BHAGWATI, J. - (1.) THE principal question which arises for determination in this appeal is whether in the facts of the present case the prosecution was justified in invoking the applicability of the presumption contained in sub-section (3) of S. 5 of the Prevention of Corruption Act, 1947. That sub-section provides that in any trial of an offence punishable under sub-section (2) of S. 5, namely, the offence of criminal misconduct committed by a public servant in the discharge of his duty, the fact that the accused is in possession for which he cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may by proved and on such proof, it is presumed unless contrary is proved that the accused is guilty of criminal misconduct in discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption. THE sub-section consists of two parts. THE first part sets out the facts which if proved give rise to a rebuttable presumption. It requires, in order to the raising of this presumption, that the accused must be shown to be in possession of pecuniary resources or property disproportionate to his known sources of income and he should be unable to satisfactorily account for such pecuniary resources or property. If these facts are shown to exist a presumption would be raised by the court trying the offence that the accused was guilty of criminal misconduct in the discharge of his official duty. This presumption would of course be a rebuttable presumption and it would be open to the accused to establish that despite the disproportion of his pecuniary resources or property to his known sources of income, he is not guilty of criminal misconduct in the discharge of his official duty. THE burden of displacing the presumption would be on burden, he would be liable to be convicted for the offence under sub-section (2). Both the Special Judge as well as the High Court convicted the appellant with the aid of this presumption though the specific charges levelled against the appellant under clauses (a) to (f) of the charge were held not established by the High Court. It was contended on behalf of the appellant that since the specific charges preferred against the appellant failed, it was not competent to the Special Judge and the High Court to convict the appellant merely on the basis of the presumption. THE argument was that presumption ocular be invoked by the prosecution only by reference to a charge under any one or more of clauses (a) to (d) of sub-section (1) of Section 5 and for the purpose of establishing such charge, but if the charge under one or more of clauses (a) to (b) of sub-section (1) of S. 5 failed, the presumption could not be invoked because it could be applied only in aid of the charge under the main provision in sub-section (1) of Section 5 which defines the offence of criminal misconduct in discharge of official duty and did not operate in vacuum. Prima facie we do not think there is any substance in this contention urged on behalf of the appellant but in the view we are taking on the facts we do not think it necessary to pronounce any final opinion upon it. Let us consider the facts and see whether they at all attract the applicability of the presumption in sub-section (3) of S. 5.
(2.) THE first question which must be considered in order to determine the applicability of the presumption in sub-section (3) of S. 5 is as to what was the total income of the appellant during the period between 29/11/1949 when he jointed service as Income-tax Officer and 1/01/1962, being the date with reference to which the prosecution sought to establish the disproportion of the pecuniary resources or assets of the appellant qua his known sources of income. It was conceded on behalf of the prosecution that the aggregate income of the appellant during this period was Rupees 1,12,515.43 as per the following particulars : JUDGEMENT_816_1_1977Html1.htm and we need not, therefore, dwell on the items of income enumerated in these particulars. The appellant, however, sought to add certain other items of income to this list and since these were disputed on behalf of the prosecution, we shall deal with them in seriatim. The first item of income related to profit on sale of gun. The appellant claimed that he had purchased gun No. DBL 1004-49 for Rs. 600.00 and this gun which was held by him under Licence No. 502/1 was sold on 18th or 19/09/1952 for Rs. 900.00 and that resulted in a profit of Rs. 300.00 which was liable to be included in determining the total income received by him. The Trial Court did not accept this claim of the appellant on the ground that he had not examined Ram Ratan to whom the gun was sold. Moreover, 30 cartridges had been purchased by him on 7/03/1953 for a 12-bore gun bearing licence No. 502/1 which showed that he still had his gun No. DBL 1004-49 and he had not sold it on 18th or 19/09/1952. This conclusion of the Trial Court is patently erroneous since it overlooks the fact that when one gun is sold and another is purchased, the licence which is issued in the name of the holder of the gun remains the same and it is only the number of the new gun which is substituted for the number of the old gun in the licence. The appellant sold gun No. DBL 1004-49 on 18th or 19/09/1952 for Rs. 900.00 and immediately thereafter on the next day purchased another gun of ww Greener make for the same amount, namely, Rs. 900.00 and, therefore, licence No. 502/1 continued to stand in his name with ww Greener gun being substituted for gun No. DBL 1004-49. Both these guns were 12-bore guns and, therefore, the purchase by the appellant of 30 cartridges on 7/03/1953 for a 12-bore gun under licence No. 502/1 did not contradict the claim of the appellant that he had sold his gun No. DBL 1004-49 for Rs. 900.00 on 18th or 19/09/1952. There is, in the circumstances, no reason to reject the claim of the appellant in regard to this item and a sum of Rs. 300.00 being profit arising on the sale of gun No. DBL 1004-49 must be added to his income.
