1. Appellant has filed this appeal against the judgment dated 11/08/2004 delivered in Special Case No. 2/98. By the aforesaid judgment the trial Court held the appellant guilty for commission of offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and awarded the sentence of RI two years and fine of Rs. 1,50,000/- in default of fine amount, RI for six months.
2. The appellant was working at the relevant time as Sub-Engineer in the Irrigation Department. The Lokayukta Organization received information that the appellant had property in excess to his known source of income. On the aforesaid basis, FIR at 0/94 was registered. The Lokayukta Organization conducted search at the house situated at Civil Line Sagar and thereafter at the house at Damoh and Bannad (Sagar). Inventories were prepared. The Lokayukta Organization on the basis of search found that at the relevant time, the income of the appellant was Rs. 6,04,228/- and total value of the property cash, Jewellery in the name of the appellant and his family members was Rs. 18,94,240/-. The competent authority granted permission to prosecute the appellant, thereafter, chargesheet was filed before the competent court of jurisdiction mentioning the fact that the appellant had acquired property in excess to his known source of income between the check period 01/01/1981 to October, 1994, hence he is liable for punishment.
3. Before the trial Court the appellant pleaded that the property was acquired from the income of the appellant and income of his family member including mother and mother-in-law. The appellant forwarded necessary information in regard to acquisition of property to the department time to time. Some of the property was in the name of mother and mother-in-law of the appellant which was purchased by them from their income. The trial court after appreciation of evidence has held that the income of the appellant during check period was Rs. 6,78,425/- and expenses were Rs. 10, 49, 510/-, hence the appellant had property valued at Rs. 3,03,243/- in excess to his known source of income. He did not offer plausible explanation and found the appellant guilty for commission of offence punishable under Section 13(2) of the Prevention of Corruption Act and awarded the sentence as mentioned above.
4. Learned counsel appearing on behalf of the appellant has submitted that the trial court has committed an error of law in holding that the appellant had excess property from his known sources of income. Mother and mother-inlaw of the appellant had their own income. They also deposed before the trial court that they had purchased immovable property from their own income. The persons from whom the property, lands and houses were purchased also deposed the same. The wife of the appellant received "Stridhan" during her marriage which has not been calculated. Some gifts were also offered to the family members. The income from agriculture land earned by mother of the appellant was also not assessed properly. The trial court further committed an error of law by holding that the appellant did not inform the department about acquisition of property, hence, the acquisition of property was contrary to law. In support of his contentions learned counsel relied on the judgment of the Apex Court delivered in the case of P. Nallammal and another Vs. State Represented by Inspector of Police 1999 SCC (Cri) 1133 and State of M.P. Vs. awadh Kushore Gupta and others 2004 SCC (Cri) 353.
5. Contrary to this learned counsel appearing on behalf of the Lokayukta Organization has submitted that the trial court has appreciated the evidence properly. The property which was seized during raid was not explained by the appellant. In accordance with the provision of M.P. Civil Services (Conduct) Rules, 1965, the appellant had to comply the provision of Rule 19 and he had to inform acquisition of property in the name of his relatives to the department. The trial court has rightly held the appellant guilty for commission of offence.
6. The trial court in para 78 of the judgment held that the appellant had received an amount of Rs. 6,78,425/- as his income on the following heads:-
"VERNACULAR MATTER OMITTED"
The appellant incurred expenses of Rs. 10,49,510/-
on the following heads:-
"VERNACULAR MATTER OMITTED"
Hence, there was disproportionate income of Rs.
