Mohanlal Arya vs State of Madhya Pradesh

M.C. Garg, J.—This judgment shall dispose of this appeal filed u/s 374 of Cr. P.C. against the order dated July 31, 2009, passed by the Sessions Judge, in S.T. No. 1/2006, whereby the Special Judge (Prevention of Corruption Act) Jhabua has convicted the appellant Mohan u/s 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act). Vide impugned judgment, the appellant has been sentenced to undergo R.I. for 2 years and with fine of Rs. 25,000/- and in default of payment of fine, to further undergo simple imprisonment for one year. According to the prosecution, when the appellant was posted as Sub Divisional Magistrate in Petlawad, searches were conducted on the properties of the appellant and it was found that the appellant was possessing properties disproportionate to known-sources of his income. As such a case was registered against him under Sections 13(1)(e) and 13(2) of the Act as Crime No. 207/2002.

For the purpose of computation of income, the period from 01.01.1996 to 20.09.2002 was considered as the check period. According to the appellant, prior to his appointment as SDM, he was posted as teacher from 21.08.1979 to 01.07.1994.

Respondent-Lokayuktha computed the income of the appellant in the check period as Rs. 11,10,055/-. The details of the computation is as under:-

Income:

The expenses incurred by the appellant in the check period were assessed to the tune of Rs. 26,80,660/- The details of the expenditure were as under:-

Expenditure:

Thus, as per the prosecution property possessed by the appellant to the tune of Rs. 15,70,605/- in the check period was disproportionate to his known-sources of income. Based upon the aforesaid calculation, a challan was filed against the appellant u/s 13(1)(e) and 13(2) of the Act. Charges were framed against the appellant under the aforesaid provisions, which the appellant denied and accordingly was subjected to trial.

It was the defence of the appellant that he had satisfactorily explained his income and expenditure on various head, but prosecution did not consider his explanation in a correct manner. It was also his case that the property possessed by him prior to his appointment as SDM in 1994 and disclosed to the Government was also not considered. Moreover, the income of his other family members was wrongly taken as the income of the appellant. It was submitted that the house hold expenses of the appellant were virtually looked after by his family members as the family of the appellant is an agricultural family and as such he also wants addition of his available income.

After concluding the trial, the trial Judge found the income of the appellant during the check period from the known-sources only to the tune of Rs. 13,38,103/- whereas the expenditure incurred was found to be Rs. 24,20,300/- and in this manner the trial Judge concluded that the appellant possessed a sum of Rs. 10,82,197/- in excess of known-sources of income and thus disproportionate to his known-sources of income for which he failed to furnish appropriate explanation. He has therefore convicted the appellant for the offences charged against him and sentenced him to undergo R.I. for two years 2 years and with fine of Rs. 25,000/-. In default of payment of fine, to further undergo simple imprisonment for one year. In addition to that, the property of the appellant to the tune of Rs. 10,82,197/- was directed to be confiscated by the State after the expiry of the limitation of filing an appeal.

The appellant filed the appeal within the time prescribed. In terms of the order dated 21.08.2009, the jail sentence of the appellant was suspended subject to his depositing the amount of fine and furnishing bail bond in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of the trial Court. The appellant did furnish the surety and he is on bail.

It has been contended on behalf of the appellant that the officer of Special Police Establishment of Lokayuktha calculated the actual income of the appellant on lower side and the expenditure on higher side. It is also the case of the appellant, that the trial Judge went wrong in not appreciating the explanation furnished by the appellant and the evidence led by him to show that the gift given by the mother-in-law of the appellant to the daughter of appellant amounting to Rs. 50,000/-, gift given by the brother-in-law to the daughter of the appellant amounting to Rs. 20,000/-, gift given by the father-in-law to the wife of the appellant through demand drafts amounting to Rs. 3,80,000/-, loan from Aawas Finance amounting to Rs. 1,00,000/-, loan for purchase of scooter amounting to Rs. 35,000/-, loan from Komal Chand Gehlot amounting to Rs. 1,00,000/-, income of wife amounting to Rs. 1,36,360/-, agriculture income amounting to Rs. 22,350/-, Interest from FDRs amounting to Rs. 6,000/- and various other incomes have not been accounted for by the officers of SPE while calculating the income of the appellant.

It is also the case of the appellant that the expenditure incurred by the appellant as assessed by the Officer of the SPE is on higher side. The appellant had only spent 30% of his salary towards house hold during the check period and prior to the check period. It has been submitted that if the calculation was done in the correct manner, it would have been found that appellant was not in possession of any disproportionate asset. It has been submitted that even the assessment done by the trial Judge showing the income of the appellant only to the extent of Rs. 13,38,103/- and expenditure to the tune of Rs. 24,20,300/- is based upon expenditure of his salary towards house hold to the extent of 60%, which is not correct.

