ORDER
S.C. Mohapatra, J.
1. Both prosecution and accused being dissatisfied with the impugned judgment have preferred these two appeals. Accused is aggrieved by his conviction and sentence under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act') imposing sentence of two years' R.I. and fine of Rs. 20,000/ - in default to undergo six months R.I. Prosecution is aggrieved that Section 5(3-B) of the Act has not been kept in mind while imposing fine of Rs. 20,000/- only. These two appeals were heard together and are disposed of by this judgment.
2. In March, 1974, getting information that accused who was an Income-tax Officer has assets disproportionate to his known sources of income, Central Bureau of Investigation registered a case and started investigation. It came to find that during his service career accused has invested huge amounts and acquired assets in his own name and names of his family members which are such more than his known sources of income. Accordingly, charge-sheet was filed against accused to face trial for having committed offence under Section 5(1)(a) of the Act.
3. Short case of prosecution is that accused was a member of a joint family. His grandfather Achhabar Singh a resident of village Malwa in Gaya district of Bihar was an agriculturist having only 32.51 acres of land in the year 1918. Achhabar had four sons; Bhajan, Maharaja, Rajabali and Jadunanda. Maharaja was only married and accused is his son. Other three brothers of Maharaja remained unmarried. Maharaja died in the year 1935. Between 1918 and 1936, family added only 8 acres 51 decimals of land to the joint family assets. On account of economic position of the family, accused spent his High Shoool days in house of his sister's husband and prosecuted his College education staying as a tutor of children in the residence of a Magistrate. No property was acquired during the period 1936 and 1944 when accused became a Graduate. Accused joined service as Lower Division Clerk in Income-tax Department, on 3-8-1945. From that year properties were acquired, development to ancestral building was made, deposits were made in Post Offices and Banks in spite of increase in family by birth of sons and daughter to accused who were educated, and got married. Prosecution found that between 3-8-1945 and 26-6-1974 income of the family from all sources which included salary of accused and his son, interest on deposits in Banks and Post Offices, dowry received by sons during their marriages, agricultural income and refund of income-tax came to Rs. 2,33,440/-. Expenditure of the family during the entire period was Rs. 3,17,782. Value of the assets and investments was Rs. 4,04,856/-. Taking the assets and expenditure together it was found that total assets of accused disproportionate to the income was Rs. 4,89,198/- as on 26-6-1974.
4. In defence accused explained that landed properties were acquired from the joint family agricultural income, educational expenses of his children were met by his uncle from income of village properties and by respective father-in-laws, ancestral house was developed from out of joint family income, deposits in Banks and Post Offices in names of his wife and children are out of funds provided by his wife and Tilaks received at the time of marriage of sons, building in name of his daughter-in-law was on contribution of his father and the source of acquisition of movables by his sons are either on contribution of their father-in-laws or from their own income. Thus, there was no disproportionate asset.
5. Prosecution examined 72 witnesses and proved 125 documents which were marked as Exts. 1 to 125 to prove its case. Apart from cross-examining witnesses and giving suggestions to them as well as statement Under Section 313, Cr. P.C. accused has examined eight witnesses and proved documents marked Exts. A to T.
6. Trial Court on consideration of (contd. on col. 2) materials on record came to the following conclusions:-
(a) pecuniary resources and property of accused and his family members :-
(i) Agricultural lands :-
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SI. Evidence Sale deed Consideration Vendor Vendee
No.
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Jadunandan Singh
1. P.W. 58 18605 dated 27-9-72 Rs. 500/- Fakir Ch. Jadunandan
Ext. 104.
