Poonam Vazirani, v. State Of Andhra Pradesh

ATHE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI CRIMINAL REVSION CASE No.1498 of 2017 ORDER:

This criminal revision case, under Sections 397 & 401 of the Code of Criminal Procedure, 1973 ('the Code', for short), is filed by the petitioner-A3 assailing the orders, dated 17.04.2017, of the learned II Additional Special Judge for CBI Cases, Visakhapatnam, passed in Crl.MP.No.245 of 2016 in CC.No.48 of 2010.

2.

I have heard the submissions of Sri T. Pradyumna Kumar Reddy, learned counsel for the petitioner-A3, and of Sri K. Surender, learned Special Public Prosecutor for CBI representing the respondent. I have perused the material record.

3.

At the outset, it is to be noted that the petitioner-A3 is facing trial in Calendar Case No.48 of 2010 (arising out of R.C.No.01(A)/ 2009-CBI) taken on file against the accused for the offences punishable under Sections 13(2) read with 13(1) (e) of the Prevention of Corruption Act, 1988 ['the PC Act', for brevity] and Section 109 of IPC. During the pendency of the said CC, the petitioner-A3 filed the afore-stated MP under Section 239 of the Code requesting to discharge her from the case. The said petition was resisted by the respondent-CBI. On merits and by the orders impugned in this revision, the learned Special Judge dismissed the petition of the petitioner-A3. Therefore, the petitioner-A3 is before this Court.

4.

The case of the petitioner-A3 in support of her request for discharge, in brief, is as follows:

The petitioner-A3 is the wife of A1 (Accused Officer). A2 is their daughter. She (A3) is facing prosecution in the above CC for the offence punishable under Section 109 IPC. It is alleged that the petitioner-A3 abetted

her husband-A1 in the commission of offences which he was alleged to have committed and, therefore, she is liable for the offence punishable under Section 109 of IPC. The marriage between the petitioner-A3 and A1 was performed about 33 years back. Her name was added as joint deposit holder to withdraw the monies free of legal hassles in the event of any unforeseen situation to wit demise of her husband-A1. It is a precautionary measure to safeguard the hard earned money of A1 for the future of the children. The joint savings bank account and fixed deposit accounts were opened under the category 'either or survivor'. That means if the first named holder cannot operate the accounts for any reason, the second named holder would be entitled to operate the account. Till such time, the second named holder has no role to play.

This was purely done to safeguard the amounts legally earned by A1, which are intended for the bright future of the children. Opening of such joint accounts by spouses is a common practice in this Country. There is no material to show that the petitioner-A3 instigated A1 to acquire the assets from resources disproportionate to the known sources of income of A1. There are no National Savings Certificates, policies of any kind and/ or investments in the name of the petitioner-A3. The job of A1 is a transferable job. The petitioner-A3 used to remain with the children at Mumbai. Therefore, and for the reasons stated, A1 opened the accounts in the joint names. This petitioner-A3 is a house wife. The bank records disclose that the depositors 1 & 2 referred to in the case of the prosecution were not opened afresh at Mumbai.

The said accounts were opened long time back by A1 even while he was working at earlier stations like Gwalior etcetera. None of the fixed deposits were made by means of cash on hand; and, the sums covered by the fixed deposits were transferred from savings bank accounts of A1. So far as item no.3 mentioned in the prosecution case, which is an account opened at Mumbai, it was a salary account of A1. In Crl.MP.No.

deposits/ amounts, that is, Rs.53,524/ - and gave clearance for all other accounts existing in the name of the petitioner along with her husband jointly. The first holder in whose name the deposit appears is the beneficial owner and the second deposit holder has no beneficial interest. The matter is purely guided inter se by the terms of agreement between the joint depositors. There is no mala fide intention on the part of the petitioner in lending her name to the above mentioned deposit. The petitioner-A3 never operated the accounts at any point of time. The material is too scarce to prove that the petitioner-A3 intentionally abetted A1/ a public servant in acquiring assets disproportionate to his known sources of income. There is no prima facie case against this petitioner for the alleged offence under Section 109 of the IPC.