According to the appellant, even following items ought to have been added in his available income for the purpose of calculation during the relevant period:

(i) a sum of Rs. 1,19,122/- 40% of the salary amount of Rs. 2,97,806/- which has not been taken into consideration from August, 1979 to June 1994.

(ii) a sum of Rs. 31,808/- 40% of the salary amount of Rs. 78,520/- for the period from July, 1994 to December, 1995.

Thus, it is submitted that for the period from August, 1979 to June, 1994, a sum of Rs. 2,94,717/- should have been added as his income. Thus, there is a difference of Rs. 1,30,247/- in the income calculated for this period.

It is also submitted that there is also an error on the part of the SPE in calculating the expenditure incurred by the appellant during the check period inasmuch as while the Lokayuktha has taken a sum of Rs. 3,85,469/- as house hold expenses being 60% of his salary as item of expenditure whereas, the said amount has not been deducted for calculating the cost of inventory with respect to the expenditure towards movable property of Bhawanipur house and movable property of Petlawad house.

Relevant chart of comparative figures about the amounts considered by the SPE, the lower Court, ought to have taken as per the estimate of the appellant is reproduced hereunder:-

Income before check period August, 79 to December, 95

As regard expenditure it is the submission on behalf of the appellant (i) while considering the house hold expenses only 40% of his salary should have been taken into consideration (ii) the expenses incurred should have been set off towards inventories prepared. Besides that the appellant has also pointed out certain discrepancies in item No. 4, 5, 6 and 7 of the list of expenditure which comes to Rs. 44,164/-.

Expenditure in check period 1.1.96 to 20.09.02

It is also the submission of the appellant that his income prior to the 1979 when he was working as teacher also should have been taken into consideration which income according to the appellant was to the tune of Rs. 4,10,591/- and after deducting 40% therefrom the remaining amount should have been considered as income available in the hands of the appellant which will come to the tune of Rs. 2,46,121/-.

It is also submitted that in addition to the aforesaid discrepancies provision of 10% difference should have also been made, even if the expenses would have been found more than the income.

Now coming to the specific items not taken into consideration towards the income of the appellant, it has been submitted that the gift received by his wife from her father to the tune of Rs. 3,80,000/-, was made by way of demand draft enclosed with the document marked as Ex. P-105, a letter written by the Branch Manager of the Central Bank of India to the Investigating Officer of the present case PW-23 Satish Mishra, to prove that the remission was by way of bank draft much prior to check period. The aforesaid witness in his deposition also exhibited a letter dated December 13, 2004 written to the Additional Secretary, State of Madhya Pradesh (Ex. P-102) from where it is clear that receipt of Rs. 3,80,000/- by the wife of the appellant duly intimated to her department in accordance with M.P. Civil Services (Conduct) Rules, 1965 vide letter dated July 30, 2001. It is also submitted that during the course of investigation, the appellant vide letter dated 24.12.2004 addressed to the Inspector, SPE, office of Lokayuktha, Indore has duly intimated that during partition, the wife of the appellant had received a sum of Rs. 3,80,000/- through demand draft from her father and that receipt of such amount was disclosed by his wife in her income tax return which fact has also been mentioned in the letter Ex. P-103 which clearly goes to show that alongwith the aforesaid letter, a copy of the income tax return alongwith Form 2D was also supplied to the Inspector, SPE, Indore. Despite admission of receipt of this document, while filing the charge sheet the officer of the SPE had not enclosed the letter dated 24.12.2004 which fact is clear from the letter Ex. P-102.

It is submitted that it was only on account of non-filing of the relevant document by the officer of SPE of Lokayuktha, the trial Judge has ignored the explanation furnished by the appellant. In this regard, it would be appropriate to take note of the impugned judgment inasmuch as in paragraph 29 to 31 there is discussion about the aforesaid aspect. Those paragraphs reads as under:-

In this regard, statement of Inspector of the Lokayuktha become relevant who admits that these documents were supplied by the appellant during the course of the preliminary enquiry were they have not been annexed with the charge sheet. The appellant in this regard has also relied upon the statement of DW-6, brother-in-law, who stated that his father was having the land ad-measuring 7 acres and from that his father was earning Rs. 2-2.5 lacs per year. He has further stated that his father was engaged in cultivation of Wheat, Garlic, Rayada, Soya bean and vegetables. DW-6 in his deposition has also stated that his father was also engaged in cultivation of opium. In para 2 of his deposition, DW-6 has stated that at the time of partition of land his father has given Rs. 3,80,000/- to the wife of the appellant through demand drafts which was drawn from Central Bank of India, Pipliya Raoji Branch. It is submitted that the appellant has also intimated to his department vide letter dated 30.07.2001 which is mentioned in Ex. P-102. It is also submitted that during the course of investigation also through letter Ex. P-103, the appellant has intimated to the Investigating Officer and also given the copy of the income tax returns of his wife in which there was a mention of receipt of amount of Rs. 3,80,000/-.

