1st accused received an amount of
Rs.6,924.98 Ps towards dividends and further received an amount of
Rs. 23,000-00 towards sale price for the shares in Essar steels and as such Item No.17 Income received from the sale of shares and dividends by the 1st accused during the check period is
Rs. 29,925.00 (Rs.23,000-00 + Rs.6,924.98 = Rs. 29,925.00 Ps) and the same is taken into account as income of the 1st accused during the check period.
92.Additional Income:
The Advocate for the 1st accused contended that the 1st accused received an amount of Rs.1,37,677-00 in total, towards
Transfer Grant (Disturbance Allowance) and Bonus (share in profits) during the check period and the evidence of P.W.34, D.W.7 and the contents of statements Exs.X2, X.4 are reveal the same and the investigation officer P.W.70 deliberately did not take into account of the said amount in the income of the 1st accused during the check period and that the said amount of Rs.1,37,677/- is susceptible to be taken into account in the income of the 1st accused during the check period.
The prosecution contended that the transfer grant and bonus paid to the 1st accused are included in the gross salary of the 1st accused and the investigation officer has taken into account of the transfer grant and bonus at the time of calculation of the net salary of the 1st accused and the statements of Exs.X.2 to X.4 are components of the document Ex.P.49 and that the contentions of the 1st accused as regards to the transfer grant and bonus in the statements of
Exs.X.2 to X.4 are untenable and indefensible.
The investigation officer P.W.70 did not shown any amount towards transfer grant and bonus received by the 1st accused during the check period. Further, the statement of salary earnings of the 1st accused for the period from July, 2001 to February, 2003 Ex.X.3 which was marked through D.W.7 is reveal that an amount of Rs.17,600-00 was paid towards transfer grant under the voucher Dt.3.9.2001 and an amount of Rs.18,435-00 was paid towards transfer grant under the voucher Dt.28.2.2003. The evidence of P.W.34 the then Chief
Executive Officer, Oriental Insurance Company Limited, Katmund,
Nepal, reveal that transit accommodation was paid for a period of 15 days @ Rs.2000-00 per day.
Further, the statement of salary particulars for the period from July, 2004 to June, 2005 in Ex.X.4 reveal that an amount of
Rs.1,44,242-00 was paid towards bonus. The statement of salary particulars for the period July, 2005 to November, 2005 in Ex.X.4 also reveal that an amount of Rs.1,52,157-00 was paid towards bonus.
The statements in Ex.X.3 are prepared by the Manager and counter signed by the Regional Manager and containing the certificate that the statement is prepared on computer on verifying the manual records in the Regional Office and the statement contains true and correct entries. The statements Ex.X.4 are prepared by the Administrative officer and counter signed by the Chief Executive officer and containing the certificate that the statement is prepared on computer on verifying the manual records in the Regional Office and the statement contains true and correct entries. Further, the 1st accused claimed only
Rs.71,642-00 towards bonus out of the bonus amount of Rs.1,44,242- 00 paid to him during the said period. The 1st accused asserted that only an amount of Rs.71,642-00 out of Rs.1,44,242.00 was received on 31.03.2004 towards bonus.
Ex.P.12 the particulars of the salary of the 1st accused during the period from September, 1993 to June, 2001, Ex.P.46 the particulars of the salary of the 1st accused during the period from July, 2001 to February, 2003 and Ex.P.49 the particulars of the salary of the 1st accused during the period from March, 2003 to July, 2004 are not containing the amounts paid towards transfer grant and bonus.
Whenever the said statements are not containing the amounts paid towards transfer grant and bonus, it is not reasonable to consider the contentions of the prosecution that the investigation officer taken into account the amount paid towards transfer grant and bonus at the time of calculation of gross salary and net salary of the 1st accused as per the statements of Exs.P.12, P.46 and P.49.
Generally, transfer grant will be paid to the public servants besides the transit allowances i.e., actual fares for self and family for journey and cost of transportation of personal effects in view of transfers and that the amounts paid towards transfer grant are to be taken into account in the income of the public servants. Further, the bonus will be paid to the public servants in addition to the salaries and that the amounts paid towards bonus are also liable to be taken into account in the income of the public servants.
In view of all this, an amount of Rs.17,600-00 was paid on 03.09.2001 and Rs.18,435-00 was paid on 28.02.2003 towards transfer grant as per the statement Ex.X3 and Rs.30,000-00 was paid towards transit accommodation as per the evidence of P.W.34 and the claim of Rs.71,642-00 out of the bonus amount was paid as per the statement Ex.X.4, and that the said amount of Rs. 1,37,677-00 in total, (Rs.17,600-00 + Rs.18,435-00 + Rs.30,000-00 + Rs.71,642 =
Rs.1,37,677-00) is liable to be taken into account in the income of the 1st accused during the check period and as such income of the 1st accused received towards transfer grant and bonus during the check period is Rs. 1,37,677-00and the same is taken into account as income of the 1st accused during the check period.
93.The 1st accused failed to prove and establish that he received an amount of Rs.50,000-00 from his brother D.W.4 towards share in Hindu undivided family property. The evidence of D.W.4 is inconsistent and not reveal about payment of Rs.50,000-00 to the 1st accused towards his share in Hindu undivided family property. When the accused claimed income from other source not known to the prosecution, he has to prove the same. The 1st accused did not adduce substantial evidence to prove the same. In manner of that, the said amount of Rs.50,000-00 is not liable to be taken into account as his income during the check period.
94. The particulars of the total income of the 1st accused during the check period from 01.09.1993 to 31.07.2004 from all known source comprehensively are:
Statement - C
Sl. No. Details of income Income as Income as Income per I.O. per 1st concluded Rs. accused and arrived Rs. at by the court Rs. 1 (i)Net salary during the period5,82,7716,51,3126,06,533 from 01.09.1993 to June, 2001 1 (ii) Net salary during the period1,08,6301,35,6031,08,630 from July, 2001 to February, 2003 1 (iii)Net salary during the period2,70,2943,09,6443,09,644 from March, 2003 to July, 2004 2House building loan from5,25,0005,25,0005,25,000 Oriental Insurance Corporation Limited 3 (i)Loan from L.I.C.of India, Kochi51,69490,04090,040 3 (ii)Maturity amount received1,25,6061,40,6061,40,606 from L.I.C. Policies during the check period 5 Maturity amounts on U.L.I.P.61,50997,50965,510 Policies 7Advances and other money90,3201,02,5001,00,820 received from the Oriental Insurance Company Limited during the check period 8Income received towards9,63525,56225,562 dividends and sale price of shares 8 (A)Awaiting income from the sale of shares pertaining to more than seven (7) companies
Income in total, towards -NIL-4143123,150
(i) sale of shares and dividends from the Bank of India.
(ii) dividends from Nagarjuna Fertilizersandchemicals Limited and;
(iii) received and declared in Income Tax Returns.
9 (i)IncomefromGeneral1,16,8451,21,5721,21,572 Insurance Employees' Co-Op Thrift and Credit Society Limited, Vijayawada during the check period 9 (ii)IncomefromGeneral1,25,0001,28,8271,28,827 Insurance Employees' Co-Op Thrift and Credit Society
Limited, Chennai during the check period.
10Incometowardsinterest14,41914,41914,419 credited in the bank accounts and postal account 11Loans from provident fund2,58,9002,58,9002,58,900 account in Oriental Insurance Company Limited 12House rents for the period4,81,0004,81,0004,81,000 from 1996-97 to 2005-2006 13Income towards agriculture for1,89,6001,89,6001,89,600 the period from 1993-94 to 2004-2005 14Income towards net payment99,7041,40,7071,40,707 of arrears of salary during the check period 16Amountwithdrawnfrom42,00042,00042,000 N.S.S.-87account, H.P.O.Ongole.
17 Income received from the23,00029,92529,925 dividends and sale of shares of Essar steels during the check period 18Additional Income:- NIL - 1,87,6771,37,677 Income received towards transfer grant and bonus during the check period
TOTAL31,75,92737,13,83435,40,122
In view of all these reasons, I feel that the total income of the 1st accused during the check period from 01.09.1993 to 31.07.2004 from all known source is Rs.35,40,122-00.
This point is answered accordingly.
95.Point No.6:
Whether the total expenditure incurred to the 1st accused
during the check period from 01.09.1993 to 31.07.2004 is
Rs.18,88,743/- as shown in the statement 'D' ?
P.W.70 the then Inspector of Police, CBI, Visakhapatnam shown the total expenditure incurred to the 1st accused during the check period in the Statement 'D' in the final report. As per the statement 'D', the total expenditure incurred to the 1st accused was
Rs.18,88,743/- during the check period i.e., from 01.09.1993 to 31.07.2004. The particulars of the total expenditure shown in the statement 'D' are:
Sl. Amount
Details of expenditure
No in Rs.
1. Loss suffered in vehicle purchase and sale during the11,904 check period:- Expenditure incurred to purchase TVS Scooty on 12.06.2000 from Pioneer Automobiles, Station Road, Guntur
2. Bank Loan repayments:-14,049
Loan repayment to Canara Bank:-23,40028,845 Amount repaid to Canara Bank, CM Nagar branch, Guntur along with the interest during the check period vide loan No.Dual 2/99. Loan repayment to Bank of India:-30,00034,605 Amount repaid to Bank of India, Kothapeta branch, Guntur vide loan no.330008. Loan repayment of Rs.30000 + Interest amount of Rs.4605/-. Loan repayment to Bank of17,10021,099 Baroda:- Amount repaid to Bank of Baroda, Gudivada towards TV loan repayment vide loan No.DL3/10. Loan repayment amount of Rs.17100/- + Interest of amount Rs. 3999/- for TV.
TOTAL 70,500 84,549
3. Interest and processing charges paid to M/s.11,289
Associates India Finances Private Ltd., Guntur
In the repayment of loan of Rs.30,000 taken8,654 from Associate India Financial Services Pvt. Ltd. In the repayment of vehicle loan of2,635 Rs.27,330/- taken from Associate India Financial Services Pvt. Ltd. Photo Copy of IT computation of income sheets for AY-2002-03 interest repayment on loan taken from Associate India Financial Services Pvt. Ltd. (4 sheets)
TOTAL 11,289
4. Late fee paid in response to call money statements issued330 by M/s. Karvy Computer Share Pvt. Ltd.
5. Registration and vehicle tax of Hero Honda bearing3,972 registration No.AP07 K 2232.
6. LIC Premia paid over and above the salary2,83,661 deductions towards premia:-
Policy No. Name of L.A. Total Premia Remarks
Paid (premia * Install- ments) 46964968BSV Kumar13,997.70135.90*103 670680821BSV Kumar1,28,41411674*11 670682674BSV Kumar32,2632933*11 670229062BSV Kumar76,8004800*16 670682662B.J.Vimala30,9102810*11 2,82,384.70 Besides Rs.1276/- was paid as interest on policy loans. Total payment to LIC = Rs. 2,82,384 + Rs.1276/- = Rs.2,83,661/-
7. Educational expenditure of son and daughter of the1,74,093 accused during the check period:-
Fees paid to Sri Ramakrishna EM High6,075 School (Master Ranjith Kumar, son and Ms. Sara Soumya, daughter) Fees paid to Montessori E.M.High School,2,418 Guidvada for the study of VI to IX class of B.Soumya during 1994 to 1998 and for the education of Mr. Ranjit Kumar from VIII to X class during 1994-1997. Fees paid to Bhasyam Public School for the3,300 study of X class during 1998-1999 by Kum. Sara Soumya, D/o. Vasanth kumar Fees paid to Vidwan Residential College for9,450 the study of Jr. Inter of Ms. Sara Soumya during 1999-2000
Fees paid to Vijnan Co-op Jr. College,49,000 Guntur for the study of Intermediate by Sri Ranjit Kumar S/o Vasanth Kumar during 1997-99.
Tution fee paid to Chaitanya Engineering12,000 College, Guntur for the education of Ms. Sara Soumya during the year 200-2001
Fees paid to RVR Jr. College of Engineering,29,740 Chodavaram, Guntur for the Engineering education of Sri Ranjit Kumar during 1999- 2002.
Fee paid to Koneru Lakshmaiah Engg.10,000 College for the third and fourth year of B.Tech of Mr.Ranjit Kumar.
Expenditure towards Engineering education52,110 of Ms. Sara Soumya and fees paid to JNTU, Hyderabad
TOTAL 1,74,093
8. Property Tax:- paid to Municipal Corporation, Vijayawada43,118 along with House Tax and Sewage Tax paid during the check period.
9. Compounding fee:- Compound Fee paid vide Receipt16,840 No.52727, 22-12-99 of Vijayawada Municipal Corporation 10Expenditure towards non life insurance polices:-4,190 . House hold articles insurance:3,238 Letter dated 12.07.2006 and dated 31.08.2006 and receipt No.3108049 dated01.03.2004 along with Xerox copies of HHI policies (M.No.304/12- 1 to 8 & 303/1 to 3) (13 Sheets) Annual premium:538 Insurance premium receipt No.194602 dated 15.03.2001 of OIC Ltd. Guntur (M.No.4/249/5 page No.30) (1 sheet) Annual Premium:414 Receipt memo dated 20.09.2005 along with certified copies of policies in respect of T.V.S.Scooty (M.No.5/417/1) Relevant Policy No. 585/2001 (6sheets)
Total 4,190
11Telephone charges:74,384 . Telephone bills of Ph. No.2545486:62,104
Attested telephone bill details for the period 01.07.1998 to 11.07.2001 and from 11.09.2001to30.06.2004etc. (Rs.26639+35465) and not reimbursed by the department (OICL). Recovery of excess telephone bill recovered2,078 from the accused vide D.O.Collection No.2520 Dt.15.9.97 by OICL, Gudivada office. Recovery of excess telephone bill recovered6,002 from the accused by OICL Guntur office during the period 1998-2001. Cost of cell phone instrument and cellphone4,200 connection charges
TOTAL 74,384
12 Locker and Bank Charges:-2,664 . Charges paid for the Locker at Bank of260 Baroda, Gudivada Charges paid for the Locker at Canara Bank,825 CM Nagar, Guntur Charges paid for the Locker at Andhra Bank,1,415 Ring Road branch, Vijayawada Bank charges paid towards collection of164 cheques 2,664 13Income Tax Payments over and above TDS and other36,762 .payments as mentioned in the IT Returns:
Assessment Year Tax paid
1995-199612,437 1196-19975,436 1997-19986,263 1999-20001,124 2000-20018,068 2001-20023,434
Total 36,762
14Net Amount paid towards chit subscription to36,238 .Margadarsi:-
Chit No. Amount paid by Income recd. accused from Margadarsi LT 133 GB 2140,61026,750 LT 59 MB 4280,08081,010 LT 013 MNT-4179,54077,190 LT-005 BT-461,89,0081,68,050
Total (Rs.) 3,89,238 3,53,000
15Donations made:-10,250 . Donation paid vide receipt No.207 dated10,000 09.02.99 of Association for Rural Economical and Education Development, Guntur along with other documents available in Income Tax file No.SS-852 (AY – 99-2000) Donation paid vide Cheque of Rs.250/- to250 The Leprosy Mission Trust of India on 05.12.96. Total 10,250 16House rent payment:-49,590 . House rent paid for the house located at5,580 G-6, Viswambhara Apartments, CM Nagar, Guntur:- Lease agreement dated 30.09.1999. Rent contribution of Sri B.S.V.Kumar from Sept., 1999 to March, 2000 (Rs.465X12=Rs.5580)
House Rent paid during the rest of the44,010 period:- For 34 months during July, 1999 to May, 2002 the rent paid to K.Jhansi Rani during July, 1999 to June, 2000, he paid a rent of Rs.3,200/- and for the rest of the period it was Rs.3,400/-. Hence the rent paid by the accused after deducting the rent reimbursed bythecompany12X(3200- 2035)+22X(3400-2035) Total 49,590 17Surgery towards flap surgery and root canal treatment8,000 .during November and December, 2000 18Credit card expenditure12,805 .
19Domestic expenditure: 1/3rdof gross salary of .Rs.29,33,729/- received during the check period9,77,812 20Land tax paid by the accused towards the agricultural land4,172 .owned in the name of wife of the accused.
21Entrance fee charges for Thrift Society505 .
22Cost of AC unit purchased by the accused and installed in40,000 .Maruti Zen Car provided by the company 23Hero Honda Motor Cycle Fuel Expenditure: 40852 Kms21,000 .@65 KMPL and Rs.35 per litre: (40852/65)X35 51,115 24Details of expenditure incurred by the accused towards .miscellaneous insurance items: Receipts/bills/vouchers seized from the residence of the accused during searches:
Receipt No. (Vide)DateDetailsofAmount Expenditure(in Rs.) GRE Report of scores2003GRE Exam5,000 M/s. Keseas Sky30.9.2001Magnetic Ear900 Shoppy Receipt No.60Rings Insurance Premium4.7.2003Premium for625 Receipt of OIC (forHero Honda 2004)M.C Insurance Premium6.7.2004-do-694 Receipt of OIC (for 2005) Kanakadurga Infotech25.2.2004Computer1,000 Receipt No.55Item -do- Rect. No. 8225.5.2004-do-1,000 M/s. Vijaya Bhaskara19.10.02GasFilling2,400 EnterprisesBilletc. for AC No.308 M/s.AutoGlym25.07.03Towards375 Receipt No.3222Motor Cycle parts
M/s. Sriram Motor20.04.04-do-164 Cycle Receipt No.62 Insurance Premium15.3.2001Premium for538 Receipt of IOC (forHero Honda 2001)M.C M/s. Sai Rajendra20.2.2004Purchase of544 Jewellersgold item Navratna Gold RingTowards8,500 receiptmakingof Gold Ring M/s. Shree Ridhi Sidhi17.6.2004Towards29,375 JewellersReceiptpurchase of No.9499Gold Bangle (inNepal Currency it is Rs.47,000/-)
Total 51,115 Total 18,88,74 3
96.Item No.1 of Statement 'D':
It is contended by the advocate for the 1st accused that the prosecution failed to prove that the 1st accused took a loan of
Rs.27,330-00 from Associate Indian Financial Services Private Limited and purchased TVS Scooty in the name of his wife B.Jyothi Vimala for
Rs.27,330-00 and he sustained loss of Rs.11,904-00 in view of sold away the said TVS Scooty for Rs.18,000-00 and there is no documentary or oral evidence to prove that the said TVS Scooty was purchased for Rs.27,330-00 and that the said amount of Rs.11,904-00 is not liable to be taken into account in the expenditure incurred during the check period.
The evidence of P.W.68 the then Branch manager of City
Finance Branch, Guntur reveal that the statement of accounts relating to TVS Moped vehicle loan and personal loan of the wife of the 1st accused B.Jyothi Vimala were afforded to the CBI under a covering letter Dt.18.4.2007 and Rs.27,330-00 was availed towards moped loan on 15.6.2000. Further, her evidence is reveal that she has no personal knowledge of the said loans and that she deposed evidence as per the records.
Ex.P.25 is the property returns submitted by the 1st accused. The 1st accused has declared and asserted in the statement of assets other than immovable property containing his signature in
Ex.P.25 that the TVS scooty was purchased in the name of his wife for
Rs.27,000-00 and he purchased the said scooty with the personal savings Rs.2,000-00 and the loan amount of Rs.25,000-00 availed from Associate Indian Financial Service Private Limited. In order that, the 1st accused purchased the TVS Scooty for Rs.27,000-00 as declared by him in the statement of assets other than immovable properties and liabilities Dt.31.3.2001.
Further, the evidence of P.W.20 reveal that she purchased
TVS Scooty bearing No.AP 72-3816 from the wife of the 1st accused
B.Jyothi Vimala for Rs.18,000-00 in the year 2001. The 1st accused did not get cross examine her.
In view of this, the 1st accused purchased TVS scooty bearing No. AP 72-3816 in the name of his wife for Rs.27,000-00 and sold away the said TVS Scooty for Rs.18,000-00 to P.W.20 during the check period and that he sustained loss of Rs.9,000-00 and as such the said amount of Rs.9,000-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
97.Item No.2 of Statement 'D':
The 1st accused as regards the item No.2 (i) (ii) & (iii) of
Statement 'D' Bank loan repayments, contended that the evidence of
P.W.8, P.W.9 and P.W.55 and the statement of accounts Exs.P.10, P.11 and P.64 are not liable to be considered for bank loan repayments and the said bank statements Exs.P.10, P.11 and P.64 are not containing the certificates to be required under Banker's Book Evidence Act and
U/Sec.65-B of the Indian Evidence Act and the same are inadmissible in evidence.
It is contended by the prosecution that the 1st accused did not dispute for calculation of the interest credited in the bank accounts towards his income during the check period as per the contents of the said statement of bank accounts and he claimed the said interest towards his income during the check period and that he is precluded to contend that the said bank statements are not liable to be considered to determine the bank loan repayments.
The evidence of the then Officer, Canara bank,
Chandramoulinagar, Guntur P.W.8 and the contents of statement of the loan account Ex.P.10 standing in the name of the 1st accused reveal that an amount of Rs.28,845.00 in total paid towards discharge the loan amount. Further, the statement of the loan account Ex.P.10 is 'ledger extract in penning' and it is also containing certificate under
Banker's Books Evidence Act and the branch manager certified that 't he loan statement is true copy of ledger extract for loan account 2/99 which is being done in regular course of business'.
The evidence of the then Dy. Chief Manager of Bank of
India, Guntur P.W.55 and the contents of statement of loan account
Ex.P.64 reveal that an amount of Rs.34,605.00 in total paid towards discharge the loan amount.
98. The evidence of the then Branch manager, Bank of
Baroda, Gudiwada P.W.9 and the contents of statement of loan account
Ex.P.11 reveal that an amount of Rs.21,099.00 in total paid towards discharge the loan amount. Further, the statement of the loan account Ex.P.11 is copy of the 'ledger extract in penning' and it is also containing certificate under Banker's Books Evidence Act and the branch manager certified that 't he loan statement is true copy of
ledger extract for loan account which is being done in regular course
of business'.
An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements U/Sec.65-B of
Indian Evidence Act are satisfied.The evidence of P.W.8, P.W.9 and
P.W.55 reveal the amounts paid by the 1st accused towards discharge the loan amount availed by them respectively. The 1st accused or his family members are not denied that the said loans are not availed by them and they are not relating to them. The 1st accused did not adduce evidence to prove about the amounts paid by him towards discharge the said loans availed by him. Further, he claimed interest credited in his S.B. Accounts under the bank statements which are not containing the certificates U/Sec. 65-B of Indian Evidence Act towards his income during the check period. In order that, the evidence of
P.W.8, P.W.9 and P.W.55 is to be considered to determine the bank loan repayments made by the 1st accused. Further, the statement of loan accounts Exs.P.10 and P.11 are the ledger extracts in penning and they are containing the certificates under the Banker's Books Evidence Act.
In view of all these reasons, the evidence of P.W.8 reveal that an amount of Rs.28,845.00 in total paid towards discharge the loan amount availed in Canara bank, Chandramoulinagar, Guntur and the evidence of P.W.55 reveal that an amount of Rs.34,605.00 in total paid towards discharge the loan amount availed in Bank of India,
Kothapet branch, Guntur and the evidence of P.W.9 reveal that an amount of Rs.21,099.00 in total paid towards discharge the loan amount availed in Bank of India, Gudiwada branch and the same are liable to be considered and taken into account for the bank loan repayments made by the 1st accused and that the total amount paid by the 1st accused during the check period after deducting the loan amounts is Rs.14,049-00 and as such Item No.2 (i) (ii) & (iii) of statement 'D' Bank loan repayments is Rs.14,049-00 in total and the said amount is taken into account towards expenditure incurred to the 1st accused during the check period.
