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TMI Blog1981 (5) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. The Inspector made a recovery of ₹ 26,870 in cash from an almirah, savings bank accounts in the names of the respondent, his wife and children totalling to ₹ 12,588.35, national savings certificates worth ₹ 510, postal savings certificates worth ₹ 184.25 in the name of his daughter, Nandini, savings bank deposits with the State Bank of India and the postal savings certificates in the name of his brother-in-law, Narayan, amounting to ₹ 2,279.05, gold and silver ornaments, household effects etc. of the value of ₹ 8,602.50, two sale-deeds in respect of two plots bearing Khasra Nos. 28/1K and 28/1Dh in Chandrapur purchased (1) in the name of his wife, Smt. Sushila for ₹ 5,250 and (2) in the joint names of his wife, Smt. Sushila and his brother-in-law, Narayan for an amount of ₹ 21,210, papers relating to the building of a house at village Gondpipri built in the year 1965 at a cost of ₹ 10,000. The petitioner was accordingly put on trial for having committed an offence punishable under s. 5(2) read with s. 5(1)(e) of the Act, being found in possession of assets disproportionate to his income. The respondent abjured his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea that he was leading a frugal life and, therefore, was able to make a saving of ₹ 15,000 out of his salary income. He accordingly sentenced him to undergo rigorous imprisonment for two years and to pay a fine of ₹ 26,870. He further directed that the two plots at Chandrapur and the house at village Gondpipri be sold and the sale proceeds be forfeited. On appeal, a learned Single Judge of the High Court set aside the judgment and sentence passed by the learned Special Judge and acquitted the respondent. The order of acquittal was based principally on two grounds: (1) The prosecution having failed to discharge the burden of disproving all possible sources of income i.e. failed to account for the properties left by the respondent's father- in-law, Haumanthu, he could not be convicted under s. 5(2) read with s. 5 (1)(e) of the Act, and (2) it was not possible to exclude the probability that the property found in the respondent's house could be the property left by his father-in-law, Hanumanthu. In coming to the conclusion that it did, the High Court was of the view that the changes brought about by the Anti- Corruption Laws (Amendment) Act, 1964 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person if guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption. Three questions arise for our consideration in this appeal, namely: (1) Whether a public servant charged with having disproportionate assets in his possession, for which he cannot satisfactorily account, cannot be convicted of an offence under s. 5(2) read with s.5(1)(e) of the Act unless the prosecution disproves all possible sources of his income (2) If the prosecution establishes that a public servant is in possession of pecuniary resources or property disproportionate to his known sources of income, whether the burden to disprove the charge shifts to the accused to satisfactorily account for the source of acquisition of such resources or property. and if so, the nature and extent of such burden on the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operate in two different fields, the meaning to be assigned to them must be the same. The expression known sources of income means sources known to the prosecution . So also the same meaning must be given to the words for which the public servant is unable to satisfactorily account occurring in s. 5(1)(e). No doubt, s. 4(1) provides for presumption of guilt in cases falling under ss. 5(1)(a) and (b), but there was, in our opinion, no need to mention s. 5(1)(a) therein. For, the reason is obvious. The provision contained in s.5(1)(e) of the Act is a self-contained provision. The first part of the Section casts a burden on the prosecution and the second on the accused. When s. 5(1)(e) uses the words for which the public servant is unable to satisfactorily account , it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under s. 5(2) read with s.5(1)(e) of the Act unless the prosecution disprove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Public Prosecutions. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in Swamy's case (supra), the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of s.106 of the Evidence Act, 1872. Section 106 reads: s. 106. when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this connection, the phrase the burden of proof is clearly used in the secondary sense namely. the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. Such being the law, the question whether or not the respondent had established a preponderance of probability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Zamindar had rich forests. He tells us that he knew Hanumanthu well because he was the pairokar of Raja Dharmarao, that Hanumanthu enjoyed great confidence of the Zamindar and had free access to him because his two sisters were the kept mistresses of the Zamindar. His evidence shows that the ladies were well provided for and whenever they visited Hanumanthu they used to hand over their cash, ornaments and jewellery to him for safe custody. His evidence also shows that Hanumanthu was a man of affluence and that he and his father had a liquor shop besides forest contracts. Hanumanthu also used to deal in money-lending business. The respondent has also placed on record documents showing that Hanumanthu was a man of substantial means. To add to the difficulty of the prosecution, Smt. Sushila, AW 11, sister-in-law of the respondent has come and deposed that all the property belonged to her father. All this evidence is sufficient to create a doubt as to whether the respondent was in possession of disproportionate assets. There is certainly a preponderance of probability that the property found in the possession of the respondent did not belong to him but belonged to his fat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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