It is submitted that the income tax return being the public document does not require formal proof. It is submitted that much prior to the date of incident, the appellant had given intimation to his department without any anticipation that subsequently a raid is to the conducted in the house of the appellant. Infact even the wife of the appellant had given information about the gift given by her father to her department. DW6 in his deposition has also deposed in respect of the same and nothing fruitful has come during his cross examination on behalf of the prosecution. It is submitted that the appellant given all plausible explanation in the evidence before the trial Court in respect of receipt of amount of Rs. 3,80,000/-. It is submitted that the amount of Rs. 3,80,000/- is the income of the appellant through known sources and therefore, is required to be added in the income part of the appellant. It is important to mention here at this juncture that PW-23 in para 30 of his deposition has also exhibited that alongwith the letter Ex. P-103, the income tax return of the wife of the appellant was enclosed in which the receipt of amount of Rs. 3,80,000/- was mentioned, was also enclosed. It is submitted that PW-23 in para 25 of his deposition has accepted that the appellant vide letter dated 30.07.2001 has given intimation to his department in respect of receipt of Rs. 3,80,000/-. From the aforesaid evidence available on record, it is clear that the amount of Rs. 3,80,000/- is income of the appellant through known sources therefore, the same is required to be added in the income part of the appellant. It may be observed here that the copies of the income tax returns which admittedly were supplied to the SPE have been placed on record with written submissions, though they were not placed before the trial Court by prosecution though received during enquiry. The income tax return for the year 2001-2002 of the wife, mention of the gifts received from her father duly informed to the Income Tax Department.

Similar arguments have been addressed on behalf of the appellant regarding the income of his wife to the tune of Rs. 1,36,360/-. In this regard it is submitted that the wife of the appellant was doing the work of embroidery through which she received the income. It is submitted that the appellant has got examined DW3 Gopal Singh Chawra, who in para 1 of this deposition has specifically stated that Mrs. Arya was skilled in the work of embroidery and she also showed a certificate in this regard to him and requested for work. DW3 has further deposed that between year 2000-02, he has given the work of embroidery to her and also made the payment for the work done by the wife of the appellant. DW3 has also exhibited two certificates which have been marked as Ex. D62 and D63. It is submitted that during the course of investigation, the appellant has submitted a representation to the Investigating Officer for which details of the income of the wife was also mentioned. On the basis of the aforesaid representation, the Investigating Officer has written a letter to DW3, who in turn has intimated to the IO vide letter which has been marked as Ex. D58. It is submitted that from perusal of Ex. D58, D62 and D63, it is clear that during the year 2000-01, the wife of the appellant received an amount of Rs. 65,860/- and during the year 2001-02, the wife of the appellant received an amount of Rs. 70,500/-. It is submitted that the wife of the appellant has also disclosed this income in her income tax returns which have been submitted in respective years before the Income Tax Authority. It is submitted that the copies of the income tax returns have also been supplied to the I.O. during the course of investigation through letter dated 24.12.2004 which has been marked as Ex. P103. It is submitted that the assessment year 2001-02, the wife of the appellant has submitted her income tax return on 31.07.2001 in Ward No. 1 (4) Income Tax Officer, Indore and for the assessment year 2002-03, the wife of the appellant has submitted that her income tax return on 30.07.2002 in Ward No. 1(4), Income Tax office, Indore. A copy of the income tax return for the assessment year 2002-03 has been filed alongwith Annexure A/2. A perusal of this shows that income during the period in the assessment year 2002-03 i.e. in the year closing on March 31, 2002 was mentioned in the return by showing that a sum of Rs. 70,500/- was received by the wife of the appellant.

It is submitted that both the income tax returns have been filed by the wife of the appellant prior to the date of raid without any anticipation that her husband would be charged for the offences punishable u/s 13(1)(e) read with 13(2) of the Act in future. In view of the aforesaid, the disclosure given by the wife of the appellant in respect of her income is required to be accepted as the income of the appellant because the expenditure pertaining to the wife of the appellant has been taken on the head of the appellant. It is also submitted on behalf of the appellant that the explanation of Section 13(1)(e) read with 13(2) defines the word ''known source''. As per the explanation, known source of income means income received from any lawful source and as such the receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to public servant. So far as the explanation of known source is concerned, the same nowhere says that it should be the department only to whom the information is required to be given. It is submitted that the Income Tax Act is also applicable upon a public servant and the information in respect of the income has been given to the Income Tax Authorities under the Income Tax Act then as per the explanation, there is no requirement that the public servant is required to intimate to his department. It is submitted that non-intimation to the department may amount to a misconduct for the purpose of disclosure proceedings and the same cannot be a criminal misconduct for the purpose of criminal prosecution of appellant before the Court of law. It is submitted on behalf of the appellant that the income of the wife has been duly proved during the course of trial and receipt of the same was also intimated by her to the Income Tax Department prior to the date of raid, therefore, the amount of Rs. 1,36,360/- is known source of income of the appellant and is required to be added in income part of the appellant. It is important to mention here at this juncture that PW23 in para-30 of his deposition has also accepted that the appellant has give his income returns to him during the course of investigation. The learned trial Court by overlooking the evidence and the material placed on record, has not taken the income of Rs. 1,36,360/- and the reasoning given by the learned Court below is based on presumptions and surmises which is bad in law. The appellant submits that he has given all the satisfactory and plausible explanation in respect of income of his wife and therefore, the amount of Rs. 1,36,360/- is required to be added in income part of the appellant.

