- (1.) THE State of Rajasthan has preferred this appeal against the judgment dated 7. 4. 1986 passed by the Special Judge, Anti-corruption Cases, Jodhpur by which the respondent Dulichand has been acquitted.
(2.) THE State through Anti-corruption Department submitted a challan against respondent Dulichand under section 5 (1 ) (d)& (e) of the Prevention of Corruption Act (hereinafter referred to as the Act ). On 2. 6. 1970 Shri Satya Prakash Tyagi, Dy. S. P. Anti-corruption took the search of the house of Dulichand situated near Nala Bazar, Ajmer and prepared the report Ex. P. 14. In this search Rs. 43200/- in cash, fixed deposit receipts of Rs. 23600/-, one scooter of value of Rs. 3286/-, gold ornaments worth Rs. 12,000, one biscuit of gold weighing ten tolas valuing Rs. 2,000/- were found in the house of the accused. It was further stated that during the period 1. 11. 1965 to April, 1970, Rs. 6007/- were deducted from the salary of the accused towards the premium of State Insurance. Thus according to the prosecution in all the property worth Rs. 90093/- was found. During the period 4. 11. 1944 to 1. 4. 70 the accused received Rs, 80578/- as salary and Rs. 2471/- and Rs. 12782/- were earned as rent and interest respectively. Therefore Rs. 95831/- were earned by the accused through all above sources. According to the prosecution the accused could have saved Rs. 26826/- only, i. e. 30% of the total amount and, therefore, from all sources he could have only collected or earned Rs. 42079/. The property recovered from the accused was, therefore, in excess of his income sources. With these allegations after completing the investigation in the case a challan was submitted before the Special Judge, Anti-corruption Department, Jaipur which was lantern transferred to the Special Judge, Anti-corruption Department, Jodhpur. The learned Special Judge framed charges under section 5 (l) (e) read with 5 (ii) of the Act and under section 168 I. P. C. The accused pleaded not guilty and claimed trial. To establish the case against the accused, the prosecution has examined ten witnesses. The accused has denied all the allegations made against him. No defence evidence was led. The trial court after concluding trial did not find the charges established against the accused person and hence acquitted from the charge u/s 5 (1 ) (e) read with section 5 (2) of the Act. From the offence u/s 168 I. P. C. the accused preferred a revision petition in this Court which was accepted and he was discharged from the charge u/s 168 I. P. C. The learned Public Prosecutor argued that the judgment of the Special Judge is against law and the facts on record. The Trial Judge has erred in disbelieving the statement of the prosecution witnesses. The recovery of gold weighing ten tolas has been proved by P. W. 4 Satya Prakash, Dy. S. P. and Kishan Lal P. W. 5, the recovery witness. Inspite of this the trial court has disbelieved the statement of these witnesses and held that the prosecution has failed to prove the seizure of gold. This finding is not correct. Shri Satya Prakash was the Police Officer of the rank of Dy. S. P. and his testimony is of sterling worth. There is no reason to disbelieve the statement of Shri Satya Prakash. It was argued that the learned trial court has erred in treating the travelling allowance as income. When a public servant goes on travelling duty, he spent money and incur expenses during his travelling so the amount of travelling allowance is not an income and the trial court has committed this error in treating it as an income. The trial court has also committed error in not considering the amount of Rs. 32000/- which was recovered from the residence of the accused as not the money of the accused and has incorrectly held that it was the income of shop of Duli Chand Prabha Chand. Regarding amount of Rs. 23600/- which was in the shape of fixed deposit receipts in the name of Smt. Sarjudevi, wife of the accused it was argued that the trial court has erred in not accepting this amount as income of the accused. Shrimati Sarjudevi has no source of income, so this money was of the accused himself The trial court has also erred in considering that the scooter was purchased after taking loan from the firm Dulichand and Prabha Chand and the accused had only paid Rs. 286/- from his pocket. The trial court has also erred that on 2. 6. 70 the property worth Rs. 28400/- was in possession of the accused. The property worth Rs. 90093/- was recovered at the time of search. Thus the difference between the property in possession of the accused is Rs-61692/ -. The whole salary income of the accused will be Rs. 80578/- being his salary and Rs. 2471/- and Rs. 12078/- being rent and interest amount, is the income of the accused. So the property found in possession of the accused at the time of search was in excess of the income.