99.Item No.3 of Statement 'D': The 1st accused contended that the prosecution failed to prove that he paid an amount of Rs.11,289-00 towards processing charges and repayment of the loans availed in M/s. Associates India
Finances Private Limited, Guntur and the oral evidence of P.W.68 is not liable to be considered without documentary proof and that the said amount is not to be taken into account towards expenditure incurred to him during the check period.
The evidence of P.W.68 the then Branch manager of City
Finance Branch, Guntur reveal that the statement of accounts relating to TVS Moped vehicle loan and personal loan of the wife of the 1st accused B.Jyothi Vimala were afforded to the CBI under a covering letter Dt.18.4.2007 and Rs.27,330-00 was availed towards moped loan on 15.6.2000 and the said loan amount with processing fees and interest came to Rs.37,315-00 and an amount of Rs.30,000-00 was availed towards personal loan and the said loan amount with interest and other charges came to Rs.49,821-00. Further, her evidence is reveal that she has no personal knowledge of the said loans and that she has deposed evidence as per the records.
Ex.P.25 is the property returns submitted by the 1st accused. The 1st accused has declared and asserted in the statement of assets other than immovable property containing his signature in
Ex.P.25 that he purchased TVS scooty in the name of his wife, with the personal savings Rs.2,000-00 and the loan amount of Rs.25,000-00 availed from Associate Indian Financial Service Private Limited. He also asserted about availment of personal loan from the Associate
Indian Financial Service Private Limited.
Whenever, the evidence of P.W.68 reveal that the 1st accused availed a vehicle loan and personal loan in the City finance branch, Guntur and discharged the said loans with interest and whenever the 1st accused asserted and declared in the property returns Ex.P.25 about availment of the said loans, the burden lies upon the 1st accused to prove that how much amount he paid towards discharge the said loan amounts. The 1st accused did not adduce either oral or documentary evidence to prove how much amount paid towards discharge the said loans. Whenever he failed to prove the same, the evidence of P.W.68 is liable to be considered since, she deposed evidence as per the records maintained in the branch office.
Once the prosecution brought about the payments made by the 1st accused towards discharge the loan amounts, the burden shifts to the accused to establish what the prosecution alleged is not proper and acceptable.
In view of this, the 1st accused paid an amount of
Rs.11,289-00 towards discharge the loans availed from M/s.
Associates India Finances Private Limited, Guntur during the check period and as such the said amount of Rs.11,289-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
100. Item No.4 & 5 of Statement 'D':
As per the statement 'D', the 1st accused spent an amount of Rs.330-00 towards late fee for the call money statements issued by M/s.Karvey Computer share Private Limited and spent an amount of
Rs.3,972-00 towards registration and vehicle tax of Hero Honda bearing Reg. No.AP 07 K 2232.
The 1st accused as regards Item Nos. 4 and 5, contended that he did not spent those amounts as alleged by the prosecution and the prosecution did not adduce either oral or documentary evidence to prove the same and that the said amounts are to be excluded out of the expenditure shown in the statement 'D'.
The evidence of P.W.3 General Manager, Karvey Computer
Shares is not reveal that the 1st accused spent an amount of Rs.330- 00 towards late fee for the call money statements issued by
M/s.Karvey Computer share Private Limited during the check period.
Further, no witness is examined to prove that the 1st accused spent an amount of Rs.3,972-00 towards registration and vehicle tax of Hero
Honda bearing Reg. No.AP 07 K 2232 during the check period. The
prosecution failed to prove and establish that the accused spent the said amounts of Rs.330-00 and Rs.3,972-00 during the check period.
In view of this, the said amounts of Rs.330-00 (Item
No.4) and Rs.3,972-00 (Item No.5) are not liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amounts are forbidden from the calculation of expenditure in the statement 'D'.
101. Item No.6 of Statement 'D':
As per the statement 'D', an amount of Rs.2,83,661-00 in total was paid by the 1st accused towards L.I.C. premium over and above the salary deductions.
The 1st accused contended that premium amounts and installment loan amounts were paid directly from his salary and the statement of salary particulars disclose about the deductions towards
L.I.C. premium amounts and loan installments and his net salary is taken into consideration as the income during the check period and that the deductions which are made in the gross salary towards premium and loan installments are not to be calculated again towards expenditure during the check period and the evidence of P.W.12 and
P.W.67 reveal the same and that the said amounts are not liable to be included in the expenditure during the check period shown in the statement 'D'.
The prosecution contended that the evidence of P.W.67 is not relating to the said policies shown in the statement and that the said payments towards L.I.C premium and loan installments is to be taken into account in the expenditure incurred to the 1st accused during the check period.
The evidence of P.W.12, the then Branch manager, L.I.C. of
India, Kothapet branch, Guntur consistently reveal that the L.I.C.
Policies bearing Nos. i) 46964968; ii) 670680821; iii) 670682674 and; iv) 670229062 are in the name of the 1st accused and the L.I.C. Policy bearing No. 670682662 is in the name of wife of the 1st accused
B.J.Vimala. The said L.I.C. Policies and the L.I.C. Policies shown in
Item No.6 of statement 'D' are one and the same. Further, P.W.12 has stated in the cross examination that the deductions of salary reflects in Ex.P.14 are the payments made to the policy of the wife of the 1st accused. He also stated in the cross examiantion that the premium amounts for the policy bearing No. 46964968 are used to deduct from the salary of the 1st accused and remitted to the L.I.C directly by the department of the 1st accused.
P.W.67 the then Administrative Officer, Life Insurance
Corporation of India, Kalur branch, Kochi has stated in the cross examination that premium to the L.I.C. policies and loan repayment installments were deducted and paid to L.I.C. directly out of the salary of the 1st accused.
Ex.P.12 the statements of salary particulars of the 1st accused and the statements of salary particulars of the 1st accused
Exs.X.2, X3 and X.4 positively reveal about deduction and payment of
L.I.C. premium and loan installments directly, out of the salary.
Whenever the net salary of the 1st accused is taken into consideration as the income during the check period and whenever the deductions made in the gross salary towards premium and loan installments are not taken into account as income of the 1st accused during the check period, it is not lawful and justifiable to consider and enumerate once again the amounts paid towards L.I.C. premiums and loan installments, out of the gross salary of the 1st accused as expenditure incurred to the 1st accused during the check period.
In view of this, the said amount of Rs.2,83,661-00 paid towards L.I.C. premiums and loan installments directly out of the gross salary of the 1st accused is not liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amount of Rs.2,83,661.00 is disallowed and precluded from the calculation of expenditure in the statement 'D'.
102. Item No.7 of Statement 'D':
As per the statement 'D', the 1st accused spent an amount of Rs. 1,74,093.00 in total, towards educational expenses of his son
Ranjith Kumar and his daughter souwmya during the check period.
The 1st accused did not dispute about the expenditure shown in Entry No. 'ii' Rs.2,418-00, Entry No. 'iii' Rs.3,300-00 and
Entry No.'viii' Rs.10,000-00, in total Rs.15,718-00 towards educational expenses of his son Ranjith kumar and his daughter souwmya during the check period.
Further, the 1st accused disputed about the expenditure shown in the Entries 'i', 'iv', 'v','vi', 'vii' and 'ix' towards educational expenses of his son and daughter and contended that the prosecution failed to prove and establish the said expenditure towards educational expenses of his son and daughter and that the amounts covered under the said Entries are not taken into account towards expenditure incurred to him during the check period.
Entry No. 'i' Rs.6,075-00:
The letter addressed by the Secretary and Correspondent
Sri Ramakrishna English Medium High School and copies of the register of admissions and the fees particulars are marked as Ex.P.8 by consent of both parties. The statement of amounts paid towards fees by the 1st accused for his son and daughter in Ex.P.8 consistently reveal that the 1st accused paid an amount of Rs.6,075-00 towards fees of his son and daughter. The said document was collected by the
Investigation Officer P.W.70 during the course of investigation.
Whenever the 1st accused did not get dispute about the document and gave consent to mark the document as Ex.P.8, the said document can be considered for proof of the amounts paid by him towards fees of his son and daughter and as per the said document Ex.P.8, he spent an amount of Rs.6,075-00 towards educational expenses of his daughter and son.
In order that, the said amount of Rs.6,075-00 is liable to be taken into account towards expenditure incurred to him during the check period and as such the said amount of Rs.6,075-00 is taken into account in the expenditure met by him during the check period.
Entry No. 'iv' Rs.9,450-00:
The letter addressed by the Principal, Vidwan Residential
College, Brindavan Gardens, Guntur and copy of the register for payment of hostel fees are marked as Ex.P.9 by consent of both parties. The statement of amounts paid towards hostel fees by the 1st accused for his son and daughter in Ex.P.9 consistently reveal that the 1st accused paid an amount of Rs.9,450-00 towards hostel fees of his son and daughter. The said document was collected by the
Investigation Officer P.W.70 during the course of investigation. The 1st accused did not get dispute about the said document and gave consent to mark the document as Ex.P.9 and that the said document can be considered for proof of the amounts paid by him towards hostel fees of his son and daughter and as per the said document Ex.P.9, he spent an amount of Rs.9,450-00 towards educational expenses of his daughter and son.
In order that, the said amount of Rs.9,450-00 is liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amount of Rs.9,450-00 is taken into account in the expenditure met by him during the check period.
Entry No. 'v' Rs.49,000-00:
The letter addressed to the Dy. Superintendent of Police,
CBI, ACB, Visakhapatnam P.W.62 by the former Principal, Vignan's Co-
Operative Junior College, Vadlamudi, Guntur was marked as Ex.P.54 through P.W.43 the present Principal of Vignan's Co-Operative Junior college, Vadlamudi. P.W.43 has stated in his evidence that he has acquaintance with the signature of the former Principal and he identified his signature in the letter Ex.P.54. The contents of Ex.P.54 reveal that the 1st accused paid an amount of Rs.49,000-00 towards college tuition fee and hostel fee for his son.
In order that, the said amount of Rs.49,000-00 is liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amount of Rs.49,000- 00 is taken into account in the expenditure met by him during the check period.
Entry No. 'vi' Rs.12,000-00:
The evidence of P.W.44 Administrative Officer of Sri
Chaitanya Educational Institutions, Visakhapatnam reveal that an amount of Rs.12,000-00 was collected towards education fee for the daughter of 1st accused B.S.Souwmya during the academic year 2000- 2001.
Whenever the 1st accused is not denied about studying of his daughter in the Junior College of Sri Chaitanya Educational
Institutions, Visakhapatnam during the academic year 2000-2001, he has to prove about the amount incurred towards her education in the said college, in case the evidence of P.W.44 is not accurate. The 1st accused did not adduce either oral or documentary evidence as regards to the educational expenditure incurred to him for the studies of his daughter in the Junior College of Sri Chaitanya Educational
Institutions, Visakhapatnam. The evidence of P.W.44 emphatically divulge that the 1st accused spent an amount of Rs.12,000-00 towards education fee of his daughter B.S.Souwmya during the academic year 2000-2001.
In order that, the said amount of Rs.12,000-00 is liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amount of Rs.12,000- 00 is taken into account in the expenditure met by him towards educational expenses of his daughter during the check period.
Entry No. 'vii' Rs.29,740-00:
The letter addressed to the Dy. Superintendent of Police,
CBI, ACB, Visakhapatnam P.W.62 by the Principal of R.V.R and
J.C.College of Engineering, Chodavaram, Guntur was marked as
Ex.P.55 through P.W.45 Accountant of R.V.R and J.C. College of
Engineering, Chodavaram, Guntur. P.W.45 has stated in his evidence that he has acquaintance with the signature of the Principal of R.V.R and J.C.College of Engineering, Chodavaram, Guntur. He has identified the signature of the principal in the letter Ex.P.55. The contents of
Ex.P.55 reveal that the 1st accused paid an amount of Rs.29,740-00 in total, towards tuition fee and bus charges concerning to the education expenses of his son B.S.Ranjith Kumar.
The 1st accused is not denied about studying of his son in the R.V.R and J.C.College of Engineering, Chodavaram, Guntur and that he has to prove about the amount incurred towards his education in the said college, in case the evidence of P.W.45 is not accurate. The 1st accused did not adduce either oral or documentary evidence as regards to the educational expenditure incurred to him for the studies of his son in the R.V.R and J.C.College of Engineering, Chodavaram,
Guntur. The evidence of P.W.45 emphatically divulge that the 1st accused spent an amount of Rs.29,740-00 towards education fee of his son B.S.Ranjith Kumar.
In order that, the said amount of Rs.29,740-00 is liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amount of Rs.29,740- 00 is taken into account in the expenditure met by him during the check period.
Entry No. 'ix' Rs.52,110-00:
The evidence of P.W.47 and the contents of the letter
Ex.P.57 addressed by the Principal, J.N.T.U.college of Engineering,
Hyderabad to the Investigation officer P.W.70 reveal that the 1st accused paid an amount of Rs.32,770-00 towards fees of his daughter
B.Sara Souwmya during the academic years 2001-2005.
In order that, the said amount of Rs.32,770-00 is only liable to be taken into account towards educational expenses of the daughter of the 1st accused during the academic years 2001-2005 and as such the said amount of Rs.32,770-00 is taken into account in the expenditure met by him during the check period.
In view of this, the total expenditure spending by the 1st accused towards educational expenses of his son and daughter is i)
Rs.6,075-00; ii) 2,418-00; iii) 3,300-00; iv) 9,450-00; v) Rs.49,000- 00; vi) Rs.12,000-00; vii) Rs.29,740-00; viii) Rs.10,000-00 and; ix)
Rs.32,770-00, total Rs.1,54,753-00 and as such the said amount of
Rs. 1,54,753-00 is taken into account towards the expenditure for educational expenses of the son and daughter of the 1st accused during the check period.
103. Item No.8 of Statement 'D':
As per the evidence of P.W.17 and the contents of the statement of house tax paid details Ex.P.23, the 1st accused paid an amount of Rs.35,987-00 towards house tax and an amount of
Rs.1,125-00 towards sewage tax, in total Rs.37,112-00 for the period from 01.04.1995 to 01.04.2004. Even, the statement Ex.P.23 is excluded, the evidence of P.W.17 positively reveal that the 1st accused paid an amount of Rs.37,112-00 towards house tax and sewage tax.
In order that, the said amount of Rs.37,112-00 is only liable to be taken into account towards expenditure incurred to the 1st accused for payment of property tax during the check period and as such the said amount of Rs.37,112-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
104. Item No.9 of Statement 'D':
The evidence of P.W.48 the then City Planner, Vijayawada
Muncipal Corporation and the letter Ex.P.58 positively reveal that an amount of Rs.16,840-00 in total was collected towards license fee,
UDA charges and compounding fees for the building of the 1st accused situated in State Bank Colony, Gunadala.
In order that, the said amount of Rs.16,840-00 is liable to be taken into account towards expenditure incurred to the 1st accused during the check period and as such the said amount of Rs.16,840- 00 is taken into account in the expenditure during the check period shown in the statement 'D'.
105. Item No.10 of Statement 'D':
As per the statement 'D', the 1st accused spent an amount of Rs. 4,190-00 in total, towards General Insurance Policies during the check period.
The 1st accused did not dispute about the amount of
Rs.3,238-00 paid towards insurance of house hold articles and an amount of Rs.414-00 paid towards payment of annual premium for the insurance policy of vehicle during the check period. Further, the 1st accused disputed about payment of Rs.538-00 towards annual premium for the insurance policy and contended that the prosecution failed to prove and establish the said expenditure towards annual insurance premium and that the amount is not liable to be taken into account towards expenditure incurred to him during the check period.
The prosecution did not choose to examine any witnesses or to file any document to prove that the 1st accused paid an amount of Rs.538-00 towards annual premium for the insurance policy of
Oriental Insurance Company Limited, Guntur and that the said amount of Rs.538-00 is not liable to be taken into account in the expenditure incurred to the 1st accused during the check period.
In view of this, the total expenditure incurred to the 1st accused towards General Insurance Policies is i) Rs.3,238-00 and; ii) 414-00, in total Rs.3,652-00 and as such the said amount of Rs.
3,652-00 is taken into account towards the expenditure incurred to the 1st accused during the check period.
106. Item No.11 of Statement 'D':
As per the statement 'D', an amount of Rs.74,384-00 was paid by the 1st accused, towards telephone charges during the check period.
The 1st accused contended that the statements Exs.P.15 and P.16 are not containing the certificates required U/Sec. 65-B of
Indian Evidence Act and that the said statements and the evidence of
P.W.13 are not liable to be considered for proof of the payments towards telephone charges. The evidence of P.W.24 and the contents of Ex.P.32 are not reveal that he paid amounts towards excess calls in the telephone bills. No witnesses are examined and no documents are marked to prove that he spent an amount of Rs.4,200-00 towards cost of cell phone and connection charges. The prosecution miserably failed to prove and establish that he spent an amount of Rs.74,384-00 towards telephone charges during the check period and that the said amount is not liable to be taken into account towards expenditure during the check period.
The prosecution contended that the evidence of P.W.13,
P.W.15, P.W.24 and P.W.60 and the contents of Exs.P.15, P.16, P.19,
P.32 and P.72 reveal that the 1st accused spent an amount of
Rs.74,384-00, in total towards telephone charges and that the contentions of the 1st accused are not tenable.
107.The evidence of P.W.13 the then Accounts officer,
B.S.N.L.Vijayawada reveal that the telephone service connection bearing No.2545446 was standing in the name of the 1st accused and he furnished the print out containing the details of telephone bill payments relating to the said telephone service connection, to the CBI
Officer. The said print out was marked as Ex.P.15. The statement of payment of telephone charges in Ex.P.15 is reveal that an amount of
Rs.35,465-00 in total was paid towards telephone charges from 11.09.2001 to 30.06.2004 for the telephone service connection bearing No. 2545486 in the name of the 1st accused. Further, the statement of payment of telephone charges Ex.P.16 is reveal that a sum of Rs.28,289-00 in total was paid towards telephone charges from 01.07.1998 to 11.07.2001 for the telephone service connection bearing No. 2545486 in the name of the 1st accused.
The evidence of P.W.13 positively reveal that the telephone service connection bearing No.2545486 is in the name of the 1st accused. Therefrom, the 1st accused might have paid monthly charges and call charges every month for the telephone service connection which was in his name. If the evidence of P.W.13 is not accurate for payment of telephone charges by the 1st accused, the burden lies upon him to rebut his evidence and to confirm how much amount was incurred to him towards monthly charges and call charges for the said telephone service connection. In the decision M.Krishna
Reddy ... Appellant Vs., State represented by Dy. Superintendent of
Police, Hyderabad reported in 1993 Crl. Law Journal at Page No.308
(S.C), our Hon'ble Supreme Court held that, "once the prosecution discharges the burden rests on it by establishing the ingredients of the offence of criminal misconduct, the burden shifts on to the accused who will be required to satisfactorily account for the possession of his resources or property". Further, In the decision Hindustan Petroleum
Corporation Limited ... Appellant Vs., Sarvesh Berry ... Respondent
reported in 2005 (10) SSC at Page No.471,our Hon'ble Supreme Court held that "in cases involving Section 13 (1) (e) of the P. C. Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. He has to satisfactorily account for the same".
The 1st accused did not adduce evidence to prove how much amount incurred towards telephone charges though the said telephone service connection bearing No. 2545486 was in his name.
The evidence of P.W.13 positively reveal that an amount of Rs.62,104- 00 in total, was paid towards telephone charges for the telephone service connection bearing No. 2545486 which was in the name of the 1st accused. In manner of that, the said amount of Rs.62,104-00 is to be taken into account towards expenditure incurred to the 1st accused during the check period.
108.The evidence of P.W.15 the then Divisional Manager,
Divisional office, Gudiwada and the contents of the register maintained for telephone charges consisting of internal audit report Ex.P.19 reveal that the 1st accused was directed to pay an amount of Rs.2,078-00 towards excess calls made over the telephone service connection provided to him in the residence and accordingly the 1st accused paid an amount of Rs.2,078-00 towards the charges of the said excess calls. Further, the evidence of P.W.24 the then Administrative Officer,
Divisional Office of Oriental Insurance Company Limited, Vijayawada and register maintained for telephone charges consisting of internal audit report Ex.P.32 reveal that the 1st accused was directed to pay an amount of Rs.6,002-00 towards excess calls made in the telephone service connection provided to him in the residence. The evidence of
P.W.60 the then Inspector of Police, CBI, Visakhapatnam reveal that the Dy. Superintendent of Police, CBI, Visakhapatnam alongwith him and others conducted search in the house of the 1st accused on 31.7.2004 and seized the letter addressed by the Senior Divisional
Manager, Oriental Insurance Company Limited to the Regional
Manager, Cochin Dt.16.12.2002 in Ex.P.72 and other documents. The said letter was addressed for recovery of excess calls made over the telephone service connection provided to the 1st accused in the residence. In the said letter, the Senior Divisional Manager directed for recovery of amount payable towards excess calls by the 1st accused. The 1st accused did not adduce evidence to prove that the said amount payable for excess calls is not recovered from him as per the said letter and the internal audit reports. In order that, an amount of Rs.8,080-00 in total (Rs.2,078-00 + Rs.6,002-00 = Rs.8,080-00), paid towards excess calls made over the telephone service connection provided to the 1st accused in the residence is to be taken into account as expenditure incurred to him during the check period.
The prosecution contended that there is a document for payment of Rs.4,200-00 towards cost of cell phone instrument and cell phone connection charges in Ex.P.72 which were seized from the house of the 1st accused by P.W.60 and the said document is not disproved by the 1st accused and that the said amount is liable to be taken into account in the expenditure incurred to the 1st accused during the check period.
There is no such document in the file Ex.P.72. The evidence of P.W.60 is also not reveal that such type of document is seized from the house of the 1st accused. The prosecution did not file any document and did not examine any witness and failed to prove that an amount of Rs.4,200-00 spent by the 1st accused towards cell phone instrument and cell phone connection charges and as such the said amount of Rs.4,200-00 is disallowed and precluded from the calculation of expenditure in the statement 'D'.
In view of this, the total expenditure incurred to the 1st accused towards telephone charges is i) Rs.62,104-00; ii) Rs.2,078-00 and; iii) Rs.6,002-00 in total Rs.70,184-00 and as such the said amount of Rs. 70,184-00 is taken into account towards the expenditure for telephone charges during the check period.
109. Item No.12 of Statement 'D':
As per the statement 'D', an amount of Rs.2,664-00 was paid towards bank lockers charges by the 1st accused, during the check period.
The 1st accused is not disputed and further confirmed that the total amount paid towards bank lockers charges was Rs.2,664-00 and as such the said amount of Rs.2,664-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
110. Item No.13 of Statement 'D': As per the statement 'D', an amount of Rs.36,762-00 in total, was paid by the 1st accused towards income tax besides Tax
Deducted at Source for the Assessment Years 1995-96 to 2001-02 during the check period.
The contents of Ex.P.41 Assessment Order, Ex.P.42 Income
Tax Returns, Ex.P.48 File of Income Tax Returns, Ex.P.50 Income Tax
Returns and Ex.P.83 Income Tax Returns and assessment orders consistently reveal about payment of Rs.36,762-00 in total, towards income tax besides tax deducted at source for the Assessment Years 1995-96 to 2001-02 during the check period. In consequence of this, it is not rational and sensible to consider the contentions of the 1st accused and that the said amount of Rs.36,762-00 is liable to be taken into account towards payment of income tax besides tax deducted at source and as such the said amount of Rs.36,762-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
111. Item No.14 of Statement 'D':
As per the statement 'D', an amount of Rs.36,238-00 in total, was paid by the 1st accused towards subscription of the chits to
Margadarsi Chit Fund Company Limited during the check period.