The disproportionate assets case is only an offshoot of a trap case, which again is a result of a false and baseless trap. The trap laying officer became the investigating officer in the disproportionate assets case. In the trap case, by a judgment, dated 12.03.2015, the learned I Additional Special Judge acquitted A1. As the trap laying officer who became the investigating officer in the disproportionate assets case knows that the trap case is false and weak, he deliberately registered the disproportionate assets case, on 05.01.2009, against A1 and managed to become the investigating officer in the said later case and the case is intended to harass A1 and his family members. The trap laying officer cannot act as an investigating officer in the disproportionate assets case.

It clearly shows mala fide intention on his part and on the part of CBI and the same is against principles of natural justice. The investigating officer never supplied the copy of FIR to A1 on or before 05.01.2009 and the FIR was also not enclosed to the charge sheet. In the FIR, the accused officer was only named as an accused but at the time of filing of the charge sheet, the investigating officer included the names of this petitioner-A3 and A2 for no valid reasons and though they have not committed any offences and no evidence surfaced against them.

Special Court returned the charge sheet for explaining as to how and why the charge sheet is filed against A1 to A3 when A1 is the sole accused as per the FIR. There is no adverse material placed against the petitioner-A3. None of the listed witnesses spoke against the petitioner-A3. There is no prima facie case against the petitioner-A3. She was un-necessarily dragged into the case without any fault on her part. Therefore, she is entitled to be discharged. 5.

Per contra, the case of the CBI, in brief, is this: The crime was registered on the basis of a written complaint lodged by the 1st respondent- de facto complainant. During the investigation into that crime, A1 was caught red handed while demanding and accepting illegal gratification of Rs.1,50,000/ - from the said informant-complainant, for doing official favour. After completion of investigation in that crime, report was filed and it ended in acquittal. However, against the judgment of the special Court an appeal has been filed and it is pending. During the course of investigation and searches conducted at the residential houses of A1 at Visakhapatnam and Mumbai, he was found to be having possession of disproportionate assets to a tune of Rs.

34,48,830/ - in the form of cash and bank balances etcetera and as such, the subject crime giving rise to the present CC was registered. He was found to be in possession of assets disproportionate to his known sources of income to the tune of Rs.43,09,035/ - during the check period from 01.05.2001 to 10.01.2010. Part of his assets were in the name of his wife, the petitioner-A3, and A2-his daughter. As such, they abetted the offences committed by A1, which are punishable under the provisions of the PC Act. The details of assets consisted of movable assets in the form of cash, fixed deposits, national saving certificate, household articles, gold jewellery etcetera, which are mentioned in statement-B, statement of assets, annexed to the charge sheet. The material averments in the petition of the petitioner-A3 are denied.

in the joint names of her and her husband in Oriental Bank of Commerce, Chembur Branch, Mumbai to a tune of Rs.2,90,773/ -. They were also having huge bank balances of Rs.3,40,276/ - in Central Bank of India, Mankhurd Branch, Mumbai. They are part of the assets disproportionate to the known sources of income of A1 and hence, she has committed the offence punishable under Section 109 of IPC. The contention that she has not committed any offences is false. She lent her name for investment of disproportionate assets in the joint names. She was jointly holding SB accounts and FDs with her husband in various banks, the details of which are mentioned in the said statement B and the same form part of disproportionate assets and thereby she abetted the commission of substantial offences by A1.

A1 was working in Visakhapatnam and the petitioner-A3 was staying at Mumbai. Therefore, there was no need to open a joint account at Mumbai. If necessary she ought to have opened an account in her individual name at Mumbai. Only to safeguard the ill gotten money the joint accounts were opened. The joint accounts under the category 'either or survivor' can be operated by both the account holders and it is incorrect to say that the 2nd holder can operate the account, if only the first holder is not available to operate the account and not otherwise. She is not having right to operate the accounts is therefore false. There is no prohibition in law for the trap laying officer in one case for investigating the disproportionate assets case. A1 was provided with a copy of the FIR along with the charge sheet by the Special Court.

The petitioner-A3 is also provided with the copy of FIR along with the charge sheet. The contra allegations are false.

petition. A3 is actively involved in abetting the commission of offences by A1 and in hoarding part of the assets in her name. An amount of Rs.19,88,000/ - in cash was recovered from Locker No.147-A in Punjab & Maharashtra CoOperative Bank, Sion Branch, Mumbai, which was in the names of A2 and one H.H. Vazirani, a distant cousin of A1 and the same was operated only by A2. Fixed deposit in Oriental Bank of Commerce, Chambur Branch, and Savings Bank account in Central Bank of India, Mankhurd branch, Mumbai, are in the joint names of the petitioner-A3 and her husband-A1. When the charge sheet was returned, the above facts were stated to the Special Court while representing the charge sheet/ final report. Having accounts in joint names is not being denied by the petitioner-A3.