3,03,243/- of the appellant. There is no dispute to the
effect that the appellant had purchased house at Damoh
situated at Housing Board Colony by investing an amount
of Rs. 1,93,340/-. The trial court further fixed the value of
articles and ornaments recovered from the house of the
appellant MIG 43 Damoh of Rs. 1,45,000/- Ex.P/31 is the
inventory prepared in regard to the articles recovered from
the house of the appellant it includes T.V. of Orson
Company, Double Bed, Sofa, Dinning Table, Dressing
Table and Iron Almirah. The appellant pleaded before the
trial Court that those articles had received by him during
his marriage. The aforesaid fact has been further proved
by wife of the appellant DW/4 and DW/5 Brij Naranyan
Choubey. List was also produced as Ex. D/12. It is further
mentioned in Ex. D/2 that Jawellery of Rs. 15,000/- was
also given at the time of marriage. Mother-in-law of the
appellant DW/2 deposed that she had given Refrigerator
and T.V. to the wife of the appellant and children. The
receipts were also produced. The trial court rejected the
claim of the appellant on the ground that the appellant had
not informed to the department in regard to receipt of
articles in accordance with the conduct Rules.
7. The appellant was born on 29/10/1952. His father was constable in the Police Department who was died in the year 1962. The mother of the appellant was pensioner. She purchased land of 6.94 acres in the year 1960. The appellant entered into government service in the year 1974. Younger brother of the appellant was working as Assistant Engineer in Irrigation Department. The appellant was married with his wife Vijaya in the year 1975. The appellant further pleaded that his father-in-law was owner of Bidi Factory and he had 60 Acres agriculture land. His mother-in-law Savitri Mishra was teacher in government department for last 35 years.
8. DW/2 Savitri Mishra mother-in-law of the appellant deposed that she had married with Deenanath Mishra, he had very good fortune and agriculture land near about 60- 65 acres. She came in government service as teacher in the year 1964 and retired in the year 2003. At the time of marriage she had given sufficient amount to the appellant and his wife. She had purchased a house at Sagar about 15-20 years before, from one Kapil Kumar in a consideration of Rs. 35,000/-. She further deposed that she had purchased the house at Civil Line, Sagar in her name and in the name of son of the appellant Mayank and she had paid the amount on behalf of Mayank. She further deposed that at the time of search Lokayukta Police had found inventory in the name of the appellant. She admitted that at the time of retirement she was getting salary of Rs. 9,000/- per month. She further deposed that she had received 20-22 tola Gold and 7-8 Kg. Silver in her marriage. During life time her husband purchased 750 gms of gold. She is also getting pension of Rs. 1600/- per month. There is no partition in the family.
9. Wife of the appellant DW/4 in her evidence deposed that at the time of marriage her mother had given gifts of Rs. 20,000/-, 15 tola gold 4.4 Kg. Silver. List was prepared which is Ex. D/12 and from that amount she had purchased land and my Tau had given me Rs. 25,000/- and I am earning Rs. 50,000/- from agriculture and I purchased four plots at Sagar.
10. DW/5 Brij Narayan Choubey deposed that he had prepared list of articles which were given to the appellant during marriage and an amount of Rs. 20,000/-, 17-18 tola Gold and 4-5 Kg. Silver was also given to the wife of the appellant and the list Ex. D/12 is of my signature.
11. DW/1 Vedwati Dubey is the sister of the appellant deposed that her younger daughter Tripti, niece Jyoti and sister-in-law Sakun were died in a road accident and after accident I resides in the house belonging to the appellant situates at MIG Colony Damoh. She had Rs. 10,000/- and Indira Vikas Patra of Rs. 10,000/- Ex. D/7, another Indira Vikas Patra of Rs. 5000/-. She further deposed that she had purchased a plot Ex. P/195 in the consideration of Rs. 10,000/- from Kashidas Dubey.
12. The trial court refused to count the articles on the ground that the appellant did not inform the department about the gift which he received during marriage and other occasions. Hence, it was an uncounted money.
13. Section13(1)(e) of the Prevention of Corruption Act reads as under:-
"13. Section 13(1)(e) reads thus:
13(1) A public servant is said to commit the
offence of criminal misconduct,-
(e) if he or any person on his behalf, is in
possession or has, at any time during the period
of his office, been in possession for which the
public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate
to his known sources of income.