The evidence of P.W.4 the General manager (Finance)
Margadarsi Chit fund Private Limited, Hyderabad positively reveal that an amount of Rs.3,89,238-00 in total, was paid towards subscription of chits and he received an amount of Rs.3,53,000-00 in total, towards prize amount by way of cheques. Further, P.W.4 was not get cross examined by the 1st accused.
In order that, an amount of Rs.36,238-00 was paid towards subscriptions more than the amount received by him towards prize amount and that the same is liable to be taken into account towards expenditure met by the 1st accused and as such the said amount of Rs.36,238-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
112. Item No.15 of Statement 'D':
As per the statement 'D', an amount of Rs.10,250-00 in total, was given by the 1st accused towards donations during the check period.
The evidence of P.W.36 the then Assistant Commissioner of
Income Tax Officer, Guntur reveal that he processed the income tax returns of the 1st accused for the assessment year 1999-2000 and the 1st accused declared and claimed exemption for payment of Income
Tax on Rs.10,000-00 paid towards donations and submitted a receipt
Dt.8.2.1999. Further, P.W.36 was not get cross examined by the 1st accused. The receipt Dt.8.2.1999 issued by the Association for Rural
Economical and Educational Development, Venugopala nagar, Guntur in Ex.P.48 reveal that an amount of Rs.10,000-00 was given by the 1st accused towards contribution.
The prosecution did not adduce evidence to prove that an amount of Rs.250-00 was given by the 1st accused towards donation to the Leprosy Mission Trust of India on 5.12.1996 and that the said amount ofRs.250-00is liable to be disallowed and precluded from the calculation of expenditure in the statement 'D'.
In order that, an amount of Rs.10,000-00 was given by the 1st accused towards contribution to the Association for rural
Economical and Educational Development, Venugopala nagar, Guntur and that the said amount Rs.10,000-00 only is liable to be taken into account towards donations given by the 1st accused and as such the said amount of Rs.10,000-00 is taken into account in the expenditure incurred to the 1st accused during the check period.
113. Item No.16 of Statement 'D':
As per the statement 'D', an amount of Rs.5,580-00 and an amount of Rs. 44,010-00 in total Rs.49,590-00 was paid by the 1st accused towards house rents during the check period.
The 1st accused did not dispute about payment of
Rs.5,540-00 towards rents. Further, the 1st accused contended that the evidence of P.W.42 is not reveal consistently about payment of
Rs.44,010-00 by him towards rents and the prosecution failed to prove the same and that the said amount of Rs.44,010-00 is not liable to be taken into account towards expenditure.
The evidence of P.W.40 emphatically reveal that she is the owner of house bearing Door No.4-5-29/75, situated at Vidyanagar colony, Guntur and the house is consisting of ground floor and first floor and the first floor was rented to the 1st accused in the year 2002 and he lived for (2) two years and one month and the 1st accused paid rent at Rs.3,200-00 per month, for (8) eight months and thereafter, he paid rent at Rs.3,400-00 per month for (17) seventeen months.
As per her evidence, the 1st accused lived for a period of (25) twenty five months from the year 2002. In order that, the rents paid to her for the entire period are within the check period i.e., from 01.09.1993 to 31.07.2004 and that the amounts paid to her are to be taken into account towards expenditure incurred to the 1st accused during the check period.
In order that, the 1st accused paid an amount of
Rs.49,590-00 in total, towards house rents as asserted by the prosecution and as such the said amount of Rs.49,590-00 is taken into account towards expenditure incurred to the 1st accused during the check period.
114. Item No.17 of Statement 'D':
As per the statement 'D', an amount of Rs.8,000-00 was spent by the 1st accused towards flap surgery and root canal treatment taken by him during the check period.
The evidence of P.W.60 the then Inspector of Police, CBI,
Visakhapatnam reveal that the Dy. Superintendent of Police, CBI,
Visakhapatnam alongwith him and others conducted search in the house of the 1st accused on 31.7.2004 and seized the certificates and receipt issued by the Doctor, Sujana Multi Speciality Dental Hospital and Medical Claim Form containing the signatures of the 1st accused in
Ex.P.71 and other documents. The said certificate, receipt and medical claim form consistently reveal that an amount of Rs.8,000-00 was given by the 1st accused towards flap surgery and root canal treatment taken by him. The 1st accused did not disprove about seizure of the said documents from his house.
In order that, an amount of Rs.8,000-00 paid towards flap surgery and root canal treatment taken by the 1st accused is taken into account as expenditure incurred to him during the check period.
115. Item No.18 of Statement 'D':
As per the statement 'D', an amount of Rs.12,805-00 was paid by the 1st accused towards interest for utilizing the credit card during the check period.
P.W.22, the then Assistant Manager, Credit Card Division,
Ranigunz, Secunderabad has stated that VISA CREDIT CARD bearing
No.4346 7710 0026 0084 was issued to the 1st accused in the year 2002 as per the records.
The same was not denied by the 1st accused.
The statement of account of the said credit card is not containing the certificate U/Sec. 65-B of Indian Evidence Act. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements U/Sec.65-B of Indian Evidence Act are satisfied.
The letter Ex.P.30 addressed by the Regional Manager, Risk
Control Unit, Hyderabad to the investigation officer P.W.70 positively reveal that an amount of Rs.12,805-00 was paid by the 1st accused towards charges including interest and he furnished the said particulars as per the records maintained in the unit.
Whenever, the evidence of P.W.22 and the contents of the letter Ex.P.30 addressed by the Regional Manager, Risk Control Unit,
Hyderabad reveal that VISA CREDIT CARD bearing No.4346 7710 0026 0084 was issued to the 1st accused in the year 2002 and an amount of
Rs.12,805-00 was paid towards charges including interest as per the records in the unit, the burden lies upon the 1st accused to prove that the said VISA CREDIT CARD was not issued to him and he did not pay the said amount towards charges. He failed to prove the same.
In order that, an amount of Rs.12,805-00 paid by the 1st accused towards charges including interest for the said VISA CREDIT
CARD is taken into account as expenditure incurred to him during the check period.
116. Item No.19 of Statement 'D':
As per the statement 'D', an amount of Rs. 9,77,812-00 is taken into account towards Domestic expenditure, out of the gross salary of Rs.29,33,729-00 received by the 1st accused during the check period and 1/3rd of gross salary is fastened towards domestic expenditure.
As per the statement 'C', the total gross salary of the 1st accused for the period from 01.09.1993 to June, 2001 (94 months) was Rs.15,41,956/-, the total gross salary of the 1st accused for the period from July, 2001 to February, 2003 (20 months) was
Rs.5,40,000-00 and the gross salary of the 1st accused for the period from March, 2003 to July, 2004 (17 months) was Rs.8,17,373-00, in total Rs.28,99,329-00 and the same was taken into account towards gross salary at the time of calculating the net salary received by the 1st accused as income.
The evidence of P.W.10, P.W.31, P.W.34 and the contents of the pay particulars in Ex.P.12, Ex.P.46 and Ex.P.49 reveal that Rs.
28,99,329-00 was the gross salary of the 1st accused during the check period.
Further, as per the evidence of P.W.10 and the statement of the pay particulars in Ex.P.12, the gross salary of the 1st accused for the months November and December, 1994 are not taken into account in the gross salary of the 1st accused during the period from
September, 1993 to June, 2001.
In manner of that the gross salary of Rs.34,400-00 in total, for the months of November and December, 1994 is to be included in the calculation of the gross salary of the 1st accused during the check period and after subsuming the said amount, the gross salary of the 1st accused during the check period is Rs. 29,33,729.00 (Rs. 28,99,329-00 + Rs.34,400-00 = Rs. 29,33,729.00).
Further, the prosecution contended that 1/3rd amount out of gross salary is to be taken into account towards domestic expenses as enunciated by our Hon'ble Supreme Court in the decision Sajjan
Singh ... Appellant Vs., State of Punjab ... Respondent reported in AIR
1964 (SC) at Page 464that "atleast Rs.36,000-00 out of disproportionate net income of Rs.1,03,000-00 must have been spent in living expenses.
In order that, 1/3rd amount out of the said gross salary of
Rs. 29,33,729.00 received by the 1st accused during the check period is Rs.9,77,812.00 as shown in the statement 'D' by the prosecution and as such the said amount of Rs.9,77,812.00 is taken into account towards domestic expenditure during the check period.
117. Item No.20 of Statement 'D':
As per the statement 'D',an amount of Rs. 4,172-00 was paid by the 1st accused towards land tax during the check period for the agricultural lands in the name of his wife.
The evidence of P.W.40 the Village Revenue Officer,
Jaggayyapeta reveal that the Mandal Revenue Officer/Tahsildar,
Jaggayyapeta afforded certified photo copies of Adangals, chitta and
F.M.B for the lands in the name of the wife of the 1st accused to the investigation officer P.W.70 under a covering letter Ex.P.52
Dt.28.03.2007 and he has acquaintance with the signature of the
Tahsildar Thota Rangayya and the said letter and other documents are containing his signatures. The letter and the other documents in
Ex.P.52 consistently reveal that an amount of Rs.4,172-00 was paid towards land tax from 1994 to 2000 for the lands in the name of the wife of 1st accused B.Jyothi Vimala as per the revenue records.
In order that, the said amount of Rs.4,172-00 is liable to be taken into account towards land tax paid by the 1st accused and as such the said amount of Rs.4,172-00 is taken into account towards expenditure incurred to the 1st accused during the check period.
118. Item No.21 of Statement 'D':
As per the statement 'D',an amount of Rs. 505-00 was paid by the 1st accused to General Insurance Employees' Co-Operative
Thrift and Credit Societies Limited, Vijayawada during the check period towards entrance fee.
The evidence of P.W.64 Senior Assistant, General Insurance
Employees' Co-Operative Thrift and Credit Societies Limited,
Vijayawada and the contents of the letters Ex.P.82 positively reveal that the 1st accused paid an amount of Rs.505-00 towards admission fee.
In order that, the said amount of Rs.505-00 is taken into account towards expenditure incurred to the 1st accused during the check period.
119. Item No.22 of Statement 'D':
As per the statement 'D',an amount of Rs. 40,000-00 was spent by the 1st accused during the check period for purchasing and installation A.C. unit in the car.
As per the evidence of P.W.19, the then Chief Manager,
Oriental Insurance Company Limited, New Delhi, every officer and development officer has to submit property returns including movable property transactions exceeding Rs.25,000-00 in the prescribed format to the head office as per the General Insurance C.D.A. Rules and accordingly, the 1st accused submitted property returns and he has informed to the head office that he had incurred an expenditure of
Rs.40,000-00 towards the cost of Air Conditioner installed in the car.
In order that, the said amount of Rs.40,000-00 is taken into account towards expenditure incurred to the 1st accused during the check period.
120. Item No.23 of Statement 'D':
As per the statement 'D',an amount of Rs. 21,000-00 was spent by the 1st accused during the check period towards fuel pertaining to the Hero Honda Motor Cycle.
The prosecution did not examine any witnesses and did not file any document to prove that the 1st accused spent an amount of
Rs.21,000-00 towards fuel pertaining to his Hero Honda Motor cycle.
Further, the evidence of investigation officer P.W.70 is not reveal that he calculated the said amount towards fuel as per the meter reeding of the Hero Honda Motor cycle. In manner of that the said amount of
Rs.21,000-00 is disallowed and precluded from the calculation of expenditure in the statement 'D'.
121. Item No.24 of statement 'D':
As per the statement 'D',an amount of Rs. 51,115-00 was spent by the 1st accused during the check period towards sundry expenses under the Receipts, bills and vouchers seized from his residence.
The evidence of P.W.60 the then Inspector of Police, CBI,
Visakhapatnam reveal that the Dy. Superintendent of Police, CBI,
Visakhapatnam along with him and others conducted search in the house of the 1st accused on 31.7.2004 and seized
Receipts/Bills/Vouchers in Ex.P.72 and other documents. The 1st accused did not adduce evidence to disprove the same.
The Receipts/Bills/Vouchers in Ex.P.72 reveal that an amount of Rs.21,740-00 in total, was spent by the 1st accused under the receipts and vouchers 1 to 12 shown in the Item No.24 of statement 'D'. The 1st accused did not adduce evidence to prove that the said receipts and vouchers are not relating to him and he did not make any payments under the said bills.
The 13th voucher shown in the Item No.24 of Statement 'D' i.e., the bill of M/s. SHREE RIDHI SIDHI JEWELLERS, GOLD
ORNAMENTS, Katmund, Nepal, is not containing the name of the 1st accused. The said bill is not reveal to whom it was issued. It is also not reveal who purchased the item under the said bill. There are rectifications in the amounts mentioned in the bill. The prosecution did not choose to examine anyone relating to the said SHREE RIDHI
SIDHI JEWELLERS, GOLD ORNAMENTS, Katmund, Nepal to prove that the 1st accused or his family members are purchased the item under the said bill. It is not reasonable to presume that the said bill was relating to the 1st accused as he was working in Katmund, Nepal. The evidence of P.W.60 is not reveal consistently and explicitly about seizure of the said bill alongwith other Bills/Receipts/Vouchers in
Ex.P.72. In view of this, the amount of Rs.29,375-00 under the said bill is not liable to be taken into account as spent by the 1st accused.
In order that, an amount of Rs.21,740-00 in total, is taken into account as spent by the 1st accused during the check period under the vouchers 1 to 12 in Ex.P.72 and as such the said amount of
Rs.21,740-00 is taken into account towards expenditure incurred to the 1st accused during the check period.
122.The particulars of the total expenditure incurred to the 1st accused during the check period from 01.09.1993 to 31.07.2004 comprehensively are:
Statement - D
Sl. No. Details of expenditure Expenditure Expenditure Expenditure as per I.O. as per 1st concluded Rs. accused and arrived Rs. at by the court Rs. 1 Sustainedlosstowards11,904-NIL-9,000 purchasing and selling TVS Scooty 2 Bank loan repayments 14,049-NIL-14,049 3lnterest and processing charges11,289-NIL-11,289 spent towards loans availed from M/s. Associates India Finances Private Limited, Guntur 4Late fees paid as per the330-00-NIL--NIL- statementsofM/s.Karvy computer Share Private Limited 5Registration fee and vehicle tax3,972-NIL--NIL- relating to Hero Honda Motor cycle 6Premium paid on Insurance2,83,661-NIL--NIL- policies 5 in number 7Expenditure towards educational1,74,09348,4881,54,753 expenses of the son and daughter of 1st accused during the check period 8Payment of property tax 43,118-NIL-37,112 9Compounding fee paid under a16,840-NIL-16,840 receipt 10Expenditure towards General4,1903,6523,652 Insurance Policies 11Expenditure towards Telephone74,3842,07870,184 charges 12ExpendituretowardsBank2,6642,6642,664 lockers charges 13Expenditure towards Income36,7621,23936,762 taxbesides tax deducted at source 14Expenditure towards subscription36,238-NIL-36,238 of chits in Margadarsi 15Expenditure towards donations 10,250-NIL-10,000 1649,5905,58049,590 Expenditure towards house rents 17Expenditure towards flap surgery8,000-NIL-8,000 and root canal treatment provided to the 1st accused 18Expenditure towards charges12,805-NIL-12,805 including interest for VISA
CREDIT CARD
19Domestic expenditure9,77,8123,20,5659,77,812 20Expenditure towards land tax 4,172-NIL-4,172 21Expenditure towards entrance505-NIL-505 charges of Thrift Society 22Expenditure towards purchasing40,000-NIL-40,000 and installation of A.C. Unit in Maruti Zen Car 23Expendituretowardsfuel21,000-NIL--NIL- pertaining to Hero Honda Motor cycle 24Amount spent towards sundry51,115-NIL-21,740 expenses under the Receipts, bills and vouchers seized from the residence of the 1st accused
TOTAL18,88,7433,84,26615,17,167
In view of all these reasons, I feel that the total expenditure incurred to the 1st accused during the check period from 01.09.1993 to 31.07.2004 is Rs.15,17,167-00.
This point is answered accordingly.
123. Point No.7:
Whether the 1st accused was in possession of
disproportionateassets worth Rs.15,91,026/- to known source
of income of him and his family members as on 31.07.2004 ?
In view of all the reasons conferred on the above points
Nos. 2 to 6:
i) Assets possessed by the 1st accused at the beginning of the check period as per compendious statement 'A' is worth
Rs.1,75,221.00; ii)Assets possessed by the 1st accused at the end of the check period as per the compendious statement 'B' is worth
Rs.24,80,643.00; iii)Assets acquired during the check period is worth Rs.
23,05,422.00 (Rs.24,80,643.00 - Rs.1,75,221.00 = Rs.23,05,422.00); iv)Expenditure incurred during the check period as per the compendious statement 'D' is Rs.15,17,167-00;
v)Total amount concerning to the assets acquired and expenditure during the check period is Rs.38,22,589.00 (Rs.23,05,422.00 + Rs.15,17,167-00 = Rs.38,22,589); vi)Income during the check period as per the compendious statement 'C' is Rs. 35,40,122-00; vii)DisproportionateAssetsisRs.2,82,467.00 (Rs.38,22,589.00 - Rs.35,40,122.00 = Rs. 2,82,467.00); viii)Percentage of disproportionate assets is7.98 (Disproportionate assets Rs.2,82,467.00 ÷Income during check period
Rs. 35,40,122.00 X 100 = 7.98).
Further, i) In the decision Krishnand Agnihotri ... Appellant
Vs., State of Madhya Pradesh ... Respondent reported in AIR 1977
Supreme Court at Page 796, our Hon'ble Supreme Court held that " the assets possessed by the appellant were in excess of the surplus income available to him and the excess is comparatively small and it is less than ten per cent of the total income and that it would not be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption and that on the facts of the case the
High Court as well as the Special Judge were in error in raising the presumption and convicting the appellant on the basis of such
presumption"; ii) In the decision B.C.Chaturvedi ... Appellant Vs.,
Union of India ... Respondent reported in 1995 SCC (6) at page 749,
our Hon'ble Supreme Court held that "if the excess was comparatively small i.e., it was less than 10% of the total income, it would be right to hold that the assets found in the possession of the accused were not disproportionate to his known source of income by raising the presumption and it is to be remembered that the said principle was evolved by this Court to give benefit of doubt, due to inflationary trend in the appreciation of the value of the assets."; iii) In the decision
Surya Sankaram Karri ... Appellant Vs., State ... Respondent reported
in 2004 (1) ALT (Crl) at Page 357 (A.P), our Hon'ble High Court
held that "the surplus assets of the accused are less than 10 % of the total income and as such the accused did not possess any assets disproportionate to his known source of income"; iv) In the decision
Akunuri Haranadha Babu Rao ... Appellant Vs., State ... respondent,
reported in 2016 (1) ALT (Crl) at page 350, our Hon'ble High Court held that "Disproportionate assets to the tune of 10% of the total income is permissible".
In view of this, disproportionate assets possessed by the 1st accused during the check period is Rs.2,82,467.00 and the disproportionate assets possessed by him is 7.98 % of his total income and disproportionate assets to the tune of 10 % of the total income is permissible and that the assets found in the possession of the accused are not disproportionate to his known source of income and as such the 1st accused did not possess any assets disproportionate to his known sources of income.
This point is answered accordingly.
124. Point No.8:
Whether the 1st accused fraudulently conspired with the 2nd
accused to defraud the investigation agency and in pursuance
of the said criminal conspiracy, the 2nd accused afforded three
contrary valuation reports with assorted values for the cost of
construction of the building of the 1st accused during the
course of investigation and dissimulated the factual cost of the
building ?
The prosecution contended that the 2nd accused is the registered architect of M/s. R.C.R. Associates, Vijayawada. The 1st accused with fraudulent intention conspired with the 2nd accused to mislead Central Project Works Department and investigation officers during the course of investigation and in pursuance of the said criminal conspiracy, the 2nd accused afforded three (3) contrary valuation reports with assorted values fluctuating from Rs.12.24 lakhs to
Rs.16.65 lakhs for the cost of construction of the building on different dates during the course of enquiry to help the 1st accused and dissimulated the factual cost of the building of the 1st accused. The 1st accused fraudulently and dishonestly used the said fabricated valuation reports as genuine with knowledge and belief that the said valuation reports are forged.
The prosecution further contended that the wife of the 1st accused Jyothi Vimala put forward a valuation report Dt.03.10.2003 alongwith a letter to the Superintendent Engineer, Valuation Cell, I.T.
Department P.W.2 to delude and mislead him and the said report was prepared by the 2nd accused assigning the value of the building at
Rs.15.99 lakhs, which was contra to the valuation given by him in the earlier reports Exs.P.24 and P.27. The evidence of P.Ws.18, 21 and 38 reveal that the 2nd accused due to conspiracy with the 1st accused afforded the said reports on assorted values, with fraudulent intention to defraud and mislead the enquiry officers. P.W.2 has stated in his evidence that the reports prepared by the 2nd accused are not scientific or nearer to the reality. The 2nd accused prepared the said reports with assorted values on the instigation of the 1st accused over phone as per the evidence of P.W.18. The 1st and 2nd accused due to criminal conspiracy between them, fabricated the said valuation reports and used as genuine with the knowledge and belief that the same are forged and fabricated and that 1st and 2nd accused are liable to be punished for the offences under section 120-B, 465 and 471 IPC. It is contended by the counsel for the 1st and 2nd accused respectively that P.W.21 took the assistance of P.W.38 to locate and inspect the house of the 1st accused. He contracted with the license architect 2nd accused and then he along with P.W.38 and 2nd accused inspected the house of the 1st accused. The 2nd accused took the measurements of the house in their presence and submitted report to
P.W.21. He paid an amount of Rs.2,500-00 to the 2nd accused towards his fees. P.W.21 conducted discrete enquiry against the 1st accused who was working at katmund as per the instructions of Chief
Vigilance Officer, head office, New Delhi and engaged the 2nd accused and took the valuation report from him. The 1st accused has no knowledge for the same. The evidence of P.Ws.18, 21 and 38 reveal the same. The 2nd accused afforded only the valuation report Ex.P.27 to the Oriental Insurance Company and he did not issue other valuation reports in Ex.P.24. Ex.P.24 is fabricated by the investigation officer with the assistance of P.W.18 and the 2nd accused is noway concerned to the said valuation reports. The 1st accused did not submit any valuation report to P.W.2 or to the investigation officer.
The evidence of P.W.21 and P.W.27 reveal that the Oriental Insurance company accepted the valuation report Ex.P.27 given by the 2nd accused and dropped further action. The investigation officer P.W.70 with the assistance of P.W.18, got manipulated the said valuation reports in Ex.P.24 since the valuation report Ex.P.27 given by the 2nd accused was accepted by the Oriental Insurance Company. P.W.2 has stated that the 1st accused did not furnish valuation report to him.
The 1st accused has no knowledge about enlisting of the 2nd accused by P.W.21 and P.W.38 to assess the valuation of his building and that the contentions of the prosecution that the 1st accused conspired with the 2nd accused and obtained false reports with assorted values to mislead the enquiry officers, are all false and deliberately concocted to defame him. The 2nd accused is no way concerned to the alleged reports in Ex.P.24. The prosecution failed to prove and establish the guilt of the accused Nos. 1 and 2 for the offences under section 120-B, 465 and 471 IPC and they are liable to be acquitted.