Petitioner-A3 never claimed that she was and is employed anywhere and has sources of income of her own to maintain accounts either in her name or in joint names with her husband. As there is prima facie material and a strong suspicion, at the time of framing of charges, the special Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclosed the existence of all ingredients constituting the alleged offence. The Courts are not expected to go deep into the probative value of the material on record while considering requests of the present nature. There is no merit in the request of the petitioner-A3. Hence, the petition is liable to be dismissed.

6.

At the time of hearing, learned counsel for the petitioner-A3 reiterated the pleaded case of the petitioner, which is already stated supra, and further contended as follows: - 'There is absolutely no material to show that either the petitioner-A3 abetted or instigated A1 to acquire assets disproportionate to his known sources of income. The learned Special Judge ought to have seen that A1 was working at Visakhapatnam and, therefore, there was a necessity to open a joint account at Mumbai where the petitioner-A3 and children are living for the sake of education of the children. The name of the petitioner-A3 has

figured nowhere except in the charge sheet. This disproportionate assets case is an off shoot of false and baseless trap proceedings. The trap case ended in acquittal. The trap laying officer knew that the trap is a false trap, but, still acted as an investigating officer in the disproportionate case, which was subsequently registered, and he and the CBI acted mala fide in the matter and falsely implicated A1 in the disproportionate case. Not being satisfied with the same, though the names of A2 and A3, who are the daughter and wife of A1, are not mentioned in the FIR they were also falsely implicated at the time of filing of the charge sheet despite the fact that there is absolutely no evidence showing their complicity in the matter for the offence punishable under Section 109 of IPC.

There is no material even prima facie to frame a charge for the said offence punishable under Section 109 IPC against the petitioner-A3. Even if the entire material placed by the prosecution in total is taken into consideration, the same does not disclose any basis or grounds and, therefore, the allegations made against the petitioner-A3 are baseless and groundless and patently do not satisfy the ingredients of the provision of Section 109 of IPC. The allegations do not stand the test of scrutiny of law. No specific overt act was attributed to the petitioner warranting her prosecution. The petitioner is not even remotely connected to the offence alleged to have been committed by her husband-A1.

The learned Special Judge without considering the facts correctly and the legal position in proper perspective erroneously dismissed the petition.'

7.

Per contra, the learned Special Public Prosecutor while reiterating the case of the respondent stated in the counter, which is stated supra, further submitted as follows: - 'The petitioner-A3 is the wife of A1(accused officer). She is having knowledge of the transactions. She is not employed and is not having any sources of income even as per her own case. She has no separate income to make investments in bank accounts and fixed deposits. The case of the prosecution is that the amounts invested in joint accounts in the names of

the petitioner-A3 and her husband-A1 are part of the ill gotten money of A1. As rightly held by the learned Special Judge, the material placed before the Court disclosed a prima facie case and a strong suspicion against the petitioner-A3 for framing a charge under Section 109 of the IPC against her. At the time of framing of charge, the special Court is not concerned with the number of allegations but the Court has to focus on the material available on record and form an opinion whether there is a prima facie case that the petitioner-A3 has committed the offence which if put to trial would prove her guilt. There is no need to form an opinion that the petitioner-A3 is certainly guilty of committing the offence alleged against her.

The contention that the ingredients of definition of Section 107 IPC are not attracted to the case is not correct. The petitioner is having knowledge of all the transactions. She aided her husband in acquiring assets disproportionate to his known sources of income and in hoarding some of the assets in her name jointly with his name. Allowing investment of assets in one's name would definitely amount to facilitating the possession of disproportionate assets by the accused officer and consequently it amounts to abetment.'

8.

I have given detailed and thoughtful consideration to the facts and submissions.

9.