(3.) THE second item of income claimed by the appellant related to a sum of Rupees 5,300/- said to have been received by him from his father for purchase of an Austin car in 1948. THE Trial Court disbelieved the case of the appellant in regard to this item and held that the appellant had failed to satisfy the court that this sum of Rs. 5,300.00 was received by him from his father in 1948. We do not think the Trial Court was right in rejecting the claim of the appellant. THE conclusion of the Trial Court proceeded more on distrust and suspicion than on appreciation of evidence. Not only did the appellant state on oath that he received the sum of Rs. 5,300/- from his father for purchase of an Austin car but this statement was supported by the evidence given by the father in the departmental enquiry held against the appellant where the father clearly stated that a sum of Rs. 5,300.00 was given by him to the appellant in cash after withdrawing it from the bank for purchase of car vide answer to question No. 5 in Ex. D-104. Sachidanand, brother of the appellant, also stated in his evidence as D. W. 31 that in 1948 the appellant had purchased a car and at that time his father had withdrawn a sum of Rs. 5,700.00 from his banking account and out of that, he had given a sum of Rs. 5,300.00 to the appellant. THEre was no serious cross-examination of Sachhidanand on this point and there is no reason why this statement of his should not be accepted, particularly when it is supported by a debit entry of Rs. 5,700.00 under date 25/09/1948 in the account of the father of the appellant with the State Bank of India, Lucknow Branch Ex. D-126. THE entire evidence in regard to payment of the sum of Rs. 5,300.00 by the father of the appellant to him (the appellant) in 1948 for purchase of an Austin car is in favour of the appellant and there is absolutely no evidence on the side of the prosecution which would disprove this claim of the appellant. THE only circumstance on which reliance was placed by the Trial Court for the purpose of disbelieving the evidence led on behalf of the appellant was that the father of the appellant was a man of poor means who had about eleven children and he could not possibly have given the sum of Rs. 5,300.00 to the appellant. But there is absolutely no evidence to show that the father of the appellant was in poor circumstances. It is true that the father of the appellant was an ordinary clerk and after his retirement he was earning a small pension, but the evidence of Dr. Sudama Prasad Gupta D. W. 20 clearly shows that the father of the appellant owned two villages and he had also about seven house belonging to his Hindu Undivided Family in addition to two shops and a plot of land in Shahjehanpur City. Moreover, according to the case of the appellant, the sum of Rs. 5,300.00 given to him by his father came out of a sum of Rupees 5,700/- withdrawn from the banking account of his father and the statement of account Ex. D-126 clearly showed that his father had sufficient monies in his banking account and the sum of Rs. 5,700.00 was in fact withdrawn from that account. We do not, therefore, see any valid reason why the trial court should have disbelieved the case of the appellant that a sum of Rs. 5,300.00 was given to him by his father in 1948 for purchase of an Austin Car. THE High Court was wrong in disallowing this claim of the appellant. That taken us to the third item of income claimed by the appellant which relates to a sum of Rs. 7,000.00 said to have been received by the appellant from his father in 1956 for purchase of a car. The case of the appellant was that in 1954 he sold his Austin car for Rs. 2,500.00 to his brother-in-law S. M. Pandey and with the help of this amount of Rs. 2,500.00 and a further sum of Rs. 7,000.00 received from his father in the end of June 1956, he purchased a new car in August 1956 from M/s. Premier Automobiles, Lucknow for Rs. 9,200.00 after obtaining the permission of then Commissioner of Income-tax, Lucknow. This claim of the appellant was not accepted by the Trial Court which refused to believe that a sum of Rs. 7,000.00 was given to the appellant by his father. Here also we find that the Trial Court proceeded entirely on distrust and suspicion and brushed aside the evidence led on behalf of the appellant without any valid justification. The evidence led on the side of the appellant for the purpose of proving the receipt of Rs. 7,000.00 from his father was indeed overwhelming. Not only did the father of the appellant affirm in his statement Ex. D-104 that he had given a sum of Rs. 7,000.00 to the appellant for the purchase of a new car after withdrawing the amount from the bank, but his brother Sachhidanand D. W. 31 also stated in his evidence: "When he purchased a car in 56 Rupess 7,000/- were paid - I had gone to withdraw Rs. 7,000.00 from the Post Office Savings Bank, which were given to K. M. Agnihotir. Arts. M. and N are the Savings Bank Pass Books. Art. M is in the name of my younger brother Ramanand. This is a Minor Account. In 53 Ramanand's age was about 8-9 years. The account of Art. N is in the name of my father. My father used to deposit money in Ramanand's account. On 26-61956 Rs. 2,000.00 was withdrawn in Art. M and the entry is at A to A. Rupees 5,000/- were withdrawn from the Pass Book Art. N, its entry is at A to A. After withdrawing these amounts I had handed it over to my father. Afterwards my father had given this money to K. Agnihotri in my presence." Article M, which was the Pass Book in respect of the account in the name of Ramanand, showed a withdrawal of Rs. 2,000.00 on 26/06/1956 and so also Article N, which was the Pass Book in respect of the account of the appellant's father, showed a withdrawal of Rs. 5,000.00 on the same day. These entries clearly supported the oral evidence given by Sachhidananad D. W. 31. But the story of the appellant does not rest merely on this oral evidence. The same story was put forward by the appellant as far back as October 1960 long before any departmental enquiry was contemplated against the appellant, when in reply to a letter addressed by the Inspecting Assistant Commissioner demanding information in regard to the purchase of the car in August 1956, the appellant stated in his letter Ex. P-730 that he had purchased the car for a sum of Rupees 9,200/- which was made up of Rs. 7,000.00 received from his father and Rs. 2,500.00 representing the sale proceeds of the Austin car. We fail to see how in the face of this overwhelming evidence the Trial Court could hold that the sum of Rs. 7,000.00 was not received by the appellant from his father. It is difficult to understand on what material the Trial Court could disbelieve this claim of the appellant, particularly when there is no evidence at all on the side of the prosecution to disprove it. We must accordingly hold that a sum of Rs. 7,000.00 was received by the appellant from his father for purchase of car and that must be added to his total income. ;