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TMI Blog2017 (8) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes was subjected to a trial involving fleeting frames of accusations of which he was denied prior notice. This is clearly opposed to the fundamental precepts of a criminal prosecution. A person cannot be subjected to a criminal prosecution either for a charge which is amorphous and transitory and further on evidence that is conjectural or hypothetical. The appellant in the determinations before the Courts below has been subjected to a trial in which both the charges and evidence on aspects with vital bearing thereon lacked certitude, precision and unambiguity. In case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or property disproportionate to his known sources of income. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had thereby committed an offence under Section 13(1)(e) read with Section 13(2) of the Act. 4. The Trial Court framed charge under the aforementioned sections of law, punishable under Section 19 of the Act to which the appellant pleaded not guilty and demanded trial. 5. As the charge would disclose, the appellant during the check period was shown to have earned total income of Rs.1,95,637/- and after accounting for an expenditure of 60% thereof towards household needs, he had a saving of Rs.79,045/-. However, having regard to his bank deposits and his investments in plots and a house that he had built on one of those, he had expended thereby an amount of Rs.9,89,670/- during the said period and thus was possessed of assets to the tune of Rs.7,94,033/- which was disproportionate to his known sources of income. 6. At the trial, the prosecution adduced oral as well as documentary evidence. Its witnesses included amongst others Inspector A.J. Khan (PW6), the investigating officer and Inspector, Roop Singh Solanki (PW2) who did follow up the investigation taking the baton from PW6. As the testimony of these two witnesses is of decisive bearing and demonstrable from the an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of Rs.1,95,637/- during the check period was patently incorrect. It referred to documents on record and worked out for itself the pay which the appellant was supposed to earn during the periods omitted by the prosecution and computed the same to be Rs.1,93,208/- and adding the amount so calculated concluded that the appellant s income from pay during the check period was Rs.3,06,335/- which together with interest on the amount deposited in the bank came to be Rs.3,07,652/-. It deducted 60% therefrom towards expenses for the family needs and determined Rs.1,23,061/- to be his savings under that head. 10. Similarly, the Trial Court referred to the documents on record produced by the prosecution with regard to the agricultural lands at Devbhilai and Baghoda villages in the name of the appellant, his father and two brothers which disclosed an annual income of Rs.1,35,000/- including the cost of agriculture etc. Though the Trial Court initially was reluctant to accept this figure in absence of any clarification offered by the appellant albeit the evidence to that effect was produced by the prosecution, it eventually acted on the same and after deducting 60% therefrom towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in support thereof. This is noticeably in the face of the admission of the prosecution that while levelling the charge against the appellant of acquisition of assets disproportionate to his known sources of income, it had not accounted for his income from pay vis- -vis the periods omitted as well as from agricultural earnings. The figures ultimately arrived at by the Trial Court are thus patently different from those mentioned in the charge framed against the appellant and on which he was put on trial. In other words, the appellant was convicted by the Trial Court on a charge different from the one framed against him and that too on the basis of calculations made by it by applying inferences and guess works. 13. The High Court in turn, while noticing the aspect that the prosecution while laying the charge-sheet had not accounted for the income of the appellant by way of pay for the aforementioned periods as well as receipts from agricultural lands, reduced the household expenditure from 60% to 50% thereby generating for the appellant, savings of Rs.1,53,826/-. Qua the agricultural income as well, the cost of production and other investments were scaled down to 50% but agreed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the appellant from the pay for the periods excluded as well as agricultural gains, if included, would render the charge of disproportionate assets non est, he urged. As on the basis of the materials on record, the prosecution had failed to prove/establish that the appellant during the check period was in possession of pecuniary resources or property disproportionate to his known sources of income, he in law was not called upon to offer any explanation therefor and on that premise as well, the adverse inference drawn against him on that count is indefensible. 16. Per contra, the learned counsel for the respondent/State has urged that the prosecution having proved the charge beyond all reasonable doubt as has been endorsed by the concurrent findings of the Courts below, no interference with the conviction and sentence is warranted. 17. The materials on record and the rival assertions have received our due attention. The accusations on which the charge under Section 13(1)(e) read with Section 13(2) of the Act were framed against the appellant have been set out hereinabove. Admittedly, having regard to the ultimate figures as calculated by the Courts below, the charge has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. 20. As ordained by the above statutory text, a public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income may be of his or anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account such disproportionate pecuniary resources or property. The explanation to Section 13(1)(e) elucidates the words known sources of income to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant. 21. From the design and purport of clause (e) of sub-clause (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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