Explanation.- For the purposes of this section,
''known sources of income'' means income
received from any lawful source and such receipt
has been intimated in accordance with the
provisions of any law, rules or orders for the time
being applicable to a public servant."
Explanation of the aforesaid section provides that
income received from any lawful source and such receipt
has been intimated in accordance with the provisions of
any law, rules or orders for the time being applicable to a
public servant. However, there was no such provision
under old act of Section 5(1)(e). The Prevention of
Corruption Act was amended w.e.f. 09/09/1988. Before the
aforesaid amendment Section 5(1)(e) was as under:-
"5. Criminal misconduct in discharge of
official duty - (1) A public servant is said to
commit the offence of criminal misconduct: -
(a) if he habitually accepts or obtains on agrees
to accept or attempts to obtain from any person
for himself or for any other person, any
gratification (other than legal remuneration) as a
motive or reward such as is mentioned in Section
161 of the Indian Penal Code; or
(b) if he habitually accepts or obtains or agrees
to accept or attempts to obtain for himself or for
any other person; any valuable thing without
consideration or for a consideration which he
knows to be inadequate, from any person whom
he knows to have been; or to be, or to be likely
to be "concerned in any proceeding or business
transacted or about to be transacted by him, or
having any connection with the official functions
of himself or of any public servant to whom he is
subordinate, or from any person whom he knows
to be interested in or related to the person so
concerned, or
(c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his own
use any property entrusted to him or under his
control as a public servant or allows any othe r
person so to do, or
(d) if he, by corrupt or illegal means or by
otherwise abusing his position as public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage, or
(e) if he or any person on his behalf is in
possession or has, at any time during the period
of his office, been in possession, for which the
public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate
to his known sources of income. "
14. The Apex Court in P. Nallammal and another Vs.
State Represented by Inspector of Police 1999 SCC
(Cri) 1133 has held as under in regard to the earlier
provision and the amended provision of Section 13(1)(e):-
"The above contention perhaps could have been
advanced before the enactment of the P.C. Act
1988 because Section 5(1)(e) of the old P.C. Act
did not contain an "Explanation" as Section 13(1)
(e) now contains. As per the Explanation the
"known sources of income" of the public servant,
for the purpose of satisfying the court, should be
"any lawful source". Besides being the lawful
source the Explanation further enjoins that receipt
of such income should have been intimated by
the public servant in accordance with the
provisions of any law applicable to such public
servant at the relevant time. So a public servant
cannot now escape from the tentacles of Section
13(1)(e) of the P.C. Act by showing other legally
forbidden sources, albeit such sources are outside
the purview of clauses (a) to (d) of the subsection.
"
It means that it was not necessary for the public
servant to inform the department in regard to receipt of
articles and income before amendment and introduction of
Section 13(1)(e) in the year 09/09/1988. The marriage of
the appellant was solemnized in the year 1975, hence, it
was not necessary for the appellant to inform the
department at the time of entering into the government
service about the cash and articles and ornaments which
he had received in the marriage from his mother-in-law.
15. In regard to non compliance of conduct Rule for the purpose of supply of information to department, the Apex Court in Ashok Tshering Bhutia Vs. State of Sikkim (2011) 4 SCC 402 has held as under:-
"40. The contention of the respondents regarding
non compliance of the Rules 1981 adversely
affecting the evidentiary value of Ext.D-4 must be
rejected for at least two reasons;
(i) The Rules 1981 are not rules of evidence.