125.The evidence of P.W.21 the then Vigilance Officer, Regional
Office, Oriental Insurance Company, Hyderabad and P.W.38 the then
Asst. Divisional Manager, Divisional Office, Oriental Insurance
Company, Vijayawada reveal that the Chief Vigilance Officer, head office, Oriental Insurance Company Limited, New Delhi, instructed
P.W.21 over telephone to inspect the house of the 1st accused situated at Vijayawada and submit a status report and that P.W.21 met the
Divisional Manager, Divisional Office, Oriental Insurance Company,
VIjayawada and requested to depute staff member to assist him to locate and inspect the house of the 1st accused and that the Divisional
Manager deputed P.W.38 to assist P.W.21 and that P.W.38 assisted
P.W.21 to locate and inspect the house of the 1st accused situated at
Vijayawada. P.W.21 contracted with the license architect 2nd accused to value the house of the 1st accused. In the month of May, 2004,
P.W.21 alongwith P.W.38 and the licensed architect 2nd accused inspected the house of the 1st accused. The 2nd accused took the measurements of the house of the 1st accused. He submitted a valuation report to P.W.21. On 11.5.2004, P.W.21 forwarded the valuation report of the 2nd accused, photos and negatives under a covering letter to the head office, New Delhi. The 2nd accused assessed and valued the site and house of the 1st accused at
Rs.23,89,500-00. P.W.21 paid fee Rs.2,500-00 to the 2nd accused.
The evidence of P.W.21 and P.W.38 assertively and consistently reveal that P.W.21 engaged the 2nd accused to assess the value of the house of the 1st accused and the 2nd accused took measurements in their presence and submitted valuation report
Ex.P.27 and P.W.21 forwarded the said report Ex.P.27 to the head office, New Delhi. Further, P.W.21 has stated in the cross examination that the 1st accused was working at Katmund by the time of conducting discrete enquiry against him and the discrete enquiry conducted by him was not in the knowledge of the 1st accused. In order that, it is not reasonable to consider the contentions of the prosecution that the 1st accused conspired with the 2nd accused to obtain the said valuation report Ex.P.27 with false assessment to deceive and mislead the enquiry officers and the 2nd accused due to criminal conspiracy with the 1st accused afforded the said valuation report Ex.P.27 with deceiving and deceptive values.
126.P.W.18 is the private building supervisor. He has stated in his evidence that he and the 2nd accused are the partners of R.C.R.
Associates Architecture. P.W.38 approached them in the year 2003 for valuation of building of the 1st accused situated at Srinivasanagar,
Bank colony, Vijayawada. He and the 2nd accused visited the said building and valued the building at Rs.18,33,000-00 and gave report.
P.W.38 again in the year 2004 approached them and requested to give revised valuation report for the building of the 1st accused as per the market value prevailing in the year 2004. He and the 2nd accused visited the building and valued the property at Rs.23,89,500-00 and gave report to P.W.38. He and the 2nd accused furnished the said reports to the CBI Officer under the covering letter dt.13.8.2006
Ex.P.24. The evidence of P.W.21 and P.W.38 is not reveal that
P.W.18 and 2nd accused visited the house of the 1st accused and gave the valuation report Ex.P.27 at Rs.23,89,500-00. Further, as per the evidence of P.W.38, the 1st accused asked him in the year 2005 to get the copy of the valuation report given by the 2nd accused in the year 2004 and accordingly he met the 2nd accused to supply copy of the valuation report and that he afforded copy of the valuation report duly signed by him and Ex.P.24 was the said valuation report.
Ex.P.24 is consisting the copies of valuation reports said to be given by the 2nd accused for Rs.18,33,000-00 and for
Rs.23,89,500-00 respectively . The evidence of P.W.38 is not reveal whether the copy of the valuation report assessed at Rs.23,89,500-00 or the copy of the valuation report assessed at Rs.18,33,000-00 was given to him. His evidence is also not reveal about the presence of
P.W.18 and his attestation at the time of giving the said copy of the valuation report to him by the 2nd accused. P.W.70 the investigation officer has stated in his evidence that he received the said certified copies of valuation reports in Ex.P.24 from P.W.18 on 13.8.2006. His evidence is not reveal about the presence of the 2nd accused and his attestation at the time of receiving the said certified copies of valuation reports from P.W.18.
Whenever, the certified copies of valuation reports in
Ex.P.24 are received by P.W.70 from P.W.18, it is not reasonable to consider the evidence of P.W.18 or P.W.38 that the said valuation reports are given to P.W.38 by P.W.18 and the 2nd accused. There is no piece of evidence to prove that either the 1st accused or the 2nd accused submitted the said valuation report of Rs.18,33,000-00 in
Ex.P.24, to the Oriental Insurance Company or the enquiry officers.
The investigation officer P.W.70 did not seize or collect the original of the said valuation report of Rs.18,33,000-00, said to be that the accused Nos. 1 and 2 are conspired and fabricated the said report and submitted to the enquiry officers of Oriental Insurance Company with fraudulent intention to deceive them. The evidence of P.W.21 the then Vigilance Officer, Regional Office, Oriental Insurance Company or the evidence of P.W.27 the then Manager in the Vigilance Department, head office, Oriental Insurance Company, New Delhi is not reveal that the 1st accused or 2nd accused submitted such type of valuation report of Rs.18,33,000-00 for contemplation of value of the building of the 1st accused at Rs.18,33,000-00. In manner of that, it is not reasonable to consider the contentions of the prosecution that the 2nd accused due to conspiracy with the 1st accused fabricated the said valuation report of Rs.18,33,000-00 on fabulous figures and the 1st accused used the said report as genuine with knowledge and belief that it was forged. Even if the evidence of P.W.18 is inferred as proper and veritable, the contents of the valuation report of
Rs.18,33,000-00 in Ex.P.24 is reveal that it was given as per the market rate prevail in the year 2003 and the valuation report of
Rs.23,89,500-00 in Ex.P.24 was given as per the market rate prevail in the year 2004 as deposed by P.W.18. If the valuation reports are obtained from any valuer as per the market rate prevail, valuation will be varied from one another and as such it is not consistent and coherent to consider the evidence of P.W.18 to prove that the 1st accused conspired with the 2nd accused and obtained the said reports with assorted values to defraud the concerned authorities.
127.As per the evidence of P.W.2, 1st accused did not furnish the valuation report to him. Further, P.W.2 submitted his report Ex.P.2 under a covering letter Dt.22.02.2006. The letter Dt.29.6.2005 addressed to him by the wife of the 1st accused, was afforded to the
Superintendent of Police, C.B.I. Visakhapatnam under a covering letter
Dt.4.7.2005. Photocopy of the valuation report for Rs.15,99,000-00 was with the said letter Dt.29.6.2005 addressed by the wife of the 1st accused. In manner of that, it is not reasonable to consider that the said copy of the valuation report for Rs.15,99,000-00 was appended to the valuation report Ex.P.2 as contended by the prosecution. P.W.2 has stated in his letter Dt.4.7.2005 addressed to the Superintendent of
Police, C.B.I.Visakhapatnam that he furnished the letter received from the 1st accused for perusal and favour of information. The said letter is not reveal that P.W.2 also furnished the copy of the said valuation report for Rs.15,99,000-00 to the Superintendent of Police, CBI,
Visakhapatnam. Further, P.W.2 has stated in the cross examination that the 1st accused did not furnish the valuation report to him. In order that, the prosecution failed to prove that the said copy of the valuation report was fabricated by the 2nd accused due to conspiracy with the 1st accused and the 1st accused submitted it to P.W.2 for consideration with knowledge and belief that it was forged.
In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage to the public or to support any claim or to commit fraud. The offence of forgery is to be completed when a false document is made dishonestly and fraudulently with an intention to defraud. Unless there is an element of fraud, making of a false document would not amount to forgery.
The accused can be said to have committed a forgery of document, even if he himself is the author and signatory of the document. The fabrication of a copy of document falls within the ambit of forgery.
Alteration of document dishonestly and fraudulently is the offence of making a false document. Forgery and fraud are basically matters of evidence which could be proved as facts by direct evidence or by inferences drawn from proved facts. Suspicions and surmises, and conjectures are not permissible substitutes for those facts or those inferences. Mere proof of making of a false document without establishing intention is not sufficient to constitute the offence. In a charge of forgery and using of a forged document as genuine, the burden is on the prosecution to prove the same. The onus of proof of the existence of every ingredient of the charge always rests with the prosecution which never shifts.
The evidence of P.W.2, P.W.18, P.W.21, P.W.27, P.W.38 and
P.W.70 or the contents of Ex.P.2, P.24, P.27, P.28 and P.29 are not reveal substantially that the 1st accused conspired with the 2nd accused to mislead Central Project Works Department and investigation officers during the course of investigation and in pursuance of the said criminal conspiracy, the 2nd accused fabricated valuation reports with assorted values and fabulous figures and the 1st accused dishonestly and fraudulently used the said fabricated reports as genuine with an intention to defraud and dissimulate the factual cost of his building and that the prosecution failed to prove and establish that the 1st and 2nd accused are committed offences punishable under sections 120-B, 465 and 471 IPC.
This point is answered accordingly.
128. Point No.9:
Whether the prosecution proved the guilt of the 1 st accused
beyond all reasonable doubt for the offence U/Sec.13 (2) r/w.
Sec. 13 (1) (e) of Prevention of Corruption Act ?
In view of all the reasons conferred on the above points
Nos. 2 to 7, i) the Assets possessed by the 1st accused at the beginning of the check period as per compendious statement 'A' is worth Rs.1,75,221.00; ii) Assets possessed by the 1st accused at the end of the check period as per the compendious statement 'B' is worth
Rs.24,80,643.00; iii) Assets acquired during the check period is worth
Rs.23,05,422.00(Rs.24,80,643.00-Rs.1,75,221.00=
Rs.23,05,422.00); iv) Expenditure incurred during the check period as per the compendious statement 'D' is Rs.15,17,167-00; v) Total amount concerning to the assets acquired and expenditure during the check period is Rs.38,22,589.00 (Rs.23,05,422.00 + Rs.15,17,167-00 = Rs.38,22,589); vi)Income during the check period as per the compendious statement 'C' is Rs. 35,40,122-00; vii) Disproportionate
Assets is Rs.2,82,467.00 (Rs.38,22,589.00 - Rs.35,40,122.00 = Rs.
2,82,467.00) and; viii) Percentage of disproportionate assets is 7.98 (Disproportionate assets Rs.2,82,467.00 ÷Income during check period
Rs. 35,40,122.00 X 100 = 7.98) and that disproportionate assets possessed by the 1st accused during the check period is
Rs.2,82,467.00 and the disproportionate assets possessed by him is 7.98 % of his total income and disproportionate assets to the tune of 10 % of the total income is permissible and that the assets found in the possession of the accused are not disproportionate to his known source of income and as such the 1st accused did not possess any assets disproportionate to his known sources of income and that the prosecution miserably failed to prove and establish the guilt of the 1st accused beyond all reasonable doubt for the offence under section 13 (1) (e) of Prevention of Corruption Act and he is liable to be acquitted.
This point is answered accordingly.
129. Point No.10:
Whether the prosecution proved the guilt of the 1st and 2nd
accused beyond all reasonable doubt for the offences U/Sec.
120-B and 465 and 471 IPC ?
In view of all the reasons conferred on the above point
No.8, the evidence of P.W.2, P.W.18, P.W.21, P.W.27, P.W.38, P.W.70 or the contents of Ex.P.2, P.24, P.27, P.28 and P.29 are not reveal substantially that the 1st accused conspired with the 2nd accused to mislead Central Project Works Department and investigation officers during the course of investigation and in pursuance of the said criminal conspiracy, the 2nd accused fabricated valuation reports with assorted values and fabulous figures and the 1st accused dishonestly and fraudulently used the said fabricated reports as genuine with an intention to defraud and dissimulate the factual cost of his building and that the prosecution miserably failed to prove and establish the guilt of the 1st and 2nd accused beyond all reasonable doubt for the offences under sections 120-B, 465 and 471 IPC and they are liable to be acquitted.
This point is answered accordingly.
130.In the result, the 1st accused is found not guilty for the charges under section 13 (2) r/w. 13 (1) (e) of Prevention of
Corruption Act and under sections 120-B, 465 and 471 IPC framed against him and he is acquitted under section 248 (1) Cr.P.C for the offences under sections 13 (2) r/w. 13 (1) (e) of Prevention of
Corruption Act and under section 120-B, 465 and 471 IPC and the 2nd accused is found not guilty for the charges under sections 120-B, 465 and 471 IPC framed against him and he is acquitted under section 248 (1) Cr.P.C for the offences under sections 120-B, 465 and 471 IPC.
Further, the 1st and 2nd accused shall be set at liberty and the bail bonds shall stand cancelled in accordance with Section 437-A
Cr.P.C.
Typed to my dictation by the typist corrected and
pronounced by me in open court, this the 17th day of November,
2017.
I ADDL. SPL. JUDGE FOR CBI CASES
VISAKHAPATNAM
APPENDIX OF EVIDENCE
NO. OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION:
P.W.1: M.Lingeswara Rao Consultant Engineer and approved valuer.
P.W.2:R.P.Golkonda Superintendent Engineer, Valuation cell, I.T.Department, Hyderabad
P.W.3:S.Venkatachalam General Manager, Karvy Computer shares
P.W.4:S.Venkata Swamy General Manager (Finance), Margadarsi Chit Fund Pvt. Ltd., Hyderabad
P.W.5:D.Murali Krishna The then Chief Manager, Andhra Bank, Ring Road branch, Vijayawada
P.W.6: B.Radha Krishna Murthy Administration in-charge, Bhasyam School Public Main branch, Chandramolinagar, Guntur.
P.W.7: Syamala Kumari Headmistress of Motessori E.M. High School, Gudivada.
P.W.8:G.Someswara Rao The then Officer of Canara Bank, Chandramoulinagar branch, Guntur
P.W.9:C.Venu Gopal The then Branch Manager, Bank of Baroda, Gudivada branch
P.W.10: Ch. Kameswara Sarma The then Vigilance Officer, Regional Office, Oriental Insurance Company, Hyderabad
P.W.11: B.V.S.R.Anjaneyulu The then Chief Manager, Bank of India, Guntur branch
P.W.12: Kemba Phani The then Branch Manager, LIC of India, Kothapeta branch, Guntur.
P.W.13: C.D.M.J.Santha Kumar The then Accounts Officer TR-1, BSNL, Vijayawada.
P.W.14: K.Satyanarayana The then Sr. Divisional Manager, Divisional Office, Oriental Insurance Company ltd., Guntur.
P.W.15: R.Harihara Sarma The then Divisional Manager, Divisional office, Oriental Insurance Company Ltd., Gudivada.
P.W.16: N.Venkateswara Rao Retired Sr.D.M, Oriental Insurance Co. Ltd., Vijayawada.
P.W.17: A.Madhusudhana Rao The then Asst. Commissioner, Vijayawada Municipal Corporation.
P.W.18:Ch. Prasada Rao Private Building Supervisor, “RCR Associates Architecture”.
P.W.19: Premchend Srivastava The then Chief Manager, Oriental Insurance Co. Ltd., New Delhi.
P.W.20:T.Satya vani Private person and resident of Guntur.
P.W.21: K.Niranjana Rao The then Vigilance Officer, Regional Office, Oriental Insurance Co. Ltd., Hyderabad.
P.W.22: D.Soma Sekhar The then Asst. Manager, HDFC Bank, Credit Card Division, Ranigunz, Secunderabad.
P.W.23: V.K.Sharma The then Dy. Manager, (Vigilance) in the O/o Chief Vigilance Officer, New Delhi.
P.W.24: N.Trinadha Babu The then Admn. Officer, Divisional Office-II, Oriental Insurance Company Ltd., Vijayawada.
P.W.25:N.Srilatha The then Asst. Divisional Office-I, Oriental Insurance Co. Ltd., Guntur.
P.W.26: C.Srihari Babu The then Asst. Manager, Divisional Office-I, Oriental Insurance Company Ltd., Guntur.
P.W.27: S.C.Sarma The then Manager in Vigilance Department, Head Office, Oriental Insurance Company Ltd., New Delhi.
P.W.28: P.S.V.S.Satyanarayana Rao A.O., Oriental Insurance Company Ltd., Divisional Office-I, Guntur.
P.W.29: Yedla Ayyanna The then Dy. Commissioner, I.T.Department, Guntur.
P.W.30:Y.Krishna Prasad The then Senior Manager, Andhra Bank, Ring Road branch, Viajayawada.
P.W.31:V.D.Henry The then Vigilance Officer, Oriental Insurance Company Ltd., Divisional Office-III, Cochin.
P.W.32: G.Anbalagan The then Secretary, General Insurance Corporation Employees Co-op Thrift & Credit Soceity Ltd., Chennai.
P.W.33: V.Ranga Rao The then Income Tax Inspector, Range-II, Guntur.
P.W.34: Madhusudan Kumar The then Chief Executive Officer, Oriental Insurance Company Ltd., Khatmandu, Nepal.
P.W.35: S.Pulla Rao The then Dy. Commissioner of Income Tax, Circle-II, Guntur.
P.W.36: K.S.L.G.Sarma The then Income Tax Officer, Guntur.
P.W.37:B.Srinivasa Rao The then Dy. Post Master, Ongole.
P.W.38: G.Mukherjee The then Asst. Divisional Manager, Divisional Office, Oriental Insurance Company Ltd., Vijayawada.
P.W.39: V.Sambasiva Rao The then Asst. Administrative Officer, Marketing division, Oriental Insurance Company Ltd., Gudivada.
P.W.40: K.P.Raghavacharyulu Village Revenue Officer, Jaggayyapeta, Krishna Dist.
P.W.41: P.V.Ramachandra The then Senior Tax Assistant, Ward-2(2), Vijayawada.
P.W.42:K.Jhansi Rani Private person and resident of Guntur.
P.W.43: P.Nagendra Rao
Principal, Vignan’s Co-operative Junior College, Vadlamudi,
Guntur.
P.W.44: P.V.L.Prasad Administrative Officer, Sri Chaitanya Educational Institutions Jr. College, Visakhapatnam.
P.W.45: P.Pratap Accountant, RVR & JC College of Engineering, Chandramoulipuram, Chodavaram Guntur.
P.W.46: L.S.S.Reddy The then Principal, Koneru Lakshmiayya College of Engineering, Vaddeswaram, Guntur district.
P.W.47: Dr. A.K.Asthana The then Principal, JNTU College of Engineering, Hyderabad.
P.W.48: D.Venkataratnam The then City Planner, Vijayawada Municipal Corporation.
P.W.49: K.Vasudeva Rao The then Manager, Zonal Office, Indian Bank, Vijayawada.
P.W.50: H.K.Chhabra The then Vice President, Jaiprakash Associate Industries Ltd., New Delhi.
P.W.51: Uday Tardalkar The then Chief Operating Officer, UTI Securities, Mumbai.
P.W.52: P.B.Sekaran The then Addl. Commissioner of Income Tax, Vijayawada.
P.W.53: K.Pardhasarethi The Managing Director, XL Saftech Systems Ltd., Hyderabad.
P.W.54: Anraham K George Asst. General Manager, Sharepro Services India Pvt. Ltd., Mumbai.
P.W.55: Y.Tarakeswara Rao The then Dy. Chief Manager, Bank of India, Guntur.
P.W.56: D.Satyanarayana Divisional Manager, Divisional Office, Oriental Insurance Company Ltd., Ongole.
P.W.57: Y.Ramulu Regional Manager, Regional Ofice, Oriental Insurance Company Ltd., Hyderabad.
P.W.58:P.Srinivas Executive Director, Bank of Baroda, Mumbai.
P.W.59: S.Arun Raj The then Regional Manager, Southern Regional Office, UTI Technology Services Ltd., Chennai.
P.W.60: P.M.Naidu The then Inspector of Police, CBI, Visakhapatnam.
P.W.61: N.Raja Rao The then Inspector of Police, CBI, Visakhapatnam.
P.W.62: N.Surendaran The then is Dy. Superintendent, CBI, Visakhapatnam.
P.W.63: H.Krishna Moorthy The then General Manager, Data Software Research Co. Pvt. Ltd., Chennai.
P.W.64: M.Sri Hari Babu Senior Assistant, General Insurance Employees Co-operative Thrift and Credit Society Ltd., Vijayawada.
P.W.65: P.Jayakar The then I.T.O., I.T.Department, Gudivada.
P.W.66: S.Venkata Raju Asst. General Manager, M/s. Karvy Computer Share Pvt. Ltd., Hyderabad.
P.W.67: Mini Sukumaran The then Administrative Officer, LIC of India, Kaloor branch, Cochin, Kerala.
P.W.68: M.S.Vijaya Bhanu The then Branch Manager, City Finance Branch, Guntur.
P.W.69: D.Singh The then General Manager, Oriental Insurance Co. Ltd., Delhi.
P.W.70: U.V.Bhaskara Rao The then Inspector of Police, CBI, Visakhapatnam.
DEFENCE:
D.W.1:M. Krishna Prasad Sub-Registrar, Gunadala, Vijayawada.
D.W.2:B.P.Sunanda Kumar
Resident of Vijayawada.
D.W.3:L.B.Singh Joint Sub-Registrar-II, Vijayawada.
D.W.4:B.S.Vinay Kumar Senior Manager, Indian Bank, Peddapalli, Karimnagar district. D.W.5:Chakradar Singh Dy. General Manager, Personal department, Oriental Insurance Co. Ltd., New Delhi.
D.W.6:M.V.Raju Sr. Customer Service Executive, Standard Chartered Securities India Limited, Hyderabad.
D.W.7:Pavan Kumar Legal Officer, Oriental Insurance Co. Ltd., Head Office, New Delhi.
NO. OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:
Ex.P.1:Valuation report dated 05.07.1994 given by P.W.1
Ex.P.2:Valuation report given by P.W.2 along with covering letter.
Ex.P.3:Original application of 1st Accused and his wife, transfer deeds and statements of redemption of debentures.
Ex.P.4:File consisting Margadarsi chit fund documents of 1st Accused.
Ex.P.5:File consisting details of SB a/c. and fixed deposit and locker of 1st Accused and his wife in Andhra Bank.
Ex.P.6:File consisting tuition fee particulars, receipts, covering letter of Bhashyam Public School and copy of school fees register relatingto daughter of 1st Accused.
Ex.P.7:File containing the fee particulars of son and daughter of 1st Accused in Montessori E.M. High School during the years 1994-95 to 1997-98.
Ex.P.8:School Fee particulars relating to the children of 1st accused.
Ex.P.9:School Fee particulars relating to the children of 1st accused
Ex.P.10:File consisting of covering letter, SB a/c, DUAL a/c and locker a/c details of 1st Accused.
Ex.P.11:Joint Ledger extract of SB a/c. of 1st Accused and his wife, Ledger extract of loan a/c of 1st accused and details of locker availed by the 1st Accused and his wife along with covering letter.
Ex.P.12:Pay particulars of 1st Accused for the period from 01.09.93 to 30.06.01 along with covering letter.
Ex.P.13:Extract of statement of SB a/c. No.15751 of 1st Accused in Bank of India.
Ex.P.14:Status reports and copies of policy bonds along with covering letter.
Ex.P.15:Print out details of telephone bill payments for the period from 11.09.2001 to 30.06.2001 pertaining to 1st Accused along with covering letter.
Ex.P.16:Print out details of telephone bill payments for the period from 01.07.1998 to 11.07.2001 pertaining to the 1st Accused along with covering letter.