Before proceeding further, it is apt to refer to the legal position obtaining. Section 239 Cr.P.C reads as under: - " When accused shall be discharged: If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." Section 227 Cr.P.C., reads as under: - 'Discharge: - If, upon consideration of the record of the case and the documents submitted

therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.' Thus, a charge can be framed against an accused in a case where the prosecution has placed on record sufficient evidence to show a prima facie case against him/ her under a particular provision of law. In case the prosecution fails in its primary duty to show a prima facie case to proceed against the accused i.e., when the Court comes to the conclusion that there is no sufficient ground to proceed against the accused, he/ she shall be discharged forthwith under Section 227 Cr.P.C.

It is a well settled principle of Criminal Jurisprudence that a Court would not require the prosecution to prove its case beyond any shadow of doubt at the time of framing of the charge as it is required to do so only at the time of conclusion of its case in order to bring home the guilt of the accused. At the stage of framing of charge, the prosecution is under an obligation to place only that much of material against the accused which may be sufficient enough in the circumstances of a given case to draw a presumption that the accused has committed an offence. Further, in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others [1990 Cri L.J.

1869], the Supreme Court held as follows: "From the above discussion it seems well settled that at the Section 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients Constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." In Union of India v.

has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

10. Now it is profitable to refer to the decisions relied upon by both the sides.

(i) Yeneti Appa Rao and another v. State of A.P.1 is relied upon by the petitioner in support of the proposition that unless aiding is intentional, it cannot be said that an offence punishable under Section 107 of IPC is committed. The facts of the cited case are as follows: 'A2, who was a subordinate of A1, received the bribe amount on behalf of A1. It is not the case of the prosecution that A2 is also hand in glove with A1 and that he conspired with A1 and agreed to receive a share from out of the said bribe amount.' Therefore, having regard to the provision of Section 107 of IPC this 1 2007(1) ALT (Crl) (AP)36 (SB)

Court held that A2, who was a village administrative officer was subordinate to A1, was simply obliging him and that the said act of obliging would amount to aiding but it cannot be said to be intentionally aiding as it is not the case of the prosecution that A2 was hand in glove with A1 and agreed to have a share from out of the bribe amount and as no malice was attributed to A2. The cited case was decided on the facts of that case.

(ii) State v. D.J. Prabhakar Anand and another2 is relied upon by the respondent to show that the evidence collected during the course of investigation sufficiently satisfies the ingredients of the offence of abetment. In this cited case, the judgment of the Supreme Court in P. Nallammal v. State [AIR 1999 SC 2556] was referred to and paragraph no.22 of the judgment of the Supreme Court, which reads as follows, was extracted: "Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107 of the Penal Code vis-a-vis Section 13(1)(e) of the P.C. Act.

The first illustration cited is this : If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation.

Next Illustration is this : Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy.

The last illustration is this : If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A's name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment falling under the "Thirdly" clause of Section 107 of the Penal Code."

2 2005(2) ALD (Crl) 660 AP

11.

Reverting to the facts of the instant case, it is to be noted that the petitioner-A3 is the wife of A1. A1 is facing trial in the Calendar Case for the offences punishable under the provisions of the PC Act. The offence alleged against the petitioner-A3 is that she abetted him in the commission of offences alleged against him and facilitated hoarding of money in the form of bank accounts and fixed deposits in her name jointly with A1. The details of the accounts and deposits acquired in the joint names of the petitioner-A3 and A1 were collected during the course of investigation. The details of the same are as follows:

Sl.No in statement B Bank Name Name of the Account holder Savings Bank/ Fixed Deposit Account No.

Amount Rs.

3(1) Oriental Bank of Commerce, Chembur Branch, Mumbai R.K.

Vazirani and Poonam Vazirani SB A/ c.No.08832010002020 (old 3174) 76,954.00 3(2) Oriental Bank of Commerce, Chembur Branch, Mumbai R.K.

Vazirani and Poonam Vazirani FD.Nos.

29,469.50 14,242.00 51,598.00 95,578.00 53,524.00 46,362.00 8833030000880 08833030001230 08833031000624 08833471003292 08833031000709 08833031016281 Central Bank of India, Mankhurd Branch, Mumbai R.K.Vazirani and Poonam Vazirani SB-1038082064 3,40,276.00 The petitioner-A3 is not disputing the joint holding of the SB accounts and fixed deposits aforementioned jointly in her name and in the name of her husband. Even according to her case she is unemployed and she is not having any income or sources of income. Other pleading apart, her main/ principal explanation for holding the accounts jointly in the SB accounts and fixed deposits is as follows: 'The joint accounts were opened and the fixed deposits were invested in the joint names to enable the joint holder, that is, the petitioner-A3 from