The admissibility and probative value of
evidence is determined under the provisions
of the Indian Evidence Act, 1872. These
rules are merely service rules by which
government servants in Sikkim are expected
to abide. Consequently, the respondent has
not been able to provide any cogent reason
why the contents of Ext.D-4 should be
disregarded; and
(ii) Rule 19(i) of the Rules 1981 does
undoubtedly require government servants to
on first appointment to any service or post
and thereafter at the close of every financial
year submit to the government the return of
their assets and liabilities. However, it is to
be noted that the said rule envisages that
public servants will submit such returns in a
prescribed form. Despite being repeatedly
questioned by this Court, the respondents
were unable to produce such form. Thus, it
cannot be said that the appellant did not
comply with the said rule as in the absence
of such a form it was impossible for him to
have done so (through no fault of his own).
In any event, failing to submit such returns
even if there had been no such a form,
would make the appellant liable to face the
disciplinary proceedings under the service
rules applicable at the relevant time. The
provisions of the Rules 1981 cannot by any
stretch of imagination be said to have the
effect of rendering evidence inadmissible in
criminal proceedings under the PC Act 1988.
Thus, in such a fact situation, the appellant could
not be fastened with criminal liability for want of
compliance of the said requirement of the Rules."
16. The evidence establishes that fact that the motherCr. in-law of the appellant and his family members had good fortune. Hence, it is not impossible that they had not given an amount of Rs. 20,000/-, gold and silver to the appellant in his marriage because generally in hindu family at the time of marriage family members of the girl used to give gifts to the married couples. The person who had prepared the list Ex. D/12 Brij Narayan Choubey DW/5 in his deposition admitted the fact that he had prepared the list. Hence, the finding of the trial court that the Jwellery which was valued to Rs. 57,962/- as per inventory Ex. P/31 is to be counted in the income of the appellant is contrary to law. The appellant received jwellery during his marriage and the same was valued at the time of preparation of inventory at Rs. 57,962/-, hence, the aforesaid amount be deducted from the assets of the appellant.
17. Apart from this a cash amount was also given to the wife of the appellant in the form of Stridhan, it is near about 19,800/-. It is a common practice that family members and in-laws of newly married couples used to give gifts and money to them. Hence, it can safely be presumed that the wife of the appellant had spent the aforesaid amount in purchasing some property.
18. Mother-in-law of the appellant Savitri Mishra deposed that she had purchased the house situated at Civil Line Sagar by registered sale deed and she had paid the money on behalf of son of the appellant. Ex. P/19 is a registry in the name of Savitri Mishra and Mayank son of the appellant. It was recovered from the house of the appellant. The trial court has committed an error in holding that the appellant had invested an amount of Rs. 73,554/- out of total amount of Rs. 1,46,908. This finding is contrary to the evidence that the property was purchased by his mother-in-law Savitri Mishra and the plot is also adjacent to the house of mother-in-law. There is no reason for the appellant to purchase the plot and Kachcha house adjacent to the house of her mother-in-law.
19. The Apex Court in the case of State of M.P. Vs. awadh Kushore Gupta and others 2004 SCC (Cri) 353 has held as under in regard to known source of income:-
5. Section 13 deals with various situations when a
public servant can be said to have committed
criminal misconduct. Clause (e) of sub-section (1) of
the Section is pressed into service against the
accused. The same is applicable when the public
servant or any person on his behalf, is in possession
or has, at any time during the period of his office,
been in possession, for which the public servant
cannot satisfactorily account pecuniary resources or
property disproportionate to his known sources of
income. Clause (e) of sub-section (1) of section
13 corresponds to clause (e) of sub-section (1)
of section 5 of the Prevention of Corruption Act, 1947
(referred to as ''Old Act''). But there has been drastical
amendments. Under the new clause, the earlier
concept of "known sources of income" has
undergone a radical change. As per the explanation
appended, the prosecution is relieved of the burden
of investigating into "source of income" of an
accused to a large extent, as it is stated in the
explanation that "known sources of income" mean
income received from any lawful source, the receipt
of which has been intimated in accordance with the
provisions of any law, rules orders for the time being
applicable to a public servant. The expression
"known sources of income" has reference to sources
known to the prosecution after thorough
investigation of the case. It is not, and cannot be
contended that "known sources of income" means
sources known to the accused. The prosecution
cannot, in the very nature of things, be expected to
know the affairs of an accused person. Those will be
matters "specially within the knowledge" of the
accused, within the meaning of Section 106 of the
Indian Evidence Act, 1872 (in short the ''Evidence
Act'')."