Ex.P.17:Attested copy of policy of Scooty of wife of 1st Accused along with covering letter dated 29.09.2005.
Ex.P.18:Leave encashment, LTS & Festival Advance register, Wage arrears details from 1995 to 1998 relating to 1st Accused along with covering letter dated 1.9.2006.
Ex.P.19:Telephone register containing internal audit report under covering letter.
Ex.P.20:Letter dated 25.8.02 along with Form 24 B-Register of motor vehicle.
Ex.P.21:Receipt memo dated 27.8.05 along with file.
Ex.P.22:Bunch of four house hold insurance policies from 2002 to 2004.
Ex.P.23:Statement of house tax and sewage tax for 1st Accused building along with covering letter dated 22.8.06.
Ex.P.24:Valuation report and revised valuation report for the building of 1st Accused.
Ex.P.25:File containing APRs of 1st Accused for the annual years ending 31.3.2004 and 31.3.2001 under covering letters 14.4.01 and 02.07.01.
Ex.P.26:Kathmandu posting letter of 1st Accused dated 26.4.2002.
Ex.P.27:Covering letter, valuation report of 2nd Accused & photos with corresponding negatives.
Ex.P.28:Covering letter dated 27.05.2004.
Ex.P.29:Receipt memo dated 03.05.2005.
Ex.P.30:Credit card consolidated statement, print outs and covering letter dated 24.4.2007.
Ex.P.31:Letter dated 29.11.01 giving the particulars of P.F refundable loan a/c. of 1st Accused.
Ex.P.32:Relevant entries at page no.65 & 66 of the Telephone Register relating to telephone calls made by 1st Accused.
Ex.P.33:Festival advance availed by 1st Accused in page no.5 of Loans & Advances register.
Ex.P.34:P.F.Loan availed by Accused 1in page no.181 of Loans & Advances register.
Ex.P.35:Housing loan availed by 1st Accused of Loans & Advances register.
Ex.P.36:Annual property return of 1st Accused as on 31.03.2004.
Ex.P.37:Statement of balance of flood advance as on 31.3.99.
Ex.P.38:Festival advance schedule of 1st Accused as on 31.3.2000.
Ex.P.39:Schedule of Flood Advance balance sheet dated 31.3.2000.
Ex.P.40:Schedule statement of leave encashment of 1st Accused for the years 1999-2001.
Ex.P.41:Xerox copies of IT returns of 1st Accused for the assessment year 2003-2004.
Ex.P.42:IT Returns of 1st Accused for the assessment year 2001- 02.
Ex.P.43:Relevant entry at S.No.15 in page no.13 of Personal Establishment of salary register.
Ex.P.44:Relevant entry at S.No.18 in page no.161 of Personal Establishment of salary register.
Ex.P.45:Locker proceedings pertaining to locker of 1st Accused and his wife in Andhra Bank.
Ex.P.46:Pay particulars of 1st Accused from July, 2001 to February, 2003 along with covering letter and letter of Chief Manager.
Ex.P.47:Covering letter dated 04.05.2007 containing the details of loan sanctioned, Thrift deposit interest, dividend on share capital etc. by Co-op society belongs to 1st Accused.
Ex.P.48:Income tax returns of 1st Accused for the assessment year 1999-2000.
Ex.P.49:Xerox copy of pay particulars of 1st Accused for the period from 1.3.2003 to 31.7.2004.
Ex.P.50:Income tax returns of 1st Accused for the assessment year 2000-2001.
Ex.P.51:Post office savings bank ledger card of 1st Accused.
Ex.P.52:Attested copy of Adangal for the fasili 1402 to 1413 relating to wife of 1st Accused in S.No.222, land revenue true copy of land revenue chitta and true copy of FMB.
Ex.P.53:File containing IT returns of 1st Accused for the assessment years 2004-05, 2005-06 and 2006-07.
Ex.P.54:Letter head of Vignan Co-operative Junior College, Guntur which contains fee particulars of son of 1st Accused during the academic years 1997-1999.
Ex.P.55:Letter head dated 09.06.205 of RVR & JC College of Engineering,Chodavaram which contains fee particulars of son of 1st Accused during the academic years 1999 to 2002.
Ex.P.56:File containing the fee receipts and covering letter relating to fee particulars of son of 1st Accused during the academic years 2002 to 2004.
Ex.P.57:Letter dated 25.4.2007 issued by JNTU College of Engineering, Hyderabad containing the fee particulars of daughter of 1st Accused during the academic years 2001 to 2005.
Ex.P.58:Letter dated 8.3.07 containing the details of building licence fees, UDA charges and compounding fees.
Ex.P.59:Inventory list of house hold articles prepared at the time of search at the house of 1st Accused in Vijayawada.
Ex.P.60:Statement of account of current share holding in the name of wife of 1st Accused.
Ex.P.61:Covering letter dated 15.2.07 containing the Demat holding statements as on 1.2.07 and 31.7.04, OFF Market instructions slip numbers and depository participant bills sent to clients.
Ex.P.61:Letter dated 20.4.2007 given by XL Saftech Systems Ltd. containing the share transactions of 1st Accused relating to Nagarjuna Fertilizers and Chemicals Ltd.
Ex.P.62:Letter dated 23.4.2007 along with two original share applications and details of Bank of India share transactions.
Ex.P.63:Statement of SB a/c No.16699 of son of 1st Accused pertaining to Bank of India.
Ex.P.64:Statement of loan account No.330008 of 1st Accused pertaining to Bank of India.
Ex.P.65:Relevant page nos. 324, 294 to 310, 325 to 332, 340, 341, 316, 318 and 319 in Original car loan file of 1st Accused.
Ex.P.66:Letter dated 25.4.2007 containing the particulars of rent paid by 1st Accused.
Ex.P.67:Sale deed no.1807/02, dated 9.7.02.
Ex.P.68:Sale deed no.4770/93, dated 16.6.93.
Ex.P.69:File containing the Xerox copies of LIC policies and connected sheets.
Ex.P.70:Cash memo No.4630, dated 9.8.1999 for purchase of watch at Titan Showroom in the name of the daughter of 1st Accused.
Ex.P.71:Bunch of papers containing medical expenditure and medi claim papers relating to 1st Accused.
Ex.P.72:Bunch of papers containing bills of miscellaneous expenditure of 1st Accused.
Ex.P.73:File containing the movable and immovable properties intimationto the company by 1st Accused.
Ex.P.74:File containing insurance papers in the name of 1st Accused.
Ex.P.75:Bunch of papers consisting of UTI Securities, agreement with karvy, share pro, Tilak Associates etc. relating to 1st Accused.
Ex.P.76:File containing IT Returns, salary details etc. of 1st Accused.
Ex.P.77:30 Photos and 31 negatives relating to the house of 1st Accused.
Ex.P.78:Order dated 13.1.2005 issued by SP, CBI, Visakhapatnam.
Ex.P.79:FIR in R.C.1(A)/2005.
Ex.P.80:Order dated 18.2.2005 issued by SP, CBI, Visakhapatnam.
Ex.P.81:File relating to the shares held in Essar Steel Limited by 1st Accused and his wife.
Ex.P.82P: Letters dated 29.10.2005 and 19.09.2005 containing the transactions made by 1st Accused in General Insurance Employees Co-operative Thrift and Credit Society Ltd.
Ex.P.83:IT Returns of 1st Accused for the assessment year 1996- 97.
Ex.P.84:Documents relating to the shares purchased and dividends received by 1st Accused and his wife.
Ex.P.85:Statement of LIC polices dated 27.05.2005 and details of loan availed and repaid on policies by the 1st Accused.
Ex.P.86:Bunch of papers pertaining to status report of five policies held by 1st Accused.
Ex.P.87:Sanction order dated 17.5.2007 to prosecute 1st Accused.
Ex.P.88:Letter dated 21.11.2005 along with vouchers and statement of account of personal loan taken by 1st Accused.
Ex.P.89:Statement of immovable properties of 1st Accused for the year 2006.
Ex.P.90:Covering letter dated 21.1106 under which Ex.P.89 was received.
Ex.P.91:House tax paid details dated 20.01.2007 of 1st Accused.
Ex.P.92:Certified copies of 14 sheets relating to the vehicle loan availed by 1st Accused.
Ex.P.93:Account book maintained by 1st Accused.
Ex.P.94:File containing the bills and receipts maintained by 1st Accused.
DEFENCE:
Ex.D.1Photocopy of estimation dated 15.04.1994 with approved plan.
Ex.D.2Photocopy of first valuation report dated 26.05.94 prepared by P.W.1.
Ex.D.3Photocopy of second valuation report dated 12.06.94 prepared by P.W.1.
Ex.D.4Photocopy of final valuation report dated 16.05.95 prepared by P.W.1.
Ex.D.5Pay slips of 1st Accused for May, 1995; December, 1998; January, 1999; February, 1999 and July, 2000.
Ex.D.6Photocopy of letter dated 3.2.05 along with Index card particulars of 1st Accused.
Ex.D.7IT Returns for the assessment year 2002-03 of 1st Accused.
Ex.D.8Market value certificate dated 19.01.2016 issued by Sub- Registrar, Gandhi nagar.
Ex.D.9Market value certificate dated 27.03.2014 issued by Sub- Registrar, Gandhi nagar.
NO. OF MARKING OF THE DOCUMENTS FILED BY THE
WITNESSES:
Ex.X.1Authorization letter dated 2.7.2013 given by Jaiprakash Associate Industries Ltd., New Delhi.
Ex.X.1(A) Authorization given by General Manager, Oriental Insurance Co.Ltd.
Ex.X.2Computer generated salary particulars of 1st Accused for the period from 01.07.1992 to 30.06.2000.
Ex.X.3Salary particulars of 1st Accused for the period from July, 2001 to February, 2003.
Ex.X.4Salary particulars of 1st Accused for the period from July, 2002 to June, 2006.
Ex.X.5Computer generated transaction statement of wife of 1st Accused maintained by UTI Securities (I) Ltd.
Ex.X.6Authorization letter dated 10.10.2016.
I ADDL. SPL. JUDGE FOR CBI CASES
VISAKHAPATNAM
CALENDAR AND JUDGEMENT
DISTRICT OF VISAKHAPATNAM
Calendar of Cases tried by the I Addl. Special Judge for C.B.I Cases, Visakhapatnam --------------------------------------------------------- ---------------------- Date of offence:12.06.2015 Date of report or complaint:12.06.2015 Date of apprehension of accused:12.06.2015 Date of release on bail:22.07.2015 Date of commencement of trail:02.11.2016 Date of close of trial:08.12.2017 Date of sentence or order:28.02.2018
Explanation of delay and remarks:
This case was taken on file on 08.03.2016 against the accused. Accused was appeared before this Court on 27.06.2016.On 19.10.2016 charges were framed against the accused and the examination of witnesses was commenced on 02.11.2016.
On behalf of the prosecution, P.W.1 to 12 were examined and Ex.P.1 to Ex.P.43 and Ex.P.16-A and M.O.1 to 4 were marked.On behalf of the accused D.W.1 and 2 were examined and Ex.D.1 to D.14 and Ex.D.6-A to 6-D, Ex.D.7-A and Ex.D.10-A and Ex.X.1 to 4 were marked. The trial was completed on 08.12.2017. Judgement is pronounced on 28.02.2018.
Judgement in Calendar Case No.06/16 on the file of I Addl. Special Judge
for C.B.I., Cases, Visakhapatnam
Complainant: State represented by the Inspector of Police, Central Bureau of Investigation, Special Police Establishment, Visakhapatnam (R.C.No. 7(A)/2015 – C.B.I., VSP)
Name of the accused:Kondagorri Omsi Ravi Kumar
Age:55 years
Father’s Name:Late Hari Bandhu
Religion:Hindu
Calling:Branch Manager (Andhra Bank), Nagullanka branch, East Godavari district.
Residence:Rella village, G.L.Puram,
Mandal / District:Vizianagaram
Offence: Under section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused.
Finding: Accused was found guilty for the charge for the offence Under
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 2 section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and thereby he is convicted Under section 248(2) Cr.P.C.
Sentence: The accused is sentenced to suffer rigorous imprisonment for a period of three (3) years and to pay a fine of Rs.5,000/- (Rupeesfivethousandonly)indefaulttosuffersimple imprisonment for a period of six (6) months for the offence under section 7 of Prevention of Corruption Act and further sentenced the accused to suffer rigorous imprisonment for a period of four (4) years and to pay a fine of Rs.5,000/- (Rupeesfivethousandonly)indefaulttosuffersimple imprisonment for a period of six (6) months for the offence under section 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act. All the substantive sentences imposed respectively against accused shall run concurrently.
Accused paid the fine amount of Rs.10,000/-.The substantive sentences of imprisonment imposed against the accused are suspended for one month from today.
I Addl. Spl. Judge for CBI Cases, Visakhapatnam.
Copy submitted to: The Registrar (Judicial), Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Hyderabad.
Copy to:
1. The Superintendent of Police, Central Bureau of Investigation, Visakhapatnam.
2. The General Manager (H.R), Andhra Bank, Head Office, Hyderabad.
In the Court of the I Additional Special Judge for CBI Cases,
Visakhapatnam
Present: K.Siva Rama Krishna, I Addl. Spl. Judge for CBI Cases, Visakhapatnam.
Wednesday, this the twenty eighth (28th) day of February, 2018
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 3
C.C.06/2016
Between:
State, represented by the Dy. Superintendent of Police, Central Bureau of Investigation & Anti Corruption Bureau, Visakhapatnam.
... Complainant
A n d:
Kondagorri Omsi Ravi Kumar, S/o. Late Hari Bandhu, Aged about 55 years, The then Branch Manager, Andhra Bank, Nagullanka branch, East Godavari District. R/o. Indrapalem, Kakinada. Permanent resident of Rella Village, Vijayanagaram.
... Accused
This case was coming on 21-02-2018 for final hearing before mein thepresenceofSmt.K.Srilatha,PublicProsecutorforthe complainant and of Sri K.V.Rama Murthy, Advocate for the accused and having stood over for consideration till this day, this court made the following:
J U D G M E N T
The Deputy Superintendent of Police, Central Bureau of
Investigation & Anti Corruption Bureau, Visakhapatnam laid the charge sheet against the accused in R.C.No.07(A)/2015 of Central Bureau of
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 4
Investigation, Visakhapatnam for the offences punishable U/Sec.7 and 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act.
2.This case was taken on file as C.C.06/2016 and made over to this court for disposal in accordance with law as per the orders of the
Principal Special Judge for CBI Cases, Visakhapatnam.The accused
appeared before the court and he was furnished with copies of documents as contemplated U/Sec.207 Cr.P.C. The accused was examined U/Sec.
239 Cr.P.C and he denied the prosecution case. On perusal of the entire material on record and on hearing both sides, charges U/Sec.7 and 13 (2) r/w. 13 (1) (d) of P.C. Act against the accused were framed, read over and explained to him and he pleaded not guilty and claimed to be tried.
3.During the course of trial, P.Ws.1 to 12 were examined and
Exs.P.1 to P.43 and M.Os.1 to 4 were marked on behalf of the prosecution.On closure of the prosecution evidence, the accused was examinedU/Sec.313Cr.P.Contheincriminatingcircumstances appearing against him in the evidence of prosecution witnesses and he denied the same.D.Ws.1 and 2 were examined and Exs.D.1 to D.14 were marked on behalf of the accused. The documents filed by the witnesses are marked as Exs.X.1 to X.4.
The accused got filed written statement U/Sec. 243 (1) Cr.P.C subsequent to his examination U/Sec. 313 Cr.P.C.The complainant and theaccusedgotfiledmemorandumofargumentsontheirbehalf respectively.
4.The gist of the prosecution case, in brief, is as follows:
The accused was working as Branch Manager, Andhra bank,
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 5
Nagullanka branch, East Godavari District.The complainant (P.W.2) is a resident of Nagullanka village and he is an agriculturist.The Schedule
Caste Services Co-operative Society (SCSC Society) invites applications fromtheschedulecasteunemployedyouthforprovidingfinancial assistance by way of subsidy loans under self employment programme.
The complainant P.W.2 belongs to schedule caste and in the month of
November, 2014, he perceived the publication made by the Schedule
Caste Corporation and applied on-line to sanction a loan for purchasing a power tiller (Krushi Tractor).He was attended to the interview conducted in the M.P.D.O. Office by the Mandal Parishad Development Officer,
Branch Manager, Andhra Bank, Nagullanka branch and the committee membersand he was selected by the selection committee as eligible for the financial assistance under the scheme of SCAP 2014-2015 and the
Chairman/Collector, the District Scheduled Caste Service Co-Operative
Limited issued proceedings Dt.11.2.2015 informing that they will be provided an amount of Rs. one lakh towards subsidy and the bank will be provided Rs.90,000/- towards loan and he has to bear Rs.10,000/- towards beneficiary share out of Rs. 2 lakhs, in relation to the unit cost and the same was communicated to the Complainant (P.W.2), Mandal
Parishad Development Officer and the Branch Manager, Andhra Bank,
Nagullanka branch.The branch manager accused gave willing letter to
P.W.2 and he (P.W.2) submitted the said willing letter in the Office of the
District Scheduled Caste Corporation and then P.W.2 was approaching the accused persistently for the loan amount and the accused gave assurance that he will be arranged the loan within a short period by informing that there was financial crisis in the branch and thereafter in the month of February, 2015, the accused informed him that the loan was
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 6 under process.On 11.6.2015, the accused asked P.W.2 to furnish quotation for purchasing a Krushi Tractor from the showroom and demanded a bribe of Rs.20,000/- to release the loan amount.P.W.2 expressed his inability to give bribe as demanded by him.The accused did not heed his requests and demanded him a bribe of Rs.20,000/- to release the loan amount.P.W.2 was not willing to give illegal gratification to the accused as demanded by him and that he made a phone call and informed the same to the Superintendent of Police, CBI.On 12.6.2015 between 7.00 to 8.00 a.m, he received a phone call from the constable of
CBI and as per his instructions, he met the Inspector of Police, C.B.I (P.W.11) at Inspection Quarters, Head Post Office at 09.30 a.m on 12.6.2015 and gave written complaint Ex.P.1 against the accused.He also furnished copy of proceedings of the Collector/Chairman, District
ScheduleCasteServiceCo-OperativeSocietyLimitedEx.P.16
Dt.11.2.2015 and copy of the letter of willingness (Ex.P.11) issued by the branch manager, Andhra Bank, Nagullanka branch Ex.P.12 to P.W.11, along with the complaint Ex.P.1.P.W.11 caused discrete enquiries about the antecedents of the accused and then sent copy of the complaint
Ex.P.1 to the Superintendent of Police, CBI, Visakhapatnam through
E-mail and the Superintendent of Police, CBI, Visakhapatnam instructed him to lay trap to hold the accused red-handedly while demanding and accepting bribe of Rs.20,000/- from P.W.2.P.W.11 secured the presence of K.Vivekananda Kumar (P.W.1) Assistant Divisional Manager,
United India Insurance Company Limited, Tadepalligudem and Bitra
Ramesh Kumar (L.W.8) security officer, Oil and Natural Gas Corporation
Limited, Rajahmundry to act as independent witnesses.He introduced
P.W.2 to them (P.W.1 & L.W.8) and made known the complaint Ex.P.1 to
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 7 them. P.W.11 received information that a case against the accused was registered by the Dy.Superintendent of Police, CBI, Visakhapatnam P.W.8 in R.C.No.07(A)/ 2015 for the offence U/Sec. 7 of Prevention of Corruption
Act, on the basis of scanned copy of the complaint Ex.P.1.P.W.11 got demonstrated the chemical reaction between sodium carbonate solution and phenolphthalein powder to P.W.2 and mediators (P.W.1 and L.W.8) through his staff and then he got applied phenolphthalein powder to the currency notes of Rs.20,000/- which were given by P.W.2 through the constable and got kept the same in his left side shirt pocket.P.W.11 cautioned P.W.2 not to touch the tainted currency notes till the accused demanded him to give the amount.P.W.11 also instructed P.W.2 to give signal to them by moving hand over his hair as soon as the accused demands and accepts bribe of Rs.20,000/- from him.P.W.11 prepared all the proceedings into writing under pre trap proceedings Ex.P.13.P.W.2 alongwith P.W.1 proceeded to the Andhra bank, Nagullanka branch on his motor cycle.P.W.11, his team members and the other independent witness(L.W.8) followed them by two four wheelers.P.W.2 and the witness P.W.1 reached the bank at 2.30 p.m and went into the bank.
P.W.11, his team and others were waiting at the vicinity of the bank.The accused was not available in the bank and he went to take lunch and that the complainant P.W.2 and the witness P.W.1 were waiting in the branch.
The accused came to the bank after 15 minutes and asked them to wait for 10 minutes.The accused after some time called for P.W.2 and that the complainant P.W.2 alongwith P.W.1 went into the accused cabin and introduced P.W.1 to him as his uncle.P.W.1 requested the accused to release the loan amount to the complainant P.W.2 and that the accused informed them that the loan amount will not be released without credit the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 8 subsidy amount from the S.C. Corporation and then gave assurance that he will be provided a personal loan of Rs. one lakh to P.W.2. The accused asked P.W.2 to send away P.W.1 from his cabin, by signs and that P.W.1 came out from his cabin. The accused asked P.W.2 whether he brought the amount as demanded by him and that P.W.2 took out the tainted currency notes from his left side shirt pocket and gave to the accused.
The accused received and counted the said currency notes and kept the same in the right side table drawer. P.W.2 came out from the cabin of the accused and gave pre arranged signal to P.W.11.P.W.11 alongwith his team and other mediator (L.W.8) rushed into the cabin of the accused and revealed their identity and then P.W.11 asked the accused whether he demanded and accepted bribe from P.W.2 and he reduced what was stated by the accused into writing under post trap proceedings.Both the hand fingers of the accused were subjected to phenolphthalein test and the resultant solutions turned into pink colour and those solutions were collected into separate bottles (M.Os.1 and 2) and the said bottles were sealed and labelled with their signatures.The tainted currency of
Rs.20,000/- was amassed from the right side table drawer of the accused and the numbers of those currency notes were compared with the numbers of the notes noted down in the pre trap proceedings and the same were tallied and that the said tainted currency notes of Rs.20,000/- (M.O.4) were seized.The portion of surface of the post card on which the tainted currency was kept in the right side table drawer was subjected to phenolphthalein test and the resultant solution turned into pink colour and the said solution was collected into a separate bottle (M.O.3) and the said bottle was sealed and labelled with their signatures.P.W.11 enquired
P.W.1, P.W.2 and the accused and then reduced all those proceedings
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 9 into writing under post trap proceedings Ex.P.14 and prepared rough sketch Ex.P.41 for the scene of offence.P.W.11 arrested the accused and conducted search at his residential premises and then produced the accused before the court on 13.6.2016 for judicial remand.The Dy.