(3.) LEARNED counsel for the accused argued that the learned trial court has discussed each item in the judgment elaborately. The trial court held that gold ornaments worth Rs. 12,000/- is 'stridhan' of Smt. Sarjudevi wife of the accused. The trial court has also held that the prosecution has failed to prove Chat gold weighing ten tolas was found during search in the house of the accused. The recovery witness Kishanlal has not supported the prosecution story. The Dy. S P. Shri Satya Prakash too did not say that the article alleging to be gold was recovered from the house of the accused. Therefore, the recovery regarding gold weighing ten tolas has not been established. A sum of Rs. 6007/- has been added in the income by the trial court being the amount of premium paid to State Insurance, and the trial court has correctly added this income. With regard to amount of Rs. 23600/- it was argued that this includes Rs. 16915/- as F. D. receipts and Rs. 6685/- as interest on the F. D. receipts. The court has correctly concluded with regard to this amount. There is clear finding of the court and it is correct that Rs. 32000/- recovered from the house of the accused belong to Dulichand Prabhachand shop. The accused has proved this aspect through Rokar Bah' Ex P. 22, which was produced by the prosecution itself It was also argued that 2 accused has proved that he had taken loan of Rs. 3000/- from the shop of Dulichand Prabhachand for purchasing scooter and from his pocket he had on1 J a sum of Rs 286/ -. Regarding salary during the period from 1. 4 44 to 1/; the contention of the accused was that he received salary Rs. = 86176. 32 while according to the prosecution the salary comes to Rs. 80578/ -. . There is not much difference in this amount. The accused has also not denied that he had received interest and rent as alleged by the prosecution. The prosecution has admitted that from the salary the accused had a saving of Rs. 26826/ -. So the argument advanced on behalf of the accused is that the trial court had correctly held that the accused has explained the property worth Rs. 61692/- and according to the prosecution allegation the property worth. Rs, 90093/- was found in possession at the time of search. So the trial court has correctly held that the property worth Rs. 28401/- could be said to be in possession of the accused. From the saving of the salary and adding the amount of interest and rent Rs. 42790/- comes to the accused so it cannot be said that the accused had in excess to his savings or has disproportionate assets with him. Considered the arguments advanced by both the learned counsel and perused the record of this case. 1 have also perused the judgment of the trial court and found that the learned trial court has elaborately discussed each item in separate paras in the judgment. I have gone through the statements of P. W. 4 Satya Prakash, Dy. S. P. and P. W. 5 Kishanlal with regard to recovery of ten tolas gold worth Rs. 2,000/ -. The learned trial Judge has discussed the statement of both these witnesses in the judgment and has disbelieved their testimony. There is nothing to disagree with the conclusion arrived at by the trial court in this respect. The prosecution has failed to prove that the recovery of gold was from the house of the accused. It was for the prosecution to prove that the thing which was recovered was gold and it was also to be proved that it was actualiy recovered from the house of the accused but this fact has not been established by the prosecution as is clear from the statement of Kishanlal and Satya Prakash and the trial court has rightly disbelieved these two witnesses. There is nothing on the record to prove that the gold ornaments worth Rs. 12,000/- were not 'stridhan, of Smt. Sarjudevi. This aspect has been dealt with by the trial court and there is nothing contrary to the contention of the accused that this is the 'stridhan' and the trial court has correctly held so. From the 'rokar Bahi' Ex. P. 22 which was seized by the prosecution from the shop of Dulichand Prabhachand it has been established by the accused that the amount of Rs. 32000/- which was lying at his house belong to the shop. This amount was not his personal amount. There is nothing contrary to this contention and the prosecution has failed to prove that this amount actually belong to the accused and it did not belong to the shop Dulichand Prabhachand. Therefore, the learned trial court has not committed any error in coming to the conclusion that this amount of Rs. 32000/- belong to the shop Dulichand Prabhachand. The F. D. receipts were in the name of Smt. Sarjudevi. The contention of the prosecution is that as Sarjudevi has no source of income this money is of the accused. Regarding this contention there is no-proof produced by the prosecution. Mere assertion of these allegations that the F. D. receipts belongs to the accused is not sufficient. These receipts in the name of Smt. Sarjudevi and the trial court has rightly held so. Apart from this, the accused has himself admitted that the F. D. receipt of Rs. 23600/- includes Rs, 16915/- as principal amount and Rs. 6685/- as interest and he admitted that the principal amount has been deposited by him. Regarding Rs. 6007/- the amount of premium was deducted from the salary of the accused. This premium was deducted at source from the salary of the accused and this amount has not been included in the salary as mentioned by the prosecution. The trial court has correctly held that this item has been explained by the accused. This is not the income which was received at the hand of the accused but it was the amount of premium which was deducted from his salary at source and the amount is deducted from the salary of the employee before making payment of the salary. ;