It is submitted that the learned trial Court has even not discussed the defence of the appellant in respect of his income through agriculture which is to the tune of Rs. 22,350/-. It is submitted that PW-13 in para 1 of his deposition has proved the document pertaining to the service details, the salary of the appellant, immovable property return and the income tax return of the appellant for the assessment year 2002-03. It is submitted that the aforesaid document has been exhibited as Ex. P-46, P-47 and P-48. It is submitted that from the perusal of Ex. P-46, it is clear that the income tax return of the appellant for the assessment year 2002-03 was also given to the IO and the same has been exhibited as Ex. P-48. It is clear that the same was submitted before Income Tax Authority on 04.03.2002 i.e. prior to the date of raid. It is submitted that in the aforesaid income tax return, there is mention that for the concerning year the appellant has received an amount of Rs. 22,350/- from the agriculture. It is submitted that the income of Rs. 22,350/- through agriculture is also income of appellant from the known source regarding which the appellant has informed to the Income Tax Authority and the income tax return has been also submitted before the department. In view of the aforesaid, it is clear that the receipt of agriculture income has been duly intimated by the appellant to the Income Tax Authority as well as the department, as such, the same is known source of income and therefore, the amount of Rs. 22,350/- received by the appellant through agricultural income is required to be added in the income part of the appellant.

It is submitted that the income tax returns being the public document, can be looked into even at the stage of appeal and the same does not require formal proof of document. Appellant has placed reliance on the judgment reported in State of Madhya Pradesh Vs. Mohanlal Soni, wherein the Apex Court has held as under:-

In the normal course, the document in question in the present case could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The documents being the years of assessment or returns filed with the Income Tax Authorities on their face value supported the case of the respondent. There was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the Court.

In the case of Mohanlal Soni (Supra), the Hon''ble Supreme Court considering the question of framing of charge held that the income tax return and income tax assessment order on which reliance is placed should be considered by the Court concerned. Thus judgment has been referred by us earlier, but paragraphs 6 and 12 of this judgment which are relevant are reproduced hereunder:-

We have examined the rival submissions made by the learned senior counsel for the parties. Our attention was specifically drawn to the earlier order of the High court dated 8.9.1997 passed in Criminal Revision No. 337/97 in which the trial court was directed that the documents made available by the accused during investigation be produced and they be taken into consideration by the court while framing charges. The said order became final, it having not been challenged further. In this situation the parties and the trial court were bound and governed by the said direction. Since the trial court did not follow the said direction, the High Court having considered all the material including the documents produced by the prosecution itself, which were collected during the course of investigation, and on being prima facie satisfied taking the documents on their face value held that no offence was made out and as such no charge could be framed against the respondent. In this view, the High Court set aside the order of the trial court and passed the order discharging the respondent. The High Court in the order under appeal has elaborately considered the documents collected during the course of investigation and produced by the prosecution itself which were available at the time of framing charges. It may be added that most of the documents relate to the income tax returns or income tax assessment orders. All these documents pertain to the period prior to 26.3.1993. Some of them even relate to the year 1988. In the normal course the documents could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The documents being the orders of assessment or return filed with the income- tax authorities on their face value supported the case of the respondent. The High Court in the order dated 8.9.1997 passed in Criminal Revision No. 337/97 relied on the decision of this Court in Satish Mehra vs. Delhi Administration and Another. In the said decision it is held:-

The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that sessions Judge would be within his power to consider even materials which the accused may produce at the stage contemplated in section 227 of the Code.

Be that it may, when the said order attained finality as already noticed above, the trial court was bound to follow the directions given therein. Its failure to follow the directions resulted in framing charges against the respondent ignoring the documents, which on their face value supported the respondent.

From the decisions referred to in the same paragraph and the decisions already referred to above there was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the court and particularly in view of the directions given earlier by the High Court.

In this case, apparently, despite submission of the income tax returns, while submitting the explanation, the same were not placed for the perusal of the Court during the course of the trial by the Prosecution for the reasons best known to them and therefore, this return can be considered by this Court for coming to a conclusion as to whether the income derived by the wife and other members of the family of the appellant should also be considered as the income of the appellant or not in the check period.

