Please clarify and suggsthe status of the Asset in a DA case
M.V.krishnarao
(Querist) 12 January 2010
This query is : Resolved
Please clarify the status of the Asset in a DA case
Two gifts of thatched house comprising 90 Sq.yds each (side by side) was received from the paternal aunt (father’s sister)of the (AO) in two spells one in the year 1988 and another in the year 1989 by the father (AO) and his third son with life interest to the (father) AO and absolute interest to the (AO’s) third son being minor by the time the gift was executed. Rents though meager in amount were received by the father (though the father has right to enjoy the fruits during his life time) and the same were used for the welfare of the third son by father being Natural guardian.
In the year 1999 the father who worked under A.P State Govt. applied for house building advance of Rs.2/- lakhs and it was under process and pending without any endorsement till a case of DAwas booked by the ACB in the year September 2002. Charges were framed in the year 12/2006.
The father approached IOB Guntur for finance & sanction of loan for construction of house building and the Bank requested clarification on the gift deeds Dt.16-03-1988 and 08-05-1989 of the rights of the applicant to enjoy only fruits of the property during life time and where as the vested interest lies with the minor 3rd son.
The father of the minor approached the IV Additional District Judge, Guntur and the court in its order G.W.O.P.No.84/98 Dt.15-09-1999 permitted the petitioner to pledge or mortgage by way of deposit of title deeds with any financial institution or Bank for securing loan for construction of a house in the schedule property under section 8 of the Hindu Minority and Guardianship Act.
The IOB Guntur sanctioned a loan and advanced Rs.400000/- basing on the order of the court of the IV.Addl.Judge, Guntur. Construction was started in the month of May2001 and completed in the month of March 2002.
The Minor 3rd son attains majority and become Major on 03-03-2003
A ride was conducted on 21-09-2002 and a DA case was booked and charge sheet filed in the spl court for SPE & ACB cased Vijayawada on 18-12-2006. The case is now on trial.
The prosecution in addition to other charges framed charges on the three items on which a clarity is requested as detailed below.
1) Possession of vacant site of 90 Sq.yds.
in 12th line, Arundel pet, Guntur, in the name of Ao 18,000-00
2) Possession of vacant site of 90 Sq.yds.
in 12th line, Arundel pet, Guntur, in the name of Ao 18,000-00
3) Possession of double storied building at
14th line, Arundel pet, Guntur in the name of Ao 10,94,000-00
(A double storied building was constructed in item.1 & 2 above)
Please clarify with case laws if available how the above 1and 2 items registered gift deeds received from the paternal Aunt with (limited) life interest rights to the father and absolute rights vested with minor 3rd son was attributed to the father (AO) and in his possession by the prosecution.
If the gifts are not attributable to the father (AO) then the expenditure incurred for cost of construction by pledging title deeds to the Bank and from other sources may also be not attributable to the AO Am I correct or not?
Please furnish legal position in view of PC Act.
My opinion is that these items which are received as gifts with (limited) life interest to the father and absolute interest vested with his 3rd son could not be attributable to the AO and not comes under Assets and further construction of a two storied building in the gifted items 1 and 2 of the schedule property after obtaining loan from the IOB, Guntur and by raising funds by receiving sale proceeds of ancestral properties and pledging gold articles of AO’s wife and by receiving loan from father and a doctor friend and from rent advance from the tenant of the same building during check period. All these funds and finances are legal and having supported by documentary evidence and not acquired from the resources of the Govt.Servant were also not attributable to the AO in view of the following two paragraphs.
A Government servant is not required to give notice to the prescribed authority or seek
prior permission from the prescribed authority for acquisition or disposal of immovable properties by the members of his family, if the immovable property in question is not acquired from the resources of the Government servant concerned.
“A public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account cannot be convicted of an offence under S.13 (2) read with S.13 (1) (e) of the Act unless the prosecution disproves all possible sources of income.”
Please comment
Your valuable reply together with case laws is highly appreciated.
With reqards.
Raj Kumar Makkad
(Expert) 13 January 2010
There are n disproportinate properties in the given fact in the possession of the concerned employee and he has falsely been charged without considering the entire elaborated facts in consideration.
I think no charge is likely to sustain before law.