6. The phrase "known sources of income"
in section 13(1)(e) {old section 5(1)(e)} has clearly
the emphasis on the word "income". It would be
primary to observe that qua the public servant, the
income would be what is attached to his office or
post, commonly known as remuneration or salary.
The term "income" by itself, is elastic and has a wide
connotation. Whatever comes in or is received, is
income. But, however, wide the import and
connotation of the term "income", it is incapable of
being understood as meaning receipt having no
nexus to one''s labour, or expertise, or property, or
investment, and having further a source which may
or may not yield a regular revenue. These essential
characteristics are vital in understanding the term
"income". Therefore, it can be said that, though
"income" is receipt in the hand of its recipient, every
receipt would not partake into the character of
income. Qua the public servant, whatever return he
gets of his service, will be the primary item of his
income. Other incomes which can conceivably are
income qua the public servant, will be in the regular
receipt from (a) his property, or (b) his investment. A
receipt from windfall, or gains of graft, crime, or
immoral secretions by persons prima facie would not
be receipt from the "known sources of income" of a
public servant.
7. The legislature has advisedly used the expression
"satisfactorily account". The emphasis must be on
the word "satisfactorily" and the legislature has,
thus, deliberately cast a burden on the accused not
only to offer a plausible explanation as to how he
came by his large wealth, but also to satisfy the
Court that his explanation was worthy of acceptance.
20. The Apex Court further in DSP Chennai Vs. K.
Inbasagaran (2006) 1 SCC 420 has held as under in
the fact when the family members including wife claimed
ownership of the property and articles seized by the
prosecuting agency.
"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
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 could
be laid in his hands. The question is when the
accused has provided satisfactorily explanation
that all the money belonged to his wife and she
has owned it and the Income-tax Department has
assessed 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 or as the case may be, it cannot be
fastened on the husband or head of family. It is
true that the prosecution in the present case has
tried its best to lead the evidence to show that all
these moneys 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 return and she has accepted the
whole responsibilities, 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
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 the 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 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 the possession and the premises in question
was 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 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 "
21. The Principle laid down by the Apex Court is that
every receipt would not partake the character of income
and the burden is on the accused to explain satisfactorily
about acquisition of property and income. The income and
property which had been acquired by relatives or family
members who have sources of income and they had
income at the relevant time to acquire the property could
not be turned down.
22. In the result, the finding recorded by the trial court that the Jwellery and articles for personal use including Refrigerator and T.V. valued to Rs. 1,15,000/- are to be included in the income of the appellant is contrary to law because the family members as discussed above claimed that they have given Jwellery and articles to the appellant.
23. Another finding that the appellant purchased the property in the name of his wife, son and mother valued to Rs. 1,67,000/- as "benami" is also against the law because family members have not been arrayed as an accused and they explained properly that they had sources of income to purchase the property. The agriculture expenditure of Rs. 42,000/- incurred by wife of the appellant has been added in the name of the appellant, however, she had given cogent explanation and it is contrary to the receipt of the Tehsildar. Hence, this amount has also been added by the trial court in the income of the appellant erroneously. If this amount is excluded then the income of the appellant cannot be said to be disproportionate to known source of income. Hence, the appellant is entitled to benefit of doubt.
24. The appeal filed by the appellant is hereby allowed. The judgment of the trial court holding guilty of the appellant for commission of offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and sentence awarded is hereby set-aside. It is further directed that the documents which were seized by the police in regard to property of the appellant and valuable securities be returned back to the appellant. His bail bonds are hereby discharged.
