G MURALI KRISHNA Vs. STATE OF A P

JUDGEMENT

(1.) These Civil Miscellaneous Appeals are filed as against Common Order made in I.A.No. 1841/2004, I.A.No. 1842/2004 and I.A.No. 1843/2004 in I.A.No387/2003 in O.P.No.434/2003 on the file of Chief Judge, City Civil Court, Hyderabad under Section 11 of the Criminal Law Amendment Ordinance, 1944, hereinafter in short referred to as "Ordinance" for the purpose of convenience. The respective appellants herein as petitioners moved the said applications under Section 4 (4) of the Ordinance to raise the attachment in respect of 3rd and 6th floord Adithya Enclave, Ameerpet, Hyderabad and office space No.2 on the first floor of the commercial complex known as Manjeera Square in MCH Ward No.7, Block No.G of Maithrivihar Complex, Ameerpet, Hyderabad. In the light of the respective stands taken by the parties, the learned Judge having marked Exs.P-1 to P-4 and Exs.R-1 to R-6 in I.A. No. 1841/2004, Exs.P-1 to P-3 and Exs.R-1 to R-6 in I.A.No. 1842/2004 and Exs.P-1 to P-3 and Exs.R-1 to R-6 in I.A. No. 1843/2004 came to the conclusion that there are no justifiable grounds to raise the attachment over the property and ultimately dismissed the applications without costs. Aggrieved by the same, the present Civil Miscellaneous Appeals had been preferred under Section 11 of the Ordinance as specified supra.

(2.) Contentions of Sri B. Adinarayana Rao: Sri B. Adinarayana Rao, the learned Counsel representing the appellants in all these Civil Miscellaneous Appeals in all fairness would maintain that though this Ordinance is styled as Ordinance, in fact it is an Enactment and the same is operative even to this day. The learned Counsel also had taken this Court through the language employed in Sections 3, 4, 5 and 6 of the Ordinance and also further explained the relationship of the parties to the accused who sold the property in favour of the purchasers. The learned Counsel also would maintain that fraud had been pleaded and no evidence had been iet in by either of the parties. The learned Counsel would maintain that when the title deeds are marked, instead of placing the burden on the prosecution, the State, placing the burden on the claimants and refusing to raise at attachment cannot be sustained. The learned Counsel also would submit that when the language of Section 3 r/w. Section 6 of the Ordinance, if carefully analysed, the learned District Judge had no jurisdiction at all to make an order of attachment. The procedure under Section 6 of the Ordinance had not been followed and the plea of benami may have to be established by the State. On the aspect of mala fide transfer, the learned Counsel made elaborate submissions and would maintain that inasmuch as the language of Section 3 and Section 6 being not clear, it is too much on the part of the learned Judge to observe that these provisions of the Ordinance would be applicable since these provisions do not engulf such transactions. The Counsel also pointed out to the repeated observations made by the learned Judge on the aspect of burden of proof and also non-adducing of any oral evidence in this regard and in the light of the said observations, in the event of the Court not accepting with the contentions advanced by him, it may be just and proper to give an opportunity to the appellants as well as the State, if need be, to adduce further evidence relating to the nature of the transactions.

(3.) Contentions of the learned Advocate General: The learned Advocate General Sri C.V. Mohan Reddy would maintain that though the Ordinance is styled as an Ordinance, the same is an Enactment made under Government of India Act 1935 and the same is operative. The learned Advocate General while further elaborating his submissions would maintain that on a careful reading of the language of both Sections 3 and 6 of the Ordinance, it appears these applications in a way are pre-mature. Even otherwise, prima facie, these transfers are fraudulent transfers and in the light of the procedure contemplated by Sections 4, 5 and 6 of the Ordinance, even before the notice was sent under Section 6 of the Ordinance, these parties had approached the Court. These are the assets, prima facie, belonging to the accused shown to be in the hands of third parties. The learned Advocate General also had explained the relationship of the vendors of these transactions being the wife and sons of the accused. The learned Advocate General also would contend that to maintain a claim and to be successful it would be essential to establish that it is not a mala fide transaction. The means or resources to be explained and it should be established that the transactions are genuine and such attachments to be adverse to the interest of such claimants. In cases of this nature, it cannot be expected that the State may be able to adduce any evidence whatsoever since negative evidence cannot be disbelieved the claimants are expected to adduce positive evidence. The learned Advocate General also had explained in detail the object of the Ordinance and how the persons accused of the commission of the scheduled offences could be procuring properties in the names of kith and kin which can be taken judicial notice of. The Legislative intent lying behind these provisions of the Ordinance may have to be kept in mind. The learned Advocate General also had pointed out to Section 13 of the Ordinance and also further pointed out the relevant observations made by the learned Judge at paras 19 and 21. The learned Advocate General also while further elaborating his submissions pointed out that no rejoinder as such had been filed and when specific stand had been taken relating to the benami nature of the transactions, the burden is on the claimants to prove that these properties were acquired by them bona fide and though ample opportunity had been given, no oral evidence had been adduced and now a request is being made to make an order of remand to fill up lacunae. The learned Advocate General also pointed out that in the facts and circumstances of the case, adverse inference to be drawn. The learned Advocate General also had relied upon certain decisions to substantiate his contentions. Thus, ultimately the elaborate submissions made by the learned Advocate General were concluded with a request that the Civil Miscellaneous Appeals being devoid of merit, the same to be dismissed.