Superintendent of Police, CBI, Visakhapatnam P.W.12 received the case file from P.W.8 for further investigation.On 26.6.2015, he got sent the resultant solution and wash bottles M.Os.1 to 3 to the C.F.S.L. Hyderabad for chemical analysis and to give report and the Assistant Director, Central
Forensic Science Laboratory, Hyderabad examined the solutions and washesandgavereportEx.P.43announcingthathedetected phenolphthalein in the said solutions and washes (M.Os.1 to 3).P.W.12 examined P.Ws.1 to 8, P.W.9 and Bitra Ramesh Kumar (L.W.8) and recorded their statements under section 161 Cr.P.C. He got sent copy of
FIR, copies of pre trap proceedings, post trap proceedings, statements of witnesses recorded U/Sec. 161 Cr.P.C and copies of the documents collected during the course of investigation to the General Manager (HR),
Andhra bank, Head Office, Hyderabad P.W.10 to accord sanction orders to prosecute the accused and on that, P.W.10 accorded sanction order
Ex.P.33 Dt.26.08.2015 to prosecute the accused. P.W.12 after completion of the investigation, laid the charge sheet against the accused to prosecute for the same. The accused being the Branch Manager, Andhra bank, Nagullanka branch, demanded and accepted illegal gratification of
Rs.20,000/-fromthecomplainantP.W.2forsanctionofbank apportionmentandreleaseoftheamounttowardssubsidyloan sanctioned under self employment programme and committedcriminal misconduct and he is liable to be punished for the offences U/Sec.7 and 13 (2) r/w.Sec.13 (1) (d) of Prevention of Corruption Act.
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 10
5.Now the points for determination are:
1. Whether the General Manager (H.R), Andhra bank, Head Office, Hyderabad (P.W.10) is the competent authority to accord sanction toprosecutetheaccusedandthesanctionorderEx.P.33 Dt.26.08.2015 accorded by him (P.W.10) to prosecute the accused is impregnable and legally valid ?
2. Whether the accused being public servant demanded and accepted illegal gratification of Rs.20,000/- from the complainant P.W.2 for sanction of bank apportionment and release of the amount towards subsidy loan sanctioned under self employment programme and committed criminal misconduct ?
3. Whethertheprosecutionprovedtheguiltoftheaccused beyond all reasonable doubt for the offences U/Sec. 7and13(2) r/w. 13 (1) (d) of P.C. Act ?
6. POINT No.1:
Whether the General Manager (H.R), Andhra bank, Head Office, Hyderabad (P.W.10) is the competent authority to accord sanction toprosecutetheaccusedandthesanctionorderEx.P.33 Dt.26.08.2015 accorded by him (P.W.10) to prosecute the accused is impregnable and legally valid ?
The General Manager (Human Resource), Andhra bank,
Head Office was examined as P.W.10. Sanction order Dt.26.08.2015 was marked as Ex.P.33.
As per the evidence of P.W.10 and the contents of sanction order Ex.P.33, Deputy General Manager is the competent authority to take disciplinary action against Scale-II and Scale-III Officers.General manager is the competent authority to remove Scale-III Officers from service as per the Disciplined and Appeal Regulations of Andhra Bank
Officers.He, being the General Manager (H.R) Andhra Bank, Head
Office, Hyderabad received copies of FIR, statements of witnesses, pre trap proceedings, post trap proceedings, proceedings issued by the
Schedule Caste Corporation and other relevant documents from CBI,
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 11
Visakhapatnam, through Vigilance Department of Andhra bank with a request to issue sanction order to prosecute the accused.He perused and examined the copies of FIR, statements of witnesses, pre trap proceedings, post trap proceedings, proceedings issued by the Schedule
Caste Corporation and all otherrelevant material documents and satisfied that the material placed before him prima facie discloses commission of an offence of a public servant taking gratification other than legal remuneration and criminal misconduct and that he accorded sanction orders Ex.P.33 Dt.26.08.2015 to prosecute the accused in a court of law for the offences under section 7 and section 13 (2) r/w. 13 (1)
(d) of Prevention of Corruption Act in accordance with section 19 (1) (c) of
Prevention of Corruption Act.
7.The Deputy Superintendent of Police, CBI, Visakhapatnam was examined as P.W.12.As per the evidence of P.W.12, he got sent copy of FIR, pre trap proceedings, post trap proceedings, statements of witnesses and copies of all the documents collected during the course of investigation to the Chief Vigilance Officer, Andhra Bank, Hyderabad through the Superintendent of Police, CBI, Visakhapatnam to accord sanction orders to prosecute the accused.
Further, the circular of competent authority for placing the officers under suspension and appellate authority against suspensions
Ex.P.32 reveal that the Deputy General Manager (Personal) is the disciplinaryauthorityandtheGeneralManager(Personal)isthe competentauthoritytotakedisciplinaryactionagainstmiddle management Grade Scale-II and Scale-III Officers in Andhra bank.
8.Itiscontendedbythecomplainantthroughthepublic
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 12 prosecutor that the evidence of P.W.10 and the contents of sanction order
Ex.P.33revealthatP.W.10beingtheGeneralManager(Human
Resource) is competent authority to remove the accused and he perused and examined all the relevant documents and applied his mind and accorded sanction to prosecute the accused.The sanction authority is not compel to carry out a roving enquiry as done by the trial court.The circular Ex.P.32 reveal that P.W.10 is the competent authority to accord sanctiontoprosecutetheaccused.Theprosecutionprovedand established that the sanction order Ex.P.33 accorded by P.W.10 is a valid document.
9.It is contended by the Advocate for the accused that the sanction order Ex.P.33 Dt.26.08.2015 issued to prosecute the accused
U/Sec. 19 of P.C.Act is invalid and the same was issued mechanically without application of mind.The evidence of P.W.10 and the evidence of investigation officer P.W.11 unveil that the said sanction order is invalid and unsound and the same was issued without application of mind by the alleged competent authority. The relevant documents are not provided to the sanctioning authority and that the sanctioning authority had not been taken into consideration of the said relevant documents filed before the court, while granting the alleged sanction order.P.W.10 is not the competent authority to accord sanction to prosecute the accused.The
General Manager of Human Resource is not the competent authority to remove or to issue sanction order to prosecute middle management
Grade Scale-II and Scale-III Officers in Andhra Bank in accordance with the circular Ex.P.32 and further the General Manager of Personal is only the competent authority to remove or to issue sanction orders to prosecute middle management Grade Scale-II and Scale-III Officers as
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 13 per the circular Ex.P.32 and P.W.10 is the General Manager of Human
Resource and that the sanction order accorded by him is not valid and no document is filed to prove that the nomenclature for General Manager of
Personal was changed to ‘General Manager of Human Resource’.
The prosecution has to establish and satisfy that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction has been granted in accordance with law.The prosecution did not adduce substantial evidence and failed to prove the same and that the alleged sanction order is invalid.
10.The evidence of P.W.10, P.W.12 and the contents of the sanction order Ex.P.33 positively reveal that the General Manager is the competent authority to accord sanction to prosecute the accused.The
General Manager was the appointing and removal authority of Scale-II and Scale-III Officers.He, being the General Manager, received copies ofFIR,statementsofwitnesses,pretrapproceedings,posttrap proceedings, proceedings issued by the Schedule Caste Corporation and other relevant documents from CBI, Visakhapatnam through Vigilance
Department of Andhra Bank with a request to issue sanction order to prosecute the accused.He perused and examined all the material documents and satisfied that the material placed before him prima facie discloses commission of offences punishable under section 7 and section 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act and that he accorded sanctionordersEx.P.33Dt.26.08.2015toprosecutetheaccused.
Further, the evidence of P.W.10 consistently reveal that the General
Manager (Personal) is the competent authority to take disciplinary action against Scale-II and Scale-III Officers in the Andhra Bank in accordance
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 14 with the circular Ex.P.32 and the nomenclature and terminology of
General Manager (Personal) was changed to the ‘General Manager (Human Resource)’ subsequent to the issuance of Ex.P.32 and that he being the General Manager (Human Resource) is the competent authority to accord sanction to prosecute the accused.
In consequence of this, P.W.10 being the General Manager (Human Resource) was the competent authority to remove Scale-II and
Scale-III Officers in Andhra Bank in accordance with the circular Ex.P.32 and he perused and examined the copies of the FIR, statements of witnesses, pre trap proceedings, post trap proceedings, proceedings issued by the Schedule Caste Corporation and all the other relevant documents placed before him and applied his mind and accorded sanction to prosecute the accused.Whenever all relevant materials are placed
before the sanctioning authority and such authority fully applied its mind to
such materials and then accords sanction, the same is valid and that it is notreasonabletoconsiderthecontentionsoftheaccusedthat “necessary materials are not placed before the sanctioning authority and the sanctioning authority has not applied its mind and P.W.10 being the
General Manager (Human Resource) is not the competent authority to accord sanction order and that the sanction order Ex.P.33 Dt.26.08.2015 is not valid”.
11.Further, order of sanction is an administrative function and not a quasi judicial one and opportunity of hearing to the accused before according sanction need not be given.The authority is only required to apply his mind to the facts and evidence collected. He need not weigh the evidence or even admissibility thereof.The order granting sanction must
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 15 be demonstrative of the fact that there had been proper application of mind by the sanctioning authority.Application of mind does not mean going through the evidence in details and sanctioning authority has to satisfy himself whether the complainant discloses a prima facie case.
Details of evidence would be assessed during trial.The same was enunciated by our Hon'ble Supreme Court in the decision State represented
by ACB ... Appellant Vs., R.C.Anand ... Respondent reported in 2004 (4) SCC at
page No.615.Whenever all the relevant material was placed before the sanctioning authority and he granted sanction after fully applying his mind and when there is no infirmity in the order granting the sanction, the sanction order is valid.When the sanction itself is very expressive, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. The same was enunciated by our Hon'ble Supreme Court in the decisions C.S.Krishnamurthy ...
Appellant Vs., State of Karnataka ... Respondent reported in 2005 IV AD (SC) at
page No.141 and ii) State of Tamilnadu ... Appellant Vs., Damodaran ...
Respondent reported in AIR 1992 (SC) at page No.563.Whenever the sanctioning authority accorded sanction for prosecution after considering and examining all the material documents and after applying its mind, the sanction is valid and a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby.
In view of all these reasons I feel that P.W.10 being the
General Manager is the competent authority to remove Scale-II and
Scale-III Officers in Andhra Bank and he being the General Manager (Human Resource) received, perused and examined the copies of FIR,
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 16 statements of witnesses, pre trap proceedings, post trap proceedings, proceedings issued by the Schedule Caste Corporation and all other material documents placed before him and applied his mind and accorded sanction to prosecute the accused and that the sanction order Ex.P.33
Dt.26.08.2015 is effectual and valid.
This point is answered accordingly.
12.Point No.2:
Whethertheaccusedbeingpublicservantdemandedand accepted illegal gratification of Rs.20,000/- from the complainant
P.W.2 for sanction of bank apportionment and release of the amount towards subsidy loan sanctioned under self employment programme and committed criminalmisconduct ?
The complainant, independent witnesses the Assistant Divisional
Manager, United India Insurance Company Limited, Tadepalligudem, the then Executive Director and Section Writer in Schedule Caste Corporation
Society,Kakinada,MandalParishadDevelopmentOfficer,
P.Gannavaram,thethenBranchManagerandAssistantManager,
Andhra Bank, Nagullanka branch, Chief Manager(P & D), Andhra Bank,
Zonal Office, Kakinada were examined as P.Ws.1 to 7 and P.W.9 respectively and further, the trap laying officer and the other investigation officerDeputySuperintendentofPolice,CBI,Visakhapatnamwho registered the copy of the compliant were examined as P.W.8 and P.W.11 respectively.
The evidence of P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and the contents of the application Ex.P.2, beneficiary details Ex.P.3, caste certificate Ex.P.4, income certificate Ex.P.5, copy of Aadhar Ex.P.6, copy of secondary school certificate Ex.P.7, copy of the house hold card
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 17
Ex.P.8, residence certificate Ex.P.9, order of proceedings issued by
MandalParishadDevelopmentOfficerP.GannavaramEx.P.10,the proceedingsissuedbytheExecutiveDirectorofScheduleCaste
Corporation Society in the name of District Collector/Chair person Ex.P.16 and the resolution passed by the Committee Members Ex.P.22, positively reveal that the complainant (P.W.2) is a resident of Nagullanka village. He belongs to Schedule Caste and he is an agriculturist.The Schedule
Caste Services Co-operative Society (SCSC Society) invites applications fromtheschedulecasteunemployedyouthforprovidingfinancial assistance by way of subsidy loans under self employment programme.
The complainant P.W.2 perceived the publication made by the Schedule
Caste Corporation in the month of November, 2014 and applied on-line to sanction a loan for purchasing a power tiller (Krushi Tractor).He was attended to the interview conducted on 6.12.2014 in the M.P.D.O. Office by the Mandal Parishad Development Officer, Mandal Prabhakar Rao
P.W.4, Andhra Bank, Nagullanka branch manager, N.Krupa Rao P.W.5,
S.C.Corporation Section writer G.S.K.S.Satish P.W.6 and the other committee members and he was selected by the selection committee as eligible for the financial assistance under the scheme of SCAP 2014-2015 in accordance with the resolution Ex.P.22 passed by the committee members and that the then Executive Director of Schedule Caste
Corporation Society, Kakinada P.W.3 issued proceedings Dt.11.2.2015
Ex.P.16 and Ex.P.16-A in the name of the District Collector/Chairman of the District Scheduled Caste Service Co-Operative Limited informing that they will be provided an amount of Rs. one lakh towards subsidy and the bank will be provided Rs.90,000/- towards loan and he has to bear
Rs.10,000/- towards beneficiary share out of Rs. 2 lakh, in relation to the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 18 unit cost and the same was communicated to the complainant P.W.2,
Mandal Parishad Development Officer P.W.4 and the Branch Manager,
Andhra Bank, Nagullanka branch P.W.5. On 12.12.2014, the Andhra bank,
Nagullanka branch manager P.W.5 addressed a letter Ex.P.27 to the
ExecutiveDirectorS.C.CorporationSociety,KakinadaP.W.3 communicating that they are willing for sanction of financial assistance to
P.W.2 and the other beneficiaries and gear up the units immediately after receipt of subsidy from S.C. Corporation.
Further, the evidence of the Executive Director of S.C.
Corporation Society P.W.3 and the evidence of then Assistant Manager,
Andhra bank, Nagullanka branch P.W.7 positively reveal that the accused being the branch manager Andhra Bank, Nagullanka branch addressed a letter Ex.P.11 to P.W.3 informing their willingness for sanction of financial assistance to the complainant P.W.2 for purchasing Krushi Tractor and sought to release subsidy to the complainant at the earliest to ground loan.Applicationform,interview-cum-appraisalform,composite agreement property statement, consent letter and letter of sanction
Dt.30.5.2015 in the file Ex.P.30 are containing the hand writings and signatureoftheaccusedandthattheaccusedattendingfor documentation on 30.5.2015.
In view of this, the evidence of P.Ws.2 to 7 is corroborated with each other and emphatically divulge that the complainant P.W.2 applied on-line to sanction a loan for purchasing a power tiller (Krushi
Tractor) and he was selected by the selection committee as eligible for the financial assistance under the scheme of SCAP 2014-2015 in accordance with the resolution Ex.P.22 passed by the committee members and that
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 19 the then Executive Director of Schedule Caste Corporation Society,
Kakinada P.W.3 accorded administrative sanction and issued proceedings
Ex.P.16 and Ex.P.16-A for sanction of an amount of Rs. 2 lakhs to P.W.2 towardstotalunitcostandthesamewascommunicatedtothe complainant P.W.2, Mandal Parishad Development Officer P.W.4 and the
BranchManager,AndhraBank,NagullankabranchP.W.5andon 12.12.2014, P.W.5 addressed a letter Ex.P.27 to P.W.3 explicating their willingness for sanction of financial assistance to P.W.2 and the other beneficiaries and after his transfer, the accused being the branch manager Andhra Bank, Nagullanka branch addressed a letter Ex.P.11 to
P.W.3 informing their willingness for sanction of financial assistance to the complainant P.W.2 for purchasing Krushi Tractor and sought to release subsidy to the complainant to ground loan and later the accused attended for documentation on 30.5.2015.
13.The evidence of the complainant P.W.2 and the contents of the complaint Ex.P.1 consistently reveal that he was approaching the accused persistently for the loan amount and the accused informed him in the month of February, 2015 that the loan was under process and on 11.6.2015 the accused asked him to furnish quotation for purchasing a
Krushi Tractor from the showroom and demanded a bribe of Rs.20,000/- to release the loan amount and he expressed his inability to give bribe as demanded by him and the accused did not heed his requests. He was not willing to give illegal gratification to the accused as demanded by him and that he got secured the telephone number of the Anti Corruption Bureau
Authority and complain the same to the Inspector of Anti Corruption
Bureau through telephone and he asked him (P.W.2) to complain to the
Central Bureau of Investigation officials and furnished phone number and
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 20 that he made a phone call between 7.00 to 8.00 p.m on 11.6.2015 and informed to the Superintendent of Police, Central Bureau of Investigation,
Visakhapatnam about demanding of illegal gratification by the accused to sanction of bank apportionment and release the loan amount sanctioned by the Schedule Caste Corporation, and the Superintendent of Police communicated him (P.W.2) that he will be sent raid party to Amalapuram.
Later, he received a phone call between 7.00 to 8.00 a.m on 12.6.2015 from the constable of CBI and met the Inspector of Police, CBI P.W.11 at the head post office, Amalapuram.He narrated sanction of loan and demanding of bribe by the accused to release the loan amount and gave complaint Ex.P.1 to him against the accused in the presence of the witnesses.
14.Further, the evidence of P.W.1, P.W.2, P.W.8, P.W.11 and the contents of pre trap proceedings Ex.P.13 and FIR Ex.P.31 positively reveal that on 12.06.2015 at 9.30 a.m, the Inspector of Police, C.B.I, P.W.11 received the written complaint Ex.P.1, copy of proceedings of the District
Collector/Chairman,ScheduleCasteServiceCo-OperativeSociety
Limited Ex.P.16 and copy of the letter of willingness (Ex.P.11) issued by the branch manager (accused), Andhra Bank, Nagullanka branch Ex.P.12 from P.W.2 at Inspection Quarters, Head Post Office and caused discrete enquiries about the antecedents of the accused and then sent copy of the complaint Ex.P.1 to the Superintendent of Police, CBI, Visakhapatnam through E-mail and the Superintendent of Police, CBI, Visakhapatnam instructed him to lay trap to hold the accused red-handedly while demanding and accepting bribe of Rs.20,000/- from P.W.2.P.W.11 secured the presence of Assistant Divisional Manager, United India
Insurance Company Limited, Tadepalligudem P.W.1 and security officer,
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 21
Oil and Natural Gas Corporation Limited, Rajahmundry Bitra Ramesh
Kumar (L.W.8) to act as independent witnesses.He introduced P.W.2 to them (P.W.1 & L.W.8) and made known the complaint Ex.P.1 to them.
They perused the complaint Ex.P.1 thoroughly and ascertained the substance from P.W.2 and obtained certain clarifications from him and signed in the complaint Ex.P.1.P.W.11 received information that a case against the accused was registered by the Dy. Superintendent of Police,
CBI, Visakhapatnam P.W.8 in R.C.No.07(A)/ 2015 for the offence U/Sec. 7 of Prevention of Corruption Act, on the basis of scanned copy of the complaint Ex.P.1.P.W.11 got demonstrated the chemical reaction between sodium carbonate solution and phenolphthalein powder to P.W.2 and mediators (P.W.1 and L.W.8) through his staff and when sodium carbonate solution comes into contact with phenolphthalein powder, the colour of the solution turns into pink and they monitored the same.P.W.2 attherequestofP.W.11gaveanamountofRs.20,000/-inthe denomination of Rs.1000/- notes twenty (20) in number to lay a trap.The witness Bitra Ramesh Kumar (L.W.8) counted the said amount of
Rs.20,000/- and noted down the serial numbers of the currency notes.
P.W.11 got applied phenolphthalein powder to the currency notes of
Rs.20,000/- through the constable Suresh Stalin and got kept the same in his left side shirt pocket. P.W.11 cautioned P.W.2 not to touch the tainted currency notes till the accused demanded him to give the amount.P.W.11 also instructed P.W.2 to give signal to them by moving hand over his hair as soon as the accused demands and accepts bribe of Rs.20,000/- from him.P.W.11 reduced all the proceedings into writing under pre trap proceedings Ex.P.13.They all signed in the pre trap proceedings Ex.P.13.
The evidence of P.W.1, P.W.2, P.W.11 and the contents of
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 22 post trap proceedings Ex.P.14, rough sketch for the scene of offence
Ex.P.29 and search list Ex.P.41 further reveal that P.W.2 alongwith P.W.1 proceeded to the Andhra bank, Nagullanka branch on his motor cycle.
P.W.11, his team members and the other independent witness (L.W.8) followed them by two four wheelers.P.W.2 and the witness P.W.1 reached the bank at 2.30 p.m and went into the bank.P.W.11, his team and others were waiting at the vicinity of the bank.The accused was not available in the bank and he went to take lunch and that the complainant
P.W.2 and the witness P.W.1 were waiting in the branch.The accused came to the bank after 15 minutes and asked them to wait for 10 minutes.
The accused after some time called for P.W.2 and that the complainant
P.W.2 along with P.W.1 went into the accused cabin and introduced P.W.1 to him as his uncle.P.W.1 requested the accused to release the loan amount to the complainant P.W.2 and that the accused informed them that the loan amount will not be released without credit the subsidy amount from the S.C. Corporation and then gave assurance that he will be provided a personal loan of Rs. one lakh to P.W.2.The accused asked
P.W.2 to send away P.W.1 from his cabin, by signs and that P.W.1 came out from his cabin.The accused asked P.W.2 whether he brought the amount as demanded by him and that P.W.2 took out the tainted currency notes from his left side shirt pocket and gave to the accused.The accused received and counted the said currency notes and kept the same in the right side table drawer.P.W.2 came out from the cabin of the accused and gave pre arranged signal to P.W.11.P.W.11 along with his team and other mediator (L.W.8) rushed into the cabin of the accused and revealed their identity and then P.W.11 asked the accused whether he demanded and accepted bribe from P.W.2 and he reduced what was
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 23 stated by the accused into writing under post trap proceedings.Both the hand fingers of the accused were subjected to phenolphthalein test and the resultant solutions turned into pink colour and those solutions were collected into separate bottles (M.Os.1 and 2) and the said bottles were sealed and labelled with their signatures.The tainted currency of
Rs.20,000/- was amassed from the right side table drawer of the accused and the numbers of those currency notes were compared with the numbers of the notes noted down in the pre trap proceedings and the same were tallied and that the said tainted currency notes of Rs.20,000/- (M.O.4) were seized.The portion of surface of the post card on which the tainted currency was kept in the right side table drawer was subjected to phenolphthalein test and the resultant solution turned into pink colour and the said solution was collected into a separate bottle (M.O.3) and the said bottle was sealed and labelled with their signatures.P.W.11 enquired
P.W.1, P.W.2 and the accused and then reduced all those proceedings into writing under post trap proceedings Ex.P.14 and prepared rough sketch Ex.P.41 for the scene of offence.P.W.11 arrested the accused and conducted search at his residential premises and then produced the accused before the court on 13.6.2016 for judicial remand.
In order that the evidence of P.W.1, P.W.2, P.W.8 and P.W.11 is corroborated and positively divulge that the accused being the branch manager, Nagullanka branch demanded P.W.2 a bribe of Rs.20,000/- to sanction of bank apportionment and release the amount towards subsidy loan sanctioned for the financial assistance to purchase a power tiller under the scheme of Schedule Caste Action Plan (SCAP) 2014-2015 and
P.W.2 was not willing to give illegal gratification to the accused as demanded by him and that he gave written complaint Ex.P.1 against the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 24 accused and P.W.11 caused enquiries about the antecedents of the accused and decided to lay a trap to hold the accused red handedly while demanding and accepting bribe of Rs.20,000/- from P.W.2 and then
P.W.11 got secured P.W.1 and other independent witness (L.W.8) to act as mediators and P.W.11 got demonstrated the chemical reaction between sodiumcarbonatesolutionandphenolphthaleinpowdertothe complainant P.W.2 and mediators (P.W.1 & L.W.8) through his staff and
P.W.11 got applied phenolphthalein powder to the currency notes of
Rs.20,000/- M.O.4 which are given by P.W.2 through the constable and a trap was laid on the accused and caught hold the accused red handedly in the presence of the independent witnesses and seized the tainted currency which was received and kept in the right side table drawer by the accused and both the hands of the accused and the portion of surface of the post card on which the tainted currency was kept in the right side table drawer of the accused were subjected to phenolphthalein test and all the resultant solutions turned into pink colour were collected into separate bottles M.Os.1 to 3 and the said bottles were sealed and labelled with their signatures respectively.
