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TMI Blog1992 (7) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... f the court while retaining the fine of ₹ 20,000/- in default to suffer simple imprisonment for six months. 2. The charge against the appellant is that the appellant being a public servant employed as Assistant Agricultural Officer in Agricultural Department during 1966 and June 1977 and thereafter as Regional Transport Officer between 25.6.77 and 15.9.83, in the Transport Department acquired assets which were disproportionate to his known sources of income and that he was found in possession of pecuniary resources of property in his name and the names of his father P. Venkata Reddy and his wife Smt. P. Satyavathi Devi of a value of ₹ 5,39,050.64 for which he could not give satisfactory account. The facts of the case are set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upto ₹ 97,968/- which, according to him, ought to have been deducted from the total value of the assets of the appellant. The are: (1) error in the calculation of sinking of the well ₹ 11,686/- (2) the error committed in calculating the income from leasehold land 42,282/- (3) the failure on the part of the courts below to take into consideration of the income from the agricultural produce namely pulses and to add that income to his known sources of income ₹ 15,000/- (4) the value of the assets wrongly included on the ground of benami transaction ₹ 29,000/ __________ Total: ₹ 97,968/- ___________ 5. According to the learned Counsel, if the above total sum of ₹ 97,968/- is deducted from the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Ex.P-160 as a prosecution document. PW-51 has not been treated as hostile. On the other hand, the prosecution rests upon the evidence of PW-51. Therefore, the prosecution cannot be permitted to blow hot and cold, that is to say, through PW-27 that a sum of ₹ 29.986/ - had been expended by the appellant for excavation of the well and then by the next berth through PW-51 that the actual expenditure was ₹ 9,300/-. As pointed out supra PW-27 has based his opinion only on a hypothesis, that is on the basis of the PWD data. When there is unassailable evidence of PW-51, vouched by documentary evidence i.e. Ex.P-160, the undeniable conclusion would be that the actual expenditure meted out by the appellant on this head was only ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof. 9. Now coming to the case on hand as regards the purchase of the properties in the name of his father P. Venkata Reddy and his wife Smt. P. Satyavathi Devi, it is clear from the records that the 1st item of property in the list of assets was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion holding that the consideration on the benami transaction would be only to the extent of ₹ 29,000/-. The relevant portion of the observation of the High Court reads thus: The consideration of ₹ 29,000/- and the expenses for stamp etc. will be about ₹ 2,000/- and the total amount will come to ₹ 31,000/- as against ₹ 1,65,000/-. The amount of ₹ 29,000/- is accepted and the finding of the lower court that the value of the assets at ₹ 1,65,000/- is set aside. But in the penultimate part of its judgment, the High Court has observed thus: In this case there is any amount of doubt with regard to the consideration of ₹ 1,65,000/- paid towards land at Needigatla, but as the prosecution has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to. 12. The claim of the last item is the income from the sale of pulses from the agricultural land. The appellant claimed a sum of ₹ 15,000/- as his income on this account. Both the courts below have not accepted the claim of the appellant but rejected by saying that it was only fodder crop. Admittedly, there is no evidence that it was fodder crop. On the contrary the evidence is that pulse was produced from the agricultural land. Hence we have no hesitation adding the sum of ₹ 15,000/- on this account to his total income. Therefore, on the four heads which we have indicated above the appellant would be entitled to have an inclusion of a sum of ₹ 57,282/- to his total income and an exclusion of ₹ 40,686/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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