Having examined the record, we feel that the wife of the appellant having already informed his employer at the relevant time which was her statutory requirement having filed Income Tax Return cannot be disbelieved that those amounts were available in the hand of the appellant for expenditure. So far as sum of Rs. 3,80,000/- and Rs. 1,36,360 are concerned, we hold that sum of Rs. 5,16,360/- was very much available with the appellant during the check period and are required to be added to his income.

The judgment delivered in the case of D.S.P., Chennai Vs. K. Inbasgaran, also require mention. Relevant paragraphs of the judgment are 15, 16 and 17, which are reproduced hereunder:-

We have heard both the learned counsel at length. The basic question that emerges in the present case is whether the accused could be saddled with all the unaccounted money at his hand or not. It is the admitted position that both the husband and wife were living together. The wife was running three concerns though those concerns were running in loss. Yet she could manage to earn black money by selling goods without bills and amassed this wealth without disclosing the same to the Income Tax Authority and when the raid was conducted she disclosed the unaccounted money and accepted herself for being assessed by the Income Tax Department. Therefore, in this context, the question arises whether the joint possession of the premises by the husband and wife and the unaccounted money which has been recovered from the house could be said to be in exclusive possession of the accused. There are no two opinions in the matter that the initial burden has to be discharged by the prosecution. The prosecution in order to discharge that burden has examined the investigating officer, PW 53 Shri Viswanathan, DSP (Investigation). PW 53 Viswanathan has collected all the materials from various places and he has given the details of his investigation. He has also supported the recoveries which have been made by the Income Tax Department. He, in his statement, has also deposed that some money was deposited at various branches of Punjab National Bank at Bangalore and he has examined all the Senior Managers of Punjab National Bank to show that various amounts were deposited in their banks and the prosecution has also produced them in the witness box to substantiate their allegation as PWs 22, 23, 24, 25, 26 and 32. He has also examined the persons against whose names those amounts were deposited in the witness box. He has also examined the Income Tax Officer as PW 14, PW 44 Assistant Director of Income Tax (Investigation) and PW 51 S. Ganapathy Iyer. By this evidence the prosecution has established that the money was recovered at the house of the accused as well as various purchases of immovable properties made by the wife of the accused. The prosecution has tried to establish that all the monies which had been recovered from the house of the accused, various deposits in Punjab National Bank at various places through the influence of the Regional Manager of Punjab National Bank and the recovery of the gold ornaments as well as the recovery of foreign exchange i.e. dollars belong to the accused. Thus, the prosecution has tried to establish that all the monies belonged to the accused and after taking sanction, prosecution was launched against the accused. There are no two opinions in the matter that the initial burden lies on the prosecution. In C.S.D. Swamy v. State 1 this Court has taken the view that in Section 5(3) of the Prevention of Corruption Act, 1947 a complete departure has been made from criminal jurisprudence, still the initial burden lies on the prosecution and in that context it has been observed as follows: (SCR p. 466)

... Section 5(3) of the Act, does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances -- a rule which is a complete departure from the established principles of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him.

Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time, it has been held in State of M.P. v. Awadh Kishore Gupta that the accused has to account satisfactorily for the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In order to substantiate the plea taken by the accused that all the monies which had been received belonged to his wife and in support thereof he has examined as many as 13 witnesses including himself, his wife and his son-in-law. DW 12 is the wife of the accused. She has deposed that the entire money belonged to her. She has admitted the raid on her house and she has also admitted that she has amassed the wealth by selling cycle rims and leather products without any bill and out of the money amassed by her she had persuaded her husband to deposit the same at various banks. She has come forward and admitted the recovery of the foreign exchange at her house and she has accounted for the same. She has also admitted the recovery of the gold ornaments at her house and she has explained that she has purchased those gold ornaments. She has also submitted that some real estate was purchased out of self-earning as well as the loan from the mother of the son-in-law and some contribution was made by the son-in-law which the son-in-law has also admitted. Likewise, DW 8 her son-in-law, Thiru S. Rajasankar also appeared in the witness box and admitted that he had also saved certain foreign exchange when he had gone on various visits abroad. He has also admitted to have carried some money to be deposited in the bank. The accused has also come forward in the witness box as DW 13 and has deposed that all the monies belonged to his wife and when he came to know about the unaccounted money at his house, he gave a piece of his mind to her. He has admitted that on one or two occasions the money was carried by himself to be deposited in the account in Punjab National Bank and some money was also deposited on account of some of the members of the family by DW 8 S. Rajasankar, the son-in-law. Therefore, under these circumstances, the respondent has explained the possession of unaccounted money.

Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and the purchase of real estate or the recovery of the gold and other deposits in the bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money be laid at his hands. The question is, when the accused has provided satisfactory explanation that all the money belonged to his wife and she has owned it and the Income Tax Department has assessed it in her hand, then, in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband as the case may be, it cannot be fastened on the husband or the head of the family. It is true that the prosecution in the present case has tried its best to lead evidence to show that all these monies belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the income tax returns and she has accepted the whole responsibility, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of the wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being a public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused, coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income Tax Department, it will not be proper to hold the accused guilty under the Prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and that it belonged to his wife. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of possession and the premises in question were jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold the husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. Hence, we do not find any merit in this appeal and the same is dismissed.

Thus, it is submitted that the actual income of the appellant is more than the actual expenditure and the appellant has given every possible explanation in that regard and therefore, no offence punishable u/s 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 is made out against him and he is liable to be acquitted.

Various judgments have been cited by the appellant in support of his case. One of the judgment relied upon by the appellant is about the case of Krishnanand Agnihotri Vs. State of Madhya Pradesh (1977) 2 SCC 816 wherein it has been held that in a case of possessing disproportionate assets, an excess of less than ten percent would not justify application of the presumption. Relevant paragraph of the judgment is reproduced hereunder:-

It will, therefore, be seen that as against an aggregate surplus income of Rupees 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rupees 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small-it is less than ten per cent of the total income of Rs. 1,27,715.43/- we do not think it would 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 under Sub-section (3) of Section 5. We are of the view that, on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption.

Giving details about the proposed income of Rs. 2,08,464/- to be added towards salary and allowance received by the appellant posted as teacher from August, 1979 to June 1994, it has been submitted that the prosecution examined PW4 who exhibited the documents Ex. P-10 to P-15 in which the details of the salary of the appellant for the period 1979 to 1994 is mentioned. The appellant during the course of trial has admitted the documents u/s 294 of Code of Criminal Procedure and the same has been marked and exhibited as Ex. P18 to P20. PW-23, the I.O. of the present case has exhibited the documents marked as Ex. P78 to P81 in which the salary of the appellant while he was posted in Kendriya Vidyalaya is mentioned. It is submitted that from perusal of the aforesaid documents it is clear that from August, 1979 to June, 1994, the appellant received a total sum of Rs. 2,97,806/- towards salary.

It is also submitted that learned trial Court has completely overlooked the aforesaid figure in the impugned judgment and has not taken a single pie as income of the appellant through aforesaid source. It is submitted that the living standard of the family of the appellant was very simple. As per the evidence of (DW6), it is clear that the appellant was continuously receiving granaries from his in-laws. It is submitted that appellant spent only 30% towards house hold and the remaining 70% was his savings considering this fact also that during the aforesaid period, the appellant was posted in Village Amla and Nayagaon. It is submitted that after deducting 30% towards house hold, net savings of the appellant through salary comes to the tune of Rs. 2,08,464/-. It is submitted that the aforesaid salary income has been proved by the prosecution but the learned trial Court did not utter a single word in respect of the same in the impugned judgment. On the contrary, the learned Trial Court has misinterpreted the amount of CPF and GIS which is to the tune of Rs. 48,294/- as savings from the salary. It is submitted that from the perusal of the document Ex. P-114, it is clear that the appellant when left the job of the teacher in the month of June, 1994, he was paid an amount of Rs. 47,915/- towards CPF and Rs. 379/- towards GIS. It is submitted that the aforesaid amount was not the savings from the salary. It is submitted that similarly, while calculating the salary of the appellant when appellant was posted on the post of Deputy Collector July, 1994 to December, 1995, learned trial court has committed a calculation error. In the impugned judgment in para-45, the total income for the aforesaid period was shown only to the tune of Rs. 77,941/-. It is submitted that from January, 1995 to December, 1995, as per the trail Court, the appellant got only Rs. 53,523/-. It is submitted that the amount of salary mentioned in the document marked as Ex. P58 is the salary of the appellant for earlier month because the salary of a month is payable in next month. It is submitted that from the perusal of the document exhibited as Ex. P22, it is clear that the salary only upto the month of November, 1994 has been taken into account and the salary for the month of December, 1994 which was paid in January, 1995 is mentioned in Ex. P58. The learned trial court has taken only 11 months salary. It is submitted that the salary for the month of December, 1995 was paid to the appellant in the month of January, 1996 but the same has neither been taken into account as salary prior to the check period nor salary during the check period. In view of the aforesaid, the amount of Rs. 4,832/- is required to be added in the salary of the appellant of July, 1994 to December, 1995 because the salary pertaining to prior to check period has been received by the appellant during the check period. In view of the aforesaid, the actual salary comes to the tune of Rs. 82,773/-. It is submitted that the learned trial Court has deducted 60% towards the house hold and only 40% savings have been taken into account. It is submitted that from the material came on record, it is clear that the appellant was receiving all the granaries from his in-laws and was posted in villages therefore, only 30% salary was spent by him towards house hold and therefore, Rs. 57,941/- was his savings prior to the check period. It is submitted that from the document marked as Ex. P114, it is also clear that during his posting as teacher, the appellant has received an amount of Rs. 10,000/- towards advance. Similarly, as per the evidence of PW4 in para-3 of his cross examination has specifically deposed that from perusal of the document marked as Ex. P15, it is clear that during his posting as teacher, the appellant has received an amount of Rs. 10,892/- towards advance thereby from the evidence came on record and from th perusal of the document Ex. P15 and P114, it is clear that the appellant has received an amount of Rs. 10,892/- towards advance. The learned trial court has not even uttered a single word in respect of the aforesaid income in the impugned judgment. From the aforesaid discussion, the following income of the appellant was prior to the check period :-