15.Further, the evidence of the Dy. Superintendent of Police,
CBI, Visakhapatnam P.W.12 and the contents of C.F.S.L.Report Ex.P.43 positively reveal that he received the case file from P.W.8 for further investigation.On 26.6.2015, he got sent the resultant solution and wash bottles M.Os.1 to 3 to the C.F.S.L. Hyderabad for chemical analysis and to give report. The Assistant Director, Central Forensic Science Laboratory,
Hyderabad examined the solutions and washes and gave report Ex.P.43 announcing that he detected phenolphthalein in the said solutions and washes (M.Os.1 to 3).P.W.12 examined P.Ws.1 to 8, P.W.9 and Bitra
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 25
Ramesh Kumar (L.W.8) and recorded their statements under section 161
Cr.P.C and collected all the documents from the concerned and he after completion of the investigation, laid the charge sheet against the accused.
16.It is contended by the accused through his counsel in the memorandum of arguments and also in the written statement filed U/Sec.
243 (1) Cr.P.C that he did not commit any offence as alleged by the prosecution and he is falsely implicated in this case.He did not demand and accept any illegal gratification from the complainant P.W.2 to release the amount towards subsidy loan sanctioned under self employment programme.He being public servant did not commit any criminal misconduct.The evidence of P.W.1 and the evidence of the complainant
P.W.2 is not corroborated with each other and as per the evidence of
P.W.2, the accused informed them that the loan amount will not be released without crediting the subsidy amount from S.C. Corporation and whereas, P.W.1 has stated in his evidence that the accused informed that he received instructions from the Mandal Development Officer to stop the scheme loans and he is not in a position to provide scheme loan to the complainant and that their evidence is not liable to be considered for proof of the prosecution case.The charges framed against the accused are groundless and there is no pending work on the table of the accused pertaining to the loan sanctioned to P.W.2 on the date of the trap.Loan amount could not be released to the beneficiary unless subsidy amount is credited into his account and subsidy amount was not credited into the account of P.W.2 on the date of the trap and that the branch manager could not release the loan amount to P.W.2 and the same was reveal in the evidence of P.W.3, P.W.4, P.W.5, P.W.7 and P.W.9 and further more,
P.W.2 did not remit the margin money to release the loan amount and that
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 26 the allegations that the accused demanded bribe from P.W.2 to release the loan amount are not tenable.The accused is an innocent and all the allegations made by P.W.2 in the complaint Ex.P.1 are deceitful and fallacious and the accused never demanded the complainant P.W.2 to give bribe to release the loan amount.The wife and mother of the complainant are the members of Kanaka Durga Dwacra and self help group and the Andhra Bank, Nagullanka branch sanctioned a loan of
Rs.1,20,000/- to Kanaka Durga Dwacra and self help group and an amount of Rs.20,000/- out of the loan amount was given to Lakshmi tulasi, wife of the complainant and the remaining amount was taken by the other members and the wife of the complainant P.W.2 was the secretary of Kanaka Durga Mahila Sakthi Sangham as per the loan documents
Exs.X.1, X.2, X.3 and X.4 and the said loan became Non Performing Asset on 30.09.2011 and whenever the self help groups are failed to discharge the loan amounts, the bank will not provide fresh loans to the members or their family members and the same was reveal in the evidence of P.W.5.
The accused informed P.W.2 to make arrangements to clear the dues relating to Kanaka Durga Mahila Sakthi Sangham loan account for release the loan amount sanctioned to him subsequent to release the subsidy amount by S.C. Corporation and that the complainant P.W.2 bore grudge against the accused and hatched a plan to trap the accused.The accused after assuming the charge, recovered outstandings in N.P.A.
Loan Accounts at large scale and that many borrowers in the village are envious towards the accused.
Further, it is contended by the accused through his counsel in the memorandum of arguments and also in the written statement that in the rural branches, it is common to the branch managers to receive cash
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 27 from the customers towards deposit in saving bank accounts or towards installments of loans and to prepare debit and credit vouchers.The accused being the branch manager, several times received cash from the customers towards deposits and installments of the loans and prepared debit and credit vouchers.Cash received vouchers Exs.D.6 and D.7 and credit transfer vouchers Exs.D.8 and D.9 are prepared by the accused.
The accused even on 12.6.2015, received cash from a customer and prepared voucher Ex.D.6 to credit the amount and the same was reveal in the evidence of P.W.7.P.W.2 along with P.W.1 entered into the chambers of the accused to repay the loan amount due by his wife towards Dwacra self help group Account and gave the amount of Rs.20,000/- to the accused towards the loan amount due by his wife and the accused asked
P.W.2 about the loan pass book to make entries and P.W.2 informed that the pass book was in his motor cycle and went away saying that he will brought the pass book to make entries and that the accused kept the amount in the table drawer to safe guard and later, P.W.2 along with the
CBI Officials entered into his chambers and got falsely trapped him. The accused received the said amount believing that it was given towards the loan amount payable by the wife of P.W.2 and that it cannot be termed as bribe amount and P.W.2 implicated him in a false trap and the post trap proceedings have not been prepared in his presence and the contents mentioned in the post trap proceedings are not correct.The evidence of
P.W.1, P.W.2 and P.W.11 is notcorroborated with each other for demanding and receiving bribe of Rs.20,000/- from P.W.2 and their evidence is suffered from infirmities and the prosecution miserably failed to prove that the accused accepted money voluntarily, knowing it to be bribe.The evidence of D.W.1 and D.W.2 reveal that P.W.2 paid the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 28 amount to the accused towards loan amount due by his wife.Mere possession and recovery of the currency notes from the accused shall not bring home the offence of criminal misconduct and absence of the demand and acceptance accords benefit of doubt to the accused.The prosecution did not adduce substantial evidence to prove its case and the accused did not commit any offence as alleged by the prosecution and that the accused is liable to be acquitted and relied upon the decisions reported in i) AIR 1979 (SC) at page no.1408;ii) 2009 (2) SCC (Cri) at page
No.1; iii) 1992 SCC (Crl.) at page No.290; iv) 2002 (10) SCC at page No.371; v) 2006 (2) ALT (Crl.) at page No.478 (AP) and vi) Crl.Appeal No.31/2009 before the
Hon’ble Supreme Court of India Dt.14.09.2015;
i)In the decision Suraj Mal … Appellant Vs., the State … Respondent reported in AIR 1979 (SC) at page No.1408, our Hon’ble Supreme Court held that “mere recovery of money divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable”.
ii)InthedecisionC.M.GirishBabu…AppellantVs.,C.B.I.Cochin… Respondent reported in 2009 (2) SCC (Cri) at page No.1, our Hon’ble Supreme Court held that “mere recovery by itself cannot prove the charge of the prosecution againstthe accused, in the absence of any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe. The premise tobe established on the facts for drawing the presumption is that there was payment or acceptance of gratification”.
iii)In the decision Som Prakash … Appellant Vs., State of Punjab … Respondent, reported in 1992 SCC (Crl.) at page No.290, our Hon’ble Supreme Court held that “the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellantbeingunbelievable,theconvictionofthe appellant cannot be sustained”.
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 29 iv)In the decision Punjab Rao … Appellant Vs., State … Respondent, reportedin2002 (10) SCC at page No.371, our Hon’ble Supreme Court held that “it is not sufficient to throw away the explanation offered by the accused in his statement U/Sec. 313 Cr.P.C on the ground that he did not offer the same explanation to the investigation officer.The accused is not required to establish hisdefencebyprovingbeyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.
v)In the decision Dr.Navarathan Singh … Appellant Vs., State of A.P … Respondent, reported in 2006 (2) ALT (Crl.) at page No.478 (AP), our
Hon’ble High Court held that the accused is not required to establish his
defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.
vi)In the decision P.Satyanarayana Murthy … Appellant Vs., the District Inspector of Police and another … respondents, made on 14.09.2015 in Crl. Appeal No.31/2009 before the Hon’ble Supreme Court of India, Our
Hon’ble Supreme Court held that mere possession and recovery of
currency notes from an accused without proof of demand would not establish an offence U/Sec. 7 as well as U/Sec. 13 (1) (d) (i) & (ii) of the Prevention of Corruption Act”.
17.ItiscontendedbythecomplainantthroughthePublic
Prosecutor that the evidence of P.Ws.1 to 9, 11 and 12 is corroborated with each other and reveal that the accused being the branch manager,
AndhraBank,NagullankaBranchdemandedandacceptedillegal gratification of Rs.20,000/- from the complainant P.W.2 to sanction and release the amount towards subsidy loan sanctioned for the financial assistant to purchase a power tiller under the scheme of Schedule Caste
Action Plan and committed criminal misconduct.The evidence of P.Ws.1 to 9, 11 and 12 reveal that the accused demanded P.W.2 a bribe of
Rs.20,000/- to release the loan amount and he was not willing to give
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 30 illegal gratification to the accused as demanded by him and that he gave written complaint Ex.P.1 against the accused to P.W.11 and that P.W.11 got secured P.W.1 and other independent witness (L.W.8) to act as mediators and a trap was laid on the accused and caught hold the accused red handedly in the presence of independent witnesses and seized the tainted currency which was received and kept in the right side table drawer by the accused and the Assistant Director, Central Forensic
Science Laboratory, Hyderabad detected phenolphthalein in the resultant solutions and washes.The accused being the branch manager is functus officio for disbursing the loan amount to P.W.2 under S.C & S.T.
Corporation Loan Scheme.A person who receives gratification as a motive or reward for doing what he does not intend or is not in a position to do or has not done, comes within the expression of section 7 of
P.C.Act.The accused issued willing letter Ex.P.11 for sanction and release the loan amount to the complainant P.W.2 and that it is not reasonable to consider the contentions of the accused that P.W.2 is not eligible for the loan amount till his wife and mother are discharged the loan amount due to the bank.If the accused received the tainted currency of
Rs.20,000/- from P.W.2 towards the loan amount due by his wife, he has to inform the same to the recovery officer D.W.2 but, his evidence is not reveal the same and that the contentions of the accused are not tenable.
The evidence of P.W.7 is reveal that he was in the cash counter on the date of the trap and that there is no necessity to the accused to receive amount from P.W.2 without asking him to pay at the cash counter and the same itself reveal that the accused demanded and accepted a bribe of
Rs.20,000/- from P.W.2 to release the loan amount.The prosecution proved the guilt of the accused beyond all reasonable doubt and that the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 31 accused is liable to be punished for the offences U/Sec. 7 and 13 (2) r/w.
Sec.13 (1) (d) of Prevention of Corruption Act and relied upon the decisions reported in i) Crl. Appeal No.232/2006 before the Hon’ble Supreme
Court of India Dt.25.11.2010; ii) 2004 Crl. Law Journal (SC) at page No.2040 ; iii) 2004 (3) Crimes at page No.210 (SC); iv) 2001 (1) ALT (Crl.) at page No.298 (SC);
v) AIR 1988 SC at page No.696; vi) 2004 Crl. Law Journal (SC) at page No.620;
i)In the decision C.M.Sharma … Appellant Vs., State of A.P. … respondent made on 25.11.2010 in Crl. Appeal No.232/2006 before the Hon’ble SupremeCourtofIndia,ourHon’bleSupremeCourtheldthat “corroboration of evidence of a witness is required when his evidence is not wholly reliable.Bribe isnot taken in public view and that there may not be any person who could see thegiving and taking of bribe and the appellant did not allow the shadow witness to bepresentin the chamber and that it is not necessary that the evidence of a reliable witness is necessarily to be corroborated by another witness”.
ii)In the decision State of Andhra Pradesh … Appellant Vs., C.Uma Maheswara Rao and another … Respondents, reported in 2004 Crl.Law Journal at page No.2040 (SC), our Hon’ble Supreme Court held that “the premise to be established on the facts for drawing the presumption is that there was payment or accept of gratification.Once the said premise is established, the inference to bedrawnisthatthesaid gratification was accepted as motive or reward for doing orforbearing to do any official Act”.
iii)In the decision State of Andhra Pradesh … Appellant R.Jeeva Ratnam … Respondent, reported in 2004 (3) Crimes at page No.210 (SC), our
Hon’ble Supreme Court held that “the condition for drawing the
presumption is that, it should be proved that the accused has accepted or agreed to accept anygratification.Theconditionneednotbe satisfied only through direct evidence”.
iv)In the decision Madhukar Bhaskar Rao Joshi … Appellant Vs., State of Maharashtra … Respondent, reported in 2001 (1) ALT (Crl.) at page No.298(SC),ourHon’bleSupremeCourtheldthat“oncethe
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 32 prosecution established that gratification had been paid or accepted by a public servant, it is under a legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do any official Act. When a public servant admitted that certain amount was paid to him by a private party, he sought to explain that it was an amount otherwise payable to him and it was no gratification”.
v)In the decision Appabhai and another … Appellants Vs., State of Gujarat … Respondent, reported inAIR 1988 SC at page No.696, our Hon’ble SupremeCourt held that “the court while appreciating the evidence, mustnotattachundoimportancetominordiscrepancies.The discrepancies which do not shake the basic version of the prosecution case may be discarded”.
vi)In the decision State of Andhra Pradesh … Appellant Vs., Vasudeva Rao … Respondent, reported in 2004 Crl. Law Journal (SC) at page No.620, our
Hon’ble Supreme Court held that “When the receipt of money is
admitted, it is forthe accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operativ e”.
18.ThecontentsofApplicationformDt.30.5.2015, interview-cum-appraisalformDt.30.5.2015,compositeagreement
Dt.30.5.2015, property statement, consent letter Dt.30.5.2015 and letter of sanction Dt.30.5.2015 in the file Ex.P.30 consistently reveal that the accused attending for documentation on 30.5.2015. The said documents are containing the hand writings and signatures of the accused.P.W.7 has stated in his evidence that the contents in the said documents are in the hand writing of the accused and the signatures in those documents are relating to the accused.The evidence of P.W.2 and the contents of the complaint Ex.P.1 reveal that on 11.6.2015, the accused asked him to furnish quotation for purchasing a krushi tractor from the show room and demanded a bribe of Rs.20,000/- to release the loan amount and he expressed his inability to give bribe as demanded by him and the accused
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 33 did not heed his request.
Whenever the evidence of P.W.2, P.W.7 and the contents of the documents Application form Dt.30.5.2015, interview-cum-appraisal formDt.30.5.2015,compositeagreementDt.30.5.2015,property statement, consent letter Dt.30.5.2015 and letter of sanction Dt.30.5.2015 in the file Ex.P.30 reveal that the accused attending for documentation on 30.5.2015 and whenever the evidence of P.W.2 and the contents of complaint Ex.P.1 reveal that the accused asked him to furnish quotation for purchasing a Krushi Tractor and demanded a bribe of Rs.20,000/- to release the loan amount, it is not reasonable to consider the contentions of the accused raised in the written statement and in the memorandum of arguments that there is no pending work to be attended by him pertaining to the loan sanctioned to P.W.2 and demanding of P.W.2 to pay bribe for doing any official act does not arise and he did not demand P.W.2 a bribe of Rs.20,000/- relating to sanction and release the loan amount.
Further, the evidence of P.W.3 and the contents of Exs.P.16 andP.16-AconsistentlyrevealthattheDistrictScheduleCaste
Corporation Service Society will be provided an amount of Rs. One lakh towards subsidy and the bank will be provided Rs.90,000/- towards loan and P.W.2 has to bear Rs.10,000/- towards beneficiary share, out of Rs.2 lakh in relation to the unit cost and the bank has to ground and gear up the unit.
19.Charge is not accusation in abstract and it is foundation of accusation.Charge is the first notice to the accused what prosecution intends to prove against him and of which he would have to clear himself.
It is precise formulation of specific accusation made against a person of
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 34 an offence alleged to have been committed by him.According to section 211 (2) Cr.P.C, if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.In order that it is not rational to consider the contentions of the accused that the charges framed against him are for some other purpose, but not for the purpose emerged in the evidence of prosecution.
The evidence of P.W.2, P.W.3 and P.W.7 positively reveal that the accused being the branch manager, Andhra Bank, Nagullanka branch addressed a letter Ex.P.11 to P.W.3 informing their willingness for sanction of financial assistance to him for purchasing Krushi Tractor as per the administrative sanction accorded under the proceedings Exs.P.16 and
P.16-A and the accused attended for documentation on 30.05.2015 and later the evidence of P.W.2 reveal that the accused demanded him a bribe of Rs.20,000/- for sanction of bank apportionment and release the loan amount sanctioned by the Schedule Caste Corporation.
20.Further, as per the evidence of P.W.3, P.W.5 and P.W.7, on 12.12.2014, P.W.5 addressed a letter Ex.P.27 to P.W.3 communicating that they are willing for sanction of financial assistance to P.W.2 and the other beneficiaries and ground the units immediately after receipt of subsidy from S.C. Corporation.The accused being the branch manager addressed a letter Ex.P.11 Dt.3.2.2015 to P.W.3 informing their willingness forsanctionoffinancialassistancetothecomplainantP.W.2for purchasingKrushiTractorandsoughttoreleasesubsidytothe complainant at the earliest to ground loan.
Whenever the accused addressed a letter Ex.P.11 to P.W.3 informing their willingness for sanction of financial assistance to the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 35 complainant P.W.2 under the scheme of Schedule Caste Action Plan and sought to release subsidy to the complainant to ground loan, it is not sensible and justifiable to consider the contentions of the accused that a loan sanctioned to Kanaka Durga Mahila Sakthi Sangham represented by the wife of the complainant being Secretary was became Non Performing
Asset on 30.09.2011 and whenever the self help groups are failed to discharge the loan amounts, the bank will not provide fresh loans to the members or their family members and on that reason, it is not possible to sanction a fresh loan to P.W.2 and that he informed P.W.2 to make arrangements to clear the dues relating to Kanaka Durga Mahila Sakthi
Sangham loan account for release the loan amount sanctioned to him subsequent to release the subsidy amount by S.C. Corporation and that the complainant P.W.2 bore grudge against him and hatched a plan to trap him and he gave the said amount of Rs.20,000/- towards installment of a loan due by his wife.
Further, the Chief Manager, Andhra bank, Zonal office P.W.9 has stated in his evidence that the branch manager has to verify whether there are existing loans relating to the selected beneficiaries or their relatives before issuing willing letters to sanction loans in accordance with the internal bank procedure.P.W.5 the then branch manager, Andhra bank, Nagullanka branch has stated in the cross examination that the oral instructions of the Zonal Officer not to sanction fresh loans till the loans which are became Non Performing Assets are recovered, are not for the loans provided under the scheme of B.C, S.C and S.T. Corporations.
21.The evidence of P.W.1, P.W.2 and P.W.11 consistently reveal that the accused came to the bank while P.Ws.1 and 2 are waiting in the
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 36 branch and the accused after some time called for P.W.2 and that P.W.2 along with P.W.1 went into the accused cabin and introduced P.W.1 to him as his uncle. P.W.1 requested the accused to release the loan amount to the complainant P.W.2 and that the accused informed impediment to release the loan amount and then gave assurance to provide a personal loan of Rs. One lakh to P.W.2 and then asked P.W.2 to send away P.W.1 from his cabin by signs and that P.W.1 came out from his cabin.
P.W.2 has stated in his evidence that the accused informed them that the loan amount will not be released without credit the subsidy amount from the S.C. Corporation and whereas, P.W.1 has stated in his evidence that the accused informed them that he received instructions from the Mandal Development Officer to stop the scheme loans and that he is not in a position to provide scheme loan to the complainant.Except this facet, there are no discrepancies in the evidence of P.Ws.1 and 2 about their going to the chamber of the accused and requesting him to release the loan amount sanctioned to P.W.2 and informing them by the accused to sanction a personal loan to P.W.2 and asking P.W.2 by the accused to send away P.W.1 from the chambers by signs.The evidence of P.Ws.1 and 2 is not suffered from any patent or latent infirmities and consistently divulge that the accused asked P.W.2 to send away P.W.1 from the chambers by signs and that P.W.1 came out from his chambers.
While appreciating the evidence, it must not attach undo importance to minor discrepancies and the discrepancies which do not shake the basic version of the facts and circumstances of the case may be discarded.
22.Further, the evidence of P.W.2 reveal that P.W.1 went away from the chambers of the accused and then the accused asked him
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 37 whether he brought the amount as demanded by him and that P.W.2 took out the tainted currency notes from his left side shirt pocket and gave to the accused. The accused received and counted the said currency notes and kept the same in the right side table drawer. When a witness is wholly reliable, no corroboration is necessary and seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result.Whenever the accused asked P.W.2 to send away P.W.1 from his chambers by signs and thereafter demanded and received bribe ofRs.20,000/- from P.W.2, it shows that the accused voluntarily accepted the bribe and it is not necessary that the evidence of P.W.2 is necessary to be corroborated by another witness.
In manner of that, the accused demanded and received
Rs.20,000/- from P.W.2 relating to the loan sanctioned for the financial assistance under the scheme of Schedule Caste Action Plan (SCAP) and he voluntarily accepted the money from P.W.2 knowing it to be bribe and that it is not reasonable to consider the contentions of the accused that
P.W.2 along with P.W.1 came to his chambers and gave Rs.20,000/- towards installment of the loan amount due by his wife and went away saying that he will be brought pass book kept in his motor cycle.
Further, presumption under section 20 of the P.C. Act would be drawn against the accused to the effect that he received tainted amount for doing some official favour when prosecution is proved that there is voluntary acceptance of tainted amount by the accused.
23.The accused got examined the existing branch manager,
Andhra Bank, Nagullanka branch, P.Gannavaram and the then recovery officer, Andhra Bank, Amalapuram as D.Ws.1 and 2 for proof of his
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 38 contentions.
As per the evidence of D.W.1, Kanaka Durga Mahila Sakthi
Sanghamconsisting of 10 members submitted application Ex.X.1 to sanction a loan under the scheme of S.H.G.N.F and an amount of
Rs.1,20,000/- was sanctioned only to six (6) members of Kanaka Durga
Mahila Sakthi Sangham out of ten (10) members and Kamuju Lakshmi
Tulasi, wife of the complainant was the Secretary of the group and the said loan became Non Performing Asset on 30.9.2011. Further, as per the evidence of D.W.2, he being recovery officer assisting the branch managersofAndhrabank,Nagullankabranch,Mannepallibranch,
Thatipaka branch, Amalapuram branch and Moberi branch for recovery of the Non Performing Assets (accounts).On 12.6.2015, he assisted the accused from 10.30 a.m to 2.00 p.m for recovery of the N.P.A. Accounts and then they returned to the Andhra bank, Nagullanka branch. While he and the accused were discussing about recovery of N.P.A accounts, two persons came to the chambers of the accused to pay the loan amount and that he came out from the chambers of the accused.Later, while he and the accused were in the chambers of the accused, CBI Officials entered into his chambers and asked him to sit in the cabin of sub manager and accordingly, he sat there.Except this, the evidence of
D.W.1 or D.W.2 is not reveal that P.W.2 alongwith P.W.1 came to the chambers of the accused and P.W.2 paid Rs.20,000/- towards installment of a loan amount due by his wife.