withdrawing the monies in the accounts and fixed deposits in the event of any unforeseen occurrence to wit demise of her husband-A1. The joint investment in SB accounts and fixed deposits is only a precautionary measure to safeguard the hard earned money of A1 for the sake of the future of the children. The job of A1 is a transferable job. The petitioner-A3 remained with her children at Mumbai. In the circumstances, A1 opened the above referred accounts in the joint names only for safeguarding the future of the children. One of the joint accounts was opened long time back and one account is a salary account of A1. It is not uncommon in our Country for wife and husband to have joint accounts and joint fixed deposits. She never operated the accounts.' 12.

The subject monies/ assets are anyhow included in the assets of A1. After including the subject monies/ assets invested in the joint accounts and joint fixed deposits in the names of A1 and the petitioner-A3 in the assets of A1 (accused officer) whether the total assets acquired during the check period would ultimately be found to be disproportionate to the known sources of income of A1 has to be adjudged after full fledged trial in the case against A1. However, within the limited scope of enquiry, the only issue now relevant for consideration is whether in the light of the fact of investment of monies in the joint names of A1 and his wife-A3, it can prima facie be said that the petitioner-A3 instigated and abetted the offences said to have been committed by A1 intentionally and with necessary mens rea.

Now it is necessary to refer to Section 107 of the IPC which reads as under: Section 107. Abetment of a thing: A person abets the doing of a thing, who - Firstly. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy or the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of the thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful mispresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily

causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

I have carefully gone through the above provision of law. As per the contents of the charge sheet and the other material on record and filed in support of the prosecution case, the petitioner-A3 abetted A1 in the commission of the offences alleged against him. It is undisputed that A1 invested his monies jointly with the petitioner-A3 in joint SB accounts and joint fixed deposits afore-stated. The petitioner-A3 is not saying that she is not having knowledge of such investments in joint SB accounts and fixed deposits. She also does not say that she does not know as to how her husband earned the said monies invested in the joint names. She also does not say that she does not know whether the monies invested in the joint names are ill gotten monies or not.

On the other hand, she specifically pleaded that the hard earned money of her husband is invested in joint names for the reasons assigned by her. It would have been a different matter, prima facie, had she stated that the she does not know the source of money, which was invested in joint names and that only as a dutiful wife she lent her name for joint investments. Thus, her such statement is a true statement or not or whether such a statement was made only to support her husband-A1 having allowed the monies to be invested in the joint names, requires to be examined at an appropriate later stage, but, not at this stage.

that the money is only of A1 supports the prima facie case of the prosecution that the petitioner-A3 abetted A1 in commission of the offences under the provisions of the PC Act. The complex issue of fact and law cannot be prejudged, in the considered view of this Court. 13.

Further, there is no need at this stage to form an opinion that petitioner-A3 is certainly guilty of the offence alleged against her. This Court examined the issue involved, keeping in view the limited scope of interference and the restricted ambit of jurisdiction and also the precedential guidance in the aforestated decisions and the decision in State of Rajasthan v. Fatehkaran Mehdu3. On consideration of the broad probabilities of the case, the total effect of evidence including the documents produced before the Court and in the absence of any basic infirmities in the case warranting acceptance of the request of the petitioner-A3 and in also view of the limited scope of jurisdiction, which vests with the Court, it is noticeable that this is a case where a final adjudication of the charge against A3 has to be made only after oral and documentary evidence is adduced in a full-fledged trial. 14.

On the above analysis and for the reasons assigned supra, this Court finds that the request of the petitioner-A3 does not merit consideration and that the order of the learned Special Judge, which is sustainable, brooks no interference. However, it is needless to state that this Court did not express any opinion on the merits of the matter and it is always open to the accused herein to raise before the Special Court all the defences, which the facts and law permit.

15.

In the result, the Criminal Revision Case is dismissed confirming the order, dated 17.04.2017, of the learned II Additional Special Judge for CBI Cases, Visakhapatnam passed in Crl.MP.No.245 of 2016 in CC.No.48 of 2010. 3 2017 (1) ALD (Crl) 842 (SC)

Miscellaneous petitions pending, if any, shall stand closed. ____________________ M.SEETHARAMA MURTI, J 01.09.2017 Vjl