M.P. Thakkar J. - (1.) An I.P. Official recruited in 1935 was placed under suspension in 1965 after he had put in about 30 years of service. At that point of time he was discharging his duties on the post of Inspector General of Police in Andhra Pradesh. A number of charges were levelled against him under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act. The F.I.R. was lodged more than two years later on August 17, 1967. The charge sheet was filed four years thereafter in 1971. In regard to all the serious charges levelled against him, he was acquitted. He has been convicted on a relatively minor charge of having employed in 1960 (seven years before the F.I.R. and eleven years prior to the charge sheet) one Head Constable and two Police Constables to work as Masons in order to do the patch work on walls at the house belonging to him. The Head Constable and two Police Constables on whose evidence reliance is placed by the prosecution are PWs 27, PW 29 and PW 35. Their statements were recorded in July and August, 1968 some eight years after they are alleged to have worked free of charge for the accused. The Statements of PW 27, PW 29 were recorded on July 13, 1968 whereas that of PW 35 was recorded on August 2, 1968. In other words, all the three statements were recorded about one year after the F.I.R. was lodged. Accordingly in the F.I.R. there is no mention regarding the charge pertaining to the alleged free services extracted from PW 27, PW 29 and PW 35 in 1960. These three witnesses have stated that they have done masonry work at the instance of one Prasad Rao who was at the relevant time Judgment dated September 28, 1988 in Criminal Appeal No. 191 of 1978. an Assistant Commissioner of Police (A.C.P.) at Hyderabad. It is the prosecution case that these three witnesses had done masonry work at the residential house which was the private property belonging to the then Inspector General of Police Shri A.K.K. Nambiar, the accused. The High Court has confirmed the finding of guilt recorded by the trial court on the ground that while there were minor discrepancies there was no reason to disbelieve these witnesses. The High Court has made no real effort to evaluate the evidence of these three witnesses in the light of the infirmities pinpointed by the defence viz : 1. The statements of these three policemen who were readily available were recorded for the first time seven years after they are alleged to have done this work. 2. These witnesses had not adverted to the fact that they had done the patch work on the walls in their statements before the police. 3. Their evidences taken at face value also does not connect the accused with the crime in the sense that none of these witnesses deposed that the accused had asked them to work at his residential house or that he was aware of it. According to the witnesses, ACP, Rao had directed them to do the work. The prosecution did not examine Shri Prasad Rao as a prosecution witness, The defence on the other hand examined him as DW 13. Mr. Rao stated in the Court that he had never employed any of the three policemen to do any such work The defence also examined a Contractor, DW4, Ethirajaiah who stated that he had done the work on contract basis. In this state of evidence neither the trial court nor the High Court could have recorded a finding of guilt against the accused. The prosecution evidence is thoroughly unsatisfactory and deserves to be rejected. We, therefore, set aside the finding of guilt unhesitatingly In the result, the order of Conviction and sentence recorded by trial court as confirmed by the High Court must also be set aside. The appeal is, therefore, allowed. The original accused, Shri A.K.K. Nambiar, is acquitted of the offence for which he has been convicted by the trial court and the High Court.
(2.) It appears that Shri Nambiar has died during the pendency of the present appeal which has been continued by his widow under Section 394 of the Code of Criminal Procedure. Since the order of Conviction rendered by the High Court held the field and the present appeal against the order of Conviction and sentence was pending, the pension and retirement benefits have not been paid to the widow. Now that we have reversed the High Court and acquitted the accused honourably, the concerned authorities will have to make payment of the retirement benefits to the legal heirs of the deceased with expedition. We hope they will do so by December, 31, 1988 and in any case latest by 31st March, 1989. Shri Nambiar was presumably not paid the salary for the period during which he was under suspension. The authorities will therefore do the needful in order to make payment of. the difference between the salary due to him and the subsistence allowance which might have been paid to him. This payment also shall have to be made within the time-bracket specified earlier. The widow of the original accused has suffered tremendously, we therefore wish to request the competent authority not to indulge in any delay and to ensure that the payment of the retirement dues etc. is made promptly and in any case latest by 31st March, 1989. In regard to the payment of the difference in salary, we direct as under : Since the amount will be paid in one lump sum, it is likely that recourse may be made to Section 192 of the Income Tax Act, Act 1961 which provides that any person responsible for paying any income chargeable under the head Salaries shall, at the time of payment, deduct income-tax on the amount payable at the average rate of income computed on the basis of the rates in force for the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year. If, therefore, deduction of income-tax as provided by Section 192 is sought to be made, we would like to make it abundantly clear that the appellant would be entitled to relief under Section 89 of the Income-tax Act which provides that where by reason of any portion of assesses salary being paid in arrears or in advance by reason of his having received in any one financial year salary for more than 12 months or a payment which under the provisions of clause (3) of Section 17 is a profit in lieu of salary, his income is assessed at a higher rate than that it would otherwise have been assessed, the Income-tax Officer shall on an application made to him in this behalf grant such relief as may be prescribed. The prescribed relief is set out in Rule 21-A of the Income-tax Rules. The appellant is entitled to relief under Section 89 because salary which has been in arrears is being ordered to be paid any relief should be given as provided by Section 89 of the Income-tax Act, 1961 read with Rule 21-A of the Income-tax Rules, 1962. The appellant is indisputably entitled to the same. If any application is required to be made, the appellant may submit the same to the competent authority which will dispose it of expeditiously. The appeal is allowed and is disposed of accordingly.;