D.W.2 further stated in the cross examination that the loan account of Kanaka Durga Mahila Sakthi Sangham was one of the N.P.A.
Accounts entrusted to him for recovery.He or the branch manager
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 39 (accused) did not approach for recovery of the loan amount due by the said Kanaka Durga Mahila Sakthi Sangham.He was sending particulars of recoveries in N.P.A. Accounts entrusted to him, to the Zonal Office.He and the branch manager (accused) did not make any efforts for recovery of the loan amount due by Kanaka Durga Mahila Sakthi Sangham.The branch manager should not receive amounts towards loan payments and he has to ask the lenders/customers to pay the amount in the cash counter.
Whenever, D.W.2 came to the branch to assist the accused for recovery of N.P.A. Accounts and the loan account of Kanaka Durga
Mahila Sakthi Sangham was one of the N.P.A. Accounts entrusted to
D.W.2 for recovery and he was sending particulars of recoveries in N.P.A.
Accounts entrusted to him to the Zonal Office as per the evidence of
D.W.2 and whenever D.W.2 came out from the chambers after coming
P.W.2 along with P.W.1 to the chambers of the accused to pay amount towards the loan account of Kanaka Durga Mahila Sakthi Sangham and paid an amount of Rs.20,000/- towards the installment of the said loan, it is the responsibility and accountability of the accused to introduce P.W.2 and inform about payment of the said amount of Rs.20,000/- towards the loan account of Kanaka Durga Mahila Sakthi Sangham to D.W.2, since
D.W.2 has to send particulars of recoveries in N.P.A. Accounts entrusted to him to the Zonal Office.The evidence of D.W.2 positively reveal that while he was discussing with the accused about recovery of N.P.A.
Accounts in the chamber of the accused, P.W.2 along with P.W.1 entered into the chamber and he came out from the chamber and again he went into the chamber of the accused after leaving P.W.2 from the chamber. If theaccusedreceivedamountofRs.20,000/-fromP.W.2towards
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 40 recovery of the said loan account of Kanaka Durga Mahila Sakthi
Sangham, which cause is precluded or prevented the accused from his responsibility to introduce P.W.2 and inform about payment of the said amount of Rs.20,000/- towards the loan account of Kanaka Durga Mahila
Sakthi Sangham to D.W.2.The evidence of D.W.2 is not reveal that
P.W.2 paid amount towards the loan account of Kanaka Durga Mahila
Sakthi Sangham to the accused and that it is not reasonable and sensible to consider the evidence of D.W.2 that “the said tainted currency of
Rs.20,000/- M.O.4 paid to the accused towards the N.P.A. Account which was entrusted to him for recovery” and further, preparing of debit and credit vouchers Exs.D.6 to D.9 by the accused alone is not sufficient to infer and assume that he received tainted currency of Rs.20,000/- from
P.W.2 towards installment and not an illegal gratification in the absence of substantive evidence and the accused failed to establish that the amount of Rs.20,000/- was received from P.W.2 towards installment of a loan account due by the wife of P.W.2 and not an illegal gratification relating to the loan sanctioned for the financial assistant under the scheme of
Schedule Caste Action Plan and that the facts in the reported cases on which he relied upon and the facts in this case are not similar and the decisions in the said reported cases are not applicable to his case.
24.In view of all these reasons, I feel that the evidence of P.Ws.1 to 9, 11 and 12 is corroborated with each other and positively reveal that the accused being the branch manager, Nagullanka branch demanded
P.W.2 a bribe of Rs.20,000/- relating to subsidy loan sanctioned to him for the financial assistance to purchase a power tiller under the scheme of
Schedule Caste Action Plan (SCAP) 2014-2015 and P.W.2 was not willing to give illegal gratification to the accused as demanded by him and that he
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 41 gave written complaint Ex.P.1 against the accused and P.W.11 caused enquiries about the antecedents of the accused and got secured P.W.1 and other independent witness (L.W.8) to act as mediators and laid a trap on the accused and caught hold the accused red handedly in the presence of the independent witnesses and seized the tainted currency which was received and kept in the right side table drawer by the accused and that the accused being public servant demanded and voluntarily accepted illegal gratification of Rs.20,000/- from the complainant P.W.2 relating to the subsidy loan sanctioned to him under self employment programme and committed criminal misconduct.
This point is answered accordingly.
25.Point No.3:
Whethertheprosecutionprovedtheguiltoftheaccused beyond all reasonable doubt for the offences U/Sec. 7 and 13 (2) r/w. 13 (1) (d) of P.C. Act ?
In view of all the reasons conferred on the above point Nos.
1 and 2, I feel that P.W.10 being the General Manager is the competent authority to remove Scale-II and Scale-III Officers in Andhra Bank and he being the General Manager (Human Resource) received, perused and examinedthecopiesofFIR,statementsofwitnesses,pretrap proceedings, post trap proceedings, proceedings issued by the Schedule
Caste Corporation and all other material documents placed before him and applied his mind and accorded sanction to prosecute the accused and that the sanction order Ex.P.33 Dt.26.08.2015 is effectual and valid and further, the evidence of P.Ws.2 to 7 is divulge that the complainant
P.W.2 applied on-line to sanction a loan for purchasing a power tiller
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 42 (Krushi Tractor) and he was selected by the selection committee as eligible for the financial assistance under the scheme of SCAP 2014-2015 as per the resolution Ex.P.22 passed by the committee members and that the then Executive Director of Schedule Caste Corporation Society,
Kakinada P.W.3 accorded administrative sanction and issued proceedings
Ex.P.16 and Ex.P.16-A for sanction of an amount of Rs. 2 lakh to P.W.2 towards total unit cost in the form that the District Schedule Caste
Corporation Service Society will be provided an amount of Rs.one lakh towards subsidy and the bank will be provided an amount of Rs.90,000/- towards loan and P.W.2 has to bear Rs.10,000/- towards beneficiary share, out of Rs.2 lakh in relation to the unit cost and the bank has to ground and gear up the unit and the same was communicated to the complainant P.W.2, Mandal Parishad Development Officer P.W.4 and the
BranchManager,AndhraBank,NagullankabranchP.W.5andon 12.12.2014, P.W.5 addressed a letter Ex.P.27 to P.W.3 explicating their willingness for sanction of financial assistance to P.W.2 and the other beneficiaries and after his transfer, the accused being the branch manager Andhra Bank, Nagullanka branch addressed a letter Ex.P.11 to
P.W.3 informing their willingness for sanction of financial assistance to the complainant P.W.2 for purchasing Krushi Tractor and sought to release subsidy to the complainant to ground loan and later the accused attended for documentation on 30.5.2015 and further, the evidence of P.W.1, P.W.2,
P.W.8 and P.W.11 is positively reveal that the accused being the branch manager, Nagullanka branch demanded P.W.2 a bribe of Rs.20,000/- to sanction of bank apportionment and release the amount towards subsidy loan sanctioned for the financial assistance to purchase a power tiller under the scheme of Schedule Caste Action Plan (SCAP) 2014-2015 and
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 43
P.W.2 was not willing to give illegal gratification to the accused as demanded by him and that he gave written complaint Ex.P.1 against the accused and P.W.11 caused enquiries about the antecedents of the accused and decided to lay a trap to hold the accused red handedly while demanding and accepting bribe of Rs.20,000/- from P.W.2 and then
P.W.11 got secured P.W.1 and other independent witness (L.W.8) to act as mediators and P.W.11 got demonstrated the chemical reaction between sodiumcarbonatesolutionandphenolphthaleinpowdertothe complainant P.W.2 and mediators (P.W.1 & L.W.8) through his staff and
P.W.11 got applied phenolphthalein powder to the currency notes of
Rs.20,000/- M.O.4 which are given by P.W.2 through the constable and a trap was laid on the accused and caught hold the accused red handedly in the presence of the independent witnesses and seized the tainted currency M.O.4 which was received and kept in the right side table drawer by the accused and both the hands of the accused and the portion of surface of the post card on which the tainted currency was kept in the right side table drawer of the accused were subjected to phenolphthalein test and all the resultant solutions turned into pink colour were collected into separate bottles M.Os.1 to 3 and the said bottles were sealed and labelled with their signatures respectively.The evidence of the Dy.
Superintendent of Police, CBI, Visakhapatnam P.W.12 and the contents of
C.F.S.L. Report Ex.P.43 positively reveal that on 26.6.2015, he got sent the resultant solution and wash bottles M.Os.1 to 3 to the C.F.S.L.
Hyderabad for chemical analysis and to give report and the Assistant
Director, Central Forensic Science Laboratory, Hyderabad examined the solutions and washes and gave report Ex.P.43 announcing that he detected phenolphthalein in the said solutions and washes (M.Os.1 to 3)
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 44 and that the evidence of prosecution witnesses (P.Ws.1 to 12) is corroborated with each other and emphatically reveal that the accused beingpublicservantdemandedandvoluntarilyacceptedillegal gratification of Rs.20,000/- from the complainant P.W.2 relating to the subsidy loan sanctioned to him under self employment programme and committed criminal misconduct and the accused failed to prove and establish his contentions that he being the branch manager received the amount of Rs.20,000/- from P.W.2 towards installment of the loan amount due by the wife of P.W.2 and not as an illegal gratification and further the evidence of prosecution witnesses (P.Ws.1 to 12) is consistent and cogent and not suffered from infirmities and there is nothing in their evidence in the cross examination made them unworthy of credence.Truth always suffers from infirmity when projected through human process and as such while it is necessary that proof beyond reasonable doubt should be adduced, it is not necessary that it must be perfect and the discrepancy which do not go to the root of the matter and do not shake basic version of the witness cannot be annexed with undo importance and therefore the prosecution proved and established the guilt of the accused beyond all reasonable doubt for the offences under section U/Sec.7 and 13 (2) r/w.
Sec.13 (1) (d) of Prevention of Corruption Act and he is liable to be convicted.
This point is answered accordingly.
25.In the result, the accused is found guilty for the charges under section 7 and 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act framed against him and he is convicted under section 248 (2) Cr.P.C for the offences U/Sec.7 and 13 (2) r/w. Sec.13 (1) (d) of Prevention of Corruption
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 45
Act.
Typedtomydictationbythetypist,correctedand th day of February, 2018.
pronounced by me in open court, this the 28
I ADDL. SPL. JUDGE FOR CBI CASES
VISAKHAPATNAM
26.Heard the accused on the quantum of sentence under section 248 (2) Cr.P.C.
The accused has stated that he is suffering from ill health. His wife and children are depending upon him for their livelihood and there are none to look after them and they are unable to maintain themselves and he did not commit any offence as alleged by the prosecution and pleaded for mercy.
27.Taking into consideration, the facts and circumstances of the case, the nature of the offences, the period of the offences committed and the plea of the accused, I feel that the accused is not entitled for the benefits of the provisions of either under section 360 Cr.P.C or under probation of offenders Act and that sentenced the accused to suffer rigorous imprisonment for a period of three (3) years and to pay a fine of
Rs.5,000/- (Rupees five thousand only) in default to suffer simple imprisonment for a period of six (6) months for the offence under section 7 of Prevention of Corruption Act and further sentenced the accused to suffer rigorous imprisonment for a period of four (4) years and to pay a fine of Rs.5,000/- (Rupees five thousand only) in default to suffer simple
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 46 imprisonment for a period of six (6) months for the offence under section 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act.
28.The sentences imposed against the accused for the offences under section 7 of Prevention of Corruption Act and under section 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act are directed shall run concurrently in accordance with the provisions of section 31 Cr.P.C.
29.The period undergone being under trial prisoner by the accused if any shall be set of from the sentence of imprisonment imposed against him under section 428 Cr.P.C.
30.The accused is informed about the right to appeal against the
Judgment.He is also informed that if he has no means to engage an advocate to prefer appeal against the Judgment, he can make an application before the legal service authority concerned, for free legal aid.
31.M.Os.1 to 3 bottles containing resultant solution washes are ordered to be destroyed after the appeal time is over.
Further, M.O.4 cash of Rs.20,000/- (Rupees twenty thousand only) is ordered to be returned to P.W.2-Kamuju Durga rao after the appeal time is over.
Typed to my dictation by the typist, corrected and pronounced th day of February, 2018. by me in open court, this the 28
I ADDL. SPL. JUDGE FOR CBI CASES
VISAKHAPATNAM
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 47
Appendix of Evidence
NO. OF WITNESSES EXAMINED
FOR PROSECUTION:
P.W.1 (L.W.7) (mediator)K.Vivekananda Kumar
P.W.2 (L.W.1 ) (complainant)Kamuju Durga Rao
P.W.3 (L.W.2)Smt. Mavuri Jyothi (the then Executive Director of S.C.Corporation Society, Kakinada)
P.W.4 (L.W.3)Manda Prabhakara Rao (Mandal Parishad Development officer, P.Gannavaram Mandal)
P.W.5 (L.W.5)N.Krupa Rao (the then Branch Manager, Andhra Bank, Nagullanka branch)
P.W.6 (L.W.6)G.S.K.S.Satish (Section Writer in S.C.Corporation, Kakinada)
P.W.7 (L.W.9)U.Appala Raju (the then Assistant Manager, Andhra Bank, Nagullanka branch, East Godavari District)
P.W.8 (L.W.13)Ch.V.Narendra Deve (Dy. Superintendent of Police, CBI, Visakhapatnam) (registered FIR)
P.W.9 (L.W.4)Damaraju Vasanth Kumar (Chief Manager (P & D), Andhra Bank, Zonal Office, Kakinada)
P.W.10 (L.W.10)V.B.Bhagavathi (General Manager (H.R), Andhra Bank, Head Office, Hyderabad) (sanctioning authority)
P.W.11 (L.W.12)P.Srinivasa Rao (Inspector of Police, CBI, Visakhapatnam) (Trap Laying Officer)
P.W.12 (L.W.14)G. Sudhakar (Dy. Superintendent of Police, CBI, Visakhapatnam)
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 48 (Further Investigated and filed charge sheet)
FOR DEFENCE:
D.W.1Telu Durga Prasad (Branch Manager, Andhra Bank, Nagullanka Branch, P.Gannavaram Mandal, East Godavari District)
D.W.2Ranjith Balla (the then branch manager, Andhra Bank, Manepalli branch, East Godavari District)
DOCUMENTS MARKED
FOR PROSECUTION:
Ex.P.1:Written Complaint
Ex.P.2:Application submitted for sanction of loan
Ex.P.3:Beneficiary details.
Ex.P.4:Caste certificate relating to P.W.2
Ex.P.5:Income certificate relating to P.W.2
Ex.P.6:Copy of Aadhar card relating to P.W.2
Ex.P.7:Copy of the Secondary School Certificate relating to P.W.2
Ex.P.8:Copy of the household card relating to P.W.2
Ex.P.9:Residence Certificate relating to P.W.2
Ex.P.10:OrderofproceedingsissuedbyMandalParishad Development Officer, P.Gannavaram
Ex.P.11:letter addressed by the Branch Manager, Andhra Bank, NagullankabranchtotheExecutiveDirector, S.C.Corporation, East Godavari District Dt.3.2.2015
Ex.P.12:copy of the letter Ex.P.11 containing the signatures of the mediators
Ex.P.13:pre trap proceedings
Ex.P.14:post trap proceedings
Ex.P.15:note in R.C.No.S1/591/2014 prepared by P.W.3 and staff submitted to the District Collector/Chairperson for orders to sanction loans to the beneficiaries
Ex.P.16:Proceedings of the Collector/Chairman, District Scheduled caste Service Co-Operative Society Limited, East Godavari Dt.11.2.2015 issued by P.W.3
Ex.P.16-A: Format-1 received by P.W.3 on Dt.5.6.2015
Ex.P.17:Letter addressed by P.W.3 to the complainant Kamujula Durga Rao (P.W.2)
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 49
Ex.P.18:Format-1 on the back side of Ex.P.17
Ex.P.19:Guidelines issued by the Social Welfare (S.C.P-1) Dept Dt.31.12.2013
Ex.P.20:letter dt.23.12.2014 sent by P.W.4 to the Executive Director, S.C.Corporation, Kakinada.
Ex.P.21:Beneficiary details sent by P.W.4 to the Executive Director, S.C.Corporation, Kakinada.
Ex.P.22:Resolution in the self employment schemes book
Ex.P.23:Acknowledgment under which file relating to the sanction of financialassistanceunderS.C.A.P.2014-15andrelated correspondence and the register of attendance of Joint ScreeningSelectionCommittee2014-15MandalPraja Parishad,P.Gannavaramhandedovertothe Dy.Superintendent of Police, CBI, Visakhapatnam.
Ex.P.24:File containing page nos. 1 to 80 (L.D.No.10) collected from P.W.4 under Ex.P.23
Ex.P.25:List of selected beneficiaries sent to P.W.4 by bank manager, Andhra Bank, Nagullanka branch
Ex.P.26:List of selected beneficiaries in Ex.P.24
Ex.P.27:Letter for revalidation addressed by P.W.5 to the Executive Director, S.C.Corporation Society, Kakinada
Ex.P.28:Post card
Ex.P.29:Rough sketch for the scene of offence.
Ex.P.30:Entire loan file (L.D.No.22) containing page Nos. 1 to 25.
Ex.P.31:FIR in R.C.No.7(A)/2015 of CBI, Visakhapatnam
Ex.P.32:CopyofcircularNo.32Dt.6.5.2002specifiesaboutthe disciplinary,appellateandreviewingauthoritiesunder regulation-3 (g) (b) & (n) of Andhra Bank Officer Employees (Discipline and Appeal) Regulations, 1981 and also specifies about the competent authorities for according sanction for prosecution of the officers.
Ex.P.33:Sanction order Dt. 26.8.2015
Ex.P.34:Letter under which copy of the circular on guidelines for sanction and disbursement of loans to S.C & S.T. Candidates and extract of the manual of instructions were furnished to the CBI. Ex.P.35:Attested copy of the circular No.137, Ref No.28/01 Dt. 22.7.2010.
Ex.P.36:Attested copy of the extract of the manual of instructions
Ex.P.37:Letter Dt.29.6.2015 under which the manager, Andhra Bank, NagullankaBranch,C.A.Raohandedoveri)extractof
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 50
S.B.Account of (P.W.2); ii) extract of loan account of P.W.2; iii) Ex.P.27letteraddressedtoExecutiveDirector,S.C. Corporation Society and Ex.P.26 bank-wise list.
Ex.P.38:The extract of S.B. Account bearing No.072810100045879 of P.W.2.
Ex.P.39:The extract of loan account bearing No.072830100061363.
Ex.P.40:Copy of office order for transfer of the accused from Andhra Bank, Nagullanka branch, Kakinada Zone to Warangal Zone.
Ex.P.41:Search list
Ex.P.42:Covering letter Dt.1.7.2015 under which P.W.12 collected Exs.P.2 to P.11, P.15, P.16, P.16-A, P.19 and P.27 from Executive Director Smt. R.Anuradha
Ex.P.43:C.F.S.L. Report
FOR DEFENCE:
Ex.D.1:Statement of Savings Banks account No.072810100045879 in the name of P.W.2
EX.D.2:A portion in 161 Cr.P.C statement of P.W.2.
Ex.D.3:A portion in 161 Cr.P.C statement of P.W.2.
Ex.D.4:A portion in 161 Cr.P.C statement of P.W.2.
Ex.D.5:Copy of the cash remittance ledger containing the entry of transaction of cash remittance Dt. 12.6.2015
Ex.D.6:Twenty five (25) cash received vouchers containing the hand writings of the accused.
Ex.D.6-A:Cash received voucher Dt.17.3.2015 in Ex.D.6
Ex.D.6-B:Cash received voucher Dt.4.5.2015 in Ex.D.6.
Ex.D.6-C:Cash received voucher Dt.12.6.2015 in Ex.D.6.
Ex.D.6-D:Cash receipt dated 12.06.2016 in Ex.D.6.
Ex.D.7:Six (6) cash received vouchers containing the hand writings and signatures of the accused.
Ex.D.7-A:Cash received voucher Dt.7.4.2015 in Ex.D.7
Ex.D.8:Eighteen(18)credittransfervoucherscontainingthe handwritings and signatures of the accused.
Ex.D.9:Three(3)credittransfervoucherscontainingthehand writings of the accused.
Ex.D.10:Twenty nine (29) debit transfer vouchers containing the hand writings and signatures of the accused.
Ex.D.10-A: Debit voucher dated 12.06.2016 in Ex.D.10.
C.C.06/2016 I Addl. CBI Court, Visakhapatnam Dt.28.2.2018 51
Ex.D.11:A portion in 161 Cr.P.C statement of P.W.1.
Ex.D.12:A portion in 161 Cr.P.C statement of P.W.1.
Ex.D.13:A portion in 161 Cr.P.C statement of P.W.1.
Ex.D.14:A portion in 161 Cr.P.C statement of P.W.1.
DOCUMENTS OF WITNESSES:
Ex.X.1:Attested copy of entire loan file relating to loan account of KanakaDurgaMahilaSakthiSanghambearing No.072830100006038 with the certificate.
Ex.X.2:Attested copy of the statement of account with the certificate.
Ex.X.3:Certificate relating to confirm the loan account bearing No.072830100006038asNonPerformingAssetwith necessary certificate.
Ex.X.4:Certified copy of the documents pertaining to the S.B.A/c. bearing No. 072810011002373 relating to the Kanaka Durga Mahila Sakthi Sangham send for to the court by the then Branch Manager
MATERIAL OBJECTS MARKED
M.O.1:bottle containing right hand wash of accused
M.O.2:bottle containing left hand wash of accused
M.O.3:bottle containing the cotton swab wash of post card
M.O.4:Amount of Rs.20,000/-
Sd/ K. Siva Rama Krishna
I ADDL. SPL. JUDGE FOR CBI CASES
VISAKHAPATNAM
Order Record 2 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| CC/6/2016 | CBI, Visakhapatnam vs Vskondagorri omsi ravi kumar | 28 Feb 2018 | Judgement | Acquitted |
| CC/1/2009 | CBI, Visakhapatnam vs A1-B.S. Vasanth Kumar | 17 Nov 2017 | Judgement | Acquitted |
Frequently Asked Questions
How many cases has SRI K.SIVA RAMA KRISHNA handled?
SRI K.SIVA RAMA KRISHNA has handled 2 court orders since 2017 at CBI Court, Visakhapatnam.
What types of cases does SRI K.SIVA RAMA KRISHNA hear?
Based on available records, SRI K.SIVA RAMA KRISHNA primarily handles Criminal matters (Criminal Cases) at CBI Court, Visakhapatnam.
Where is SRI K.SIVA RAMA KRISHNA currently posted?
SRI K.SIVA RAMA KRISHNA is posted as PRINCIPAL CBI JUDGE at CBI Court, Visakhapatnam, Visakapatnam, Andhra Pradesh.
Are judgments by SRI K.SIVA RAMA KRISHNA available online?
Yes. 2 judgments by SRI K.SIVA RAMA KRISHNA are available on Legistro with full text, outcome, and sections cited.
Since when is SRI K.SIVA RAMA KRISHNA serving?
SRI K.SIVA RAMA KRISHNA has been serving at CBI Court, Visakhapatnam since 2017.
Case Types
Posting History
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Apr 2018 — May 2018PRINCIPAL CBI JUDGE
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Mar 2017 — May 2018I ADDITIONAL CBI JUDGE · 2 orders
Outcomes on Record
Other Judges at this Court