Thus, it is submitted that the actual savings of the appellant prior to the check period comes to the tune of Rs. 4,10,591/- which is the income of the appellant through known sources, therefore, it is required to be added in the income part of the appellant since the learned trial court has taken only Rs. 1,64,470/- as savings of the appellant prior to check period, therefore, the same is being deducted from the actual savings of the appellant prior to check period i.e. Rs. 4,10,591/- and after deduction the amount comes to the tune of Rs. 2,46,121/-.

Thus, according to the appellant, the income taken by the lower Court should have also included the following items:

Now coming to the expenditure the appellant submits that at the outset the return of salary income towards house hold expenses should only be 40% of the salary and not 60% as has been done by the SPE and the trial Court. In this regard, the appellant has submitted that learned trial Court after deducting certain expenditure towards inventory and the expenditure incurred in promissory note the Court below came to conclusion that the total expenditure of the appellant during the check period was to the tune of Rs. 24,20,300/-. It is submitted that the learned trial Court has completely overlooked the evidence came on record so far as it relates to house hold expenditure, value of inventory and some investments made prior to the check period is concerned. It is submitted that the learned trial Court in para-42 of the impugned judgment has held that the appellant was spending 60% of his salary towards house hold. Learned trial Court has discarded the evidence of DW6, who in his deposition has stated that all the granaries were being supplied by him to the appellant''s family. It is submitted that there is no basis for taking 60% of the salary towards house hold and the said fact was also accepted by PW23 in his deposition. It is submitted that the prosecution has completely failed to prove in the present case that the living standard of the appellant and his family members was lavishing. On the contrary, the appellant has proved through evidence of DW6 that he was getting all the grains from his in-laws. It is important to mention here at this juncture that DW6 in para-10 of his deposition has specifically stated that in the last ear he cultivated 20-22 quintals of wheat from his agricultural land and similarly in para-11 and para-13 of his deposition DW6 has also stated in respect of production the granaries and vegetables. It is important to mention here at this juncture that in para-5 and 6 of his deposition DW6 has stated that he used to given granaries to the appellant. From the perusal of the cross-examination of DW6 it is clear that prosecution has not challenged the testimony of DW6 in respect of giving granaries to the appellant meaning thereby that the testimony of DW6 in respect of the aforesaid fact has gone completely unchallenged. The learned trial Court while discarding the defence of the appellant has held that DW6 was not capable to give granaries to the appellant. The said findings of the trial Court is based on presumptions because DW6 in his deposition has clearly established the production of crops and the said testimony has gone completely unchallenged by the prosecution. It is submitted that PW23 in para-42 of his deposition has also failed to explain as to on what basis 60% of his salary towards house hold is taken. PW23 was also not aware with the fact that Economic Offences Bureau and Central Bureau of Investigation used to take 33% of the salary towards house hold. It is submitted that initially burden always lies upon the prosecution to prove its case beyond any reasonable doubt but in the present matter the prosecution has completely failed to prove the basis of taking 60% of salary towards house hold. It is submitted that the prosecution in the present case has also failed to establish that the living standard of the appellant''s family was lavishing. It is submitted that from the material available on record, it is clear that during the entire service, mostly the appellant was posted in small towns. It is submitted that looking to the place of posting also, the expenditure towards house hold as taken by the trial Court is on very higher side. It is submitted that the appellant has suggested to PW23 that his expenditure towards house hold was only 30% of his salary, though the same was denied by PW23 but from the perusal of the evidence of DW6 and also on the basis that the prosecution has completely failed to prove basis of 60% towards house hold. The actual expenditure towards house hold should have been taken 30% of the total salary. The appellant respectfully submits that he has spend only 30% of his salary towards house hold and therefore, the actual amount towards house hold expenditure comes to the tune of Rs. 1,96,490/-.