2. P.W. 60 7326 dated 26-8-49 Rs. 200/- Abdul Khan Do
Ext. 105/5
3. P.W. 60 7290 dated 29-6-61 Rs. 7,500/- Ramananda Do
Ext. 105/5 Singh
4. P.W. 60 6545 dated 18-6-65 Rs. 2,000/- Labh Singh Jadunandan
Ext. 105/10
5. P.W. 60 6546 dated 18-6-65 Rs. 5,500/- Labh Singh Do
Ext. 105/11
6547 dated 18-6-65
Ext. 105/12
6548 dated 18-6-65
Ext. 105/13
6. P.W. 66 2599 dated 26-2-70 Rs. 935/- Buxi Khalif Deokali Devi
Basanta Kumar Singh
7. P.W. 58 1260 dated 9-7-73 Rs. 1,000/-
Ext. 104/1
8. P.W. 58 2185 dated 10-3-73 Rs. 14,000/- Radhia Kaur Basant
Ext. 104/2
9. P.W. 60 7201 dated 21-6-66 Rs. 9,000/- Baburam Singh Kaur Basant
Ext. 105/6
Raman Singh
10. P.W. 60 7481 dated 28-4-50 Rs. 1,000/- B. Pathak Raman Singh
Ext. 105/2
11. P.W. 60 6145 dated 28-4-50 Rs. 1,750/- B. Pathak Raman Singh
Ext. 105/3
12. P.W. 60 222l dated 6-4-51 Rs. 100/- Swam Ch. Raman Singh
Ext. 105/7 Makhi
Deokali Devi
13. P.W.66 2598 dated 26-2-70 Rs. 13,000/- Buxi Khalif Deokali Devi
Ext. 112
Jadunandan and Sankar
14. P.W.58 2301 dated 21-12-73 Rs. 14,000/- Aloj Saha Jadunandan &
Sankar
15. P.W.58 9775 dated 17/18-6-70 Rs. 30,000/- Labha Singh Basanta, Bhola,
Ext. 104/3 Sankar
Rajabali Singh
16. P.W.60 4635 dt. 29-6-55 Rs. 602.50/- Nanda Kumar Rajbali Singh
Ext. 105/4
Bhajan Singh
17. P.W.60 3652 dt. 4-5-48 Rs. 228/- Rail Hyder Bhajan Singh
Ext. 105
18. P.W.60 1601 dt. 17-4-53 Rs. 1,000/- Bhikari Singh Bhajan Singh
Ext. 105/8
19. P.W.60 1592 dt. 17-4-53 Rs. 175/- Raghunandan Bhajan Singh
Ext. 105/9
20. P.W.60 6175 dt. 21-10-46 Rs. 50/- DukhanMahata Bhajan Singh
21. P.W.60 9140 dt. 1-10-48 Rs. 75/- Sayed Hussian Bhajan Singh
Ext. 116/8
22. P.W.60 1701 dt. 23-3-56 Rs. 900/- Bhikari Bhajan Singh
Ext. 116/9
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Total Rs. 1,03,805/-
(ii) Postal abd Bank deposits:-
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Description of account Balance as Evidence
on 26-6-74
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1. F.D. No. LTF 16/49 in Central Bank Rs. 30,000/- P.W. 2 Exts. 5 to 7
of India, Darbhanga, (In the wife's
name)
2. F.D. No. Ltd. 16/100 in Central Bank Rs. 26,000/- P.W. 2 Exts. 5 to 7
of India, Darbhanga in the name of
Bhola Kr. Singh
3. F.D. Account No. 5995486 Rs. 19,080/- P.W. 6 Ext. 14
dt. 16-1-74 in S.B.I. Titilagarh
4. F.D. No. 995494 dt. 11-2-74 in the Rs. 21,200/- P.W. 6 Ext. 15
name of the accused
5. Balance in A/c No. 6159 in Central Rs. 6926.62 P.W. 1 Exts. 1 and 2
Bank of India, Patna in the name of
the accused
6. Balance in A/c No. 371/C-1 in Bank Rs. 1859.51 P.W. 9 Exts. 18 and 18/1
Bihar in the name of the accused
7. Balance in A/c No. 2549 in Central Rs. 3465.77 P.W. 2 Exts. 3 and 4
Bank of India, Darbhanga in the
name