On the basis of the chart placed on record alongwith the written submissions, it is submitted that the actual value of the inventories only comes to Rs. 1,66,458/- only. In this regard reliance has also been made to the statement of DW1, DW4, DW5, DW-7 and DW-9. Some other particulars have also been mentioned while calculating expenditure. Details thereof are given in para 23 of the written submissions. The appellant submitted that with respect to the expenditure taken into consideration by the trial Judge, the expenditure should have been calculated in the following manner:-

A revised chart was also submitted by the appellant to reflect as to what income ought to have been taken for the purpose of calculating his total income in the relevant period. It is submitted that in this manner the income of the appellant as available to him during the check period for the purpose of expenditure would come to Rs. 21,54,875/- and thus would prove that the during the relevant period he had the capacity to spent a sum of Rs. 19,39,190/-, which is the only amount ought to have been considered towards expenditure as per chart given below:-

Income before check period August, 79 to December, 95

For the purpose of calculating the deduction towards the house hold expenses we can follow the principle which the respondent has been following in other cases.

In this regard one of the judgment delivered by the Special Judge (Prevention of Corruption Act), Ratlam in a case initiated by SPE Lokayuktha, Ujjain has been brought to our notice in Sp. Case No. 01/2006, decided on March, 2006. In this case also, the respondent was being prosecuted on the allegation that he had disproportionate assets. The assessment with regard to the quantum of salary being used towards house hold expenses came up for consideration. Dealing with that specific preposition, the Special Judge framed a specific issue available in para 14 of the judgment in the following words:-

In this regard, the Special Judge also considered the question of adjustment towards salary which in this case was also considered to the extent of 60% for the purpose of calculating house hold expenses. In this regard, the Special Judge in para 17 of the judgment made the following observations:-

Paragraph 24 is also relevant which is reproduced hereunder:-

Learned counsel appearing for the Lokayukta has fairly conceded that no appeal has been filed by them against the aforesaid judgment. They also had not been able to show us any Rule which may decide as to what percentage towards the deduction of house hold expenses out of the salary/income of the appellant has been made to acquisition the disproportionate assets.

In this case, evidence has also come on record that the appellant belongs to an agricultural family. It is out of the contribution of the family members house hold expenses cannot be disputed. Therefore, proper percentage for deduction out of the income available to the appellant towards house hold expenditure to the tune of 40% would be disproportionate.

Respondent has denied the submissions made on behalf of the appellant. It has been submitted that the very declaration of the property in the income tax return would not amount to showing that it was acquired from the known sources of income of the assessee. Reference has been made to a judgment delivered by the learned Single Judge in the case of Permanand Jha Vs. State of M.P.,

However, this judgment is of no consequence in the light of the judgment of Hon''ble Supreme Court as discussed above. Another judgment cited is in the case of N. Ramakrishnaiah (Dead) through L.Rs. Vs. State of Andhra Pradesh 2009 CRLJ 1767. Even this judgment is not applicable because the gift received by the wife from her father that is also prior to the relevant period.

Having gone through the judgment of the trial Court we certainly find that each and every item has been taken into consideration by the trial Judge and even discussed in detail but the plea taken by the appellant that the available amount for expenditure out of the income should have been taken as 60% instead of 40% has not been considered. In the light of the judgment which we have referred to above, where a stand has been taken by the Lokayukta itself that 50% is the correct amount of expenditure which should have been considered for the purpose of calculating the available income in the hands of the accused in a case where the matter pertain to an officer in Ratlam. Taking peculiar facts of this case, the appellant being of a rural background we are of the considered view that in the absence of any such guidelines and any Rules framed by the Lokayukta, different % of the deduction from the salary towards house hold expenses only to the tune of 60%, we find it would be appropriate to allow deduction of only 40%. Taking this aspect a difference of 20% would come. Additional income would come in the hand of the appellant for the purpose of calculating his income. We have already referred to a revised chart in para 38 above.

It may be observed here that in the written submissions of the respondent made the following observations:

The appellant is averring that the expenditure part should be 40% and the saving part should be considered as 60% which was not the prevailing practice of the respondent at the time when the investigation of the instant case was initiated, therefore, calculation made by the appellant on the above basis is totally erroneous and against the practice followed by the SPE uptil now.

However, no document to support the prevalent practice has been filed on record whereas appellant has placed on record judgment delivered in the case of Lokayukta where the calculation of expenditure has been made @50%. In the peculiar facts and circumstances of the case, since the appellant come from an agricultural background, we take expenditure @ 40%. Taking all these facts into consideration, we find that the Lokayukta has not been able to prove beyond reasonable doubt that the appellant was in possession of the disproportionate assets for the purpose of holding him guilty of offence u/s 13(1)(e) and 13(2) of the Prevention of Corruption Act.

Accordingly, the judgment delivered by the trial Judge is set aside. The appellant is acquitted of the alleged offence by giving him benefit of doubt only. The appellant is on bail. His bail bond is discharged.

C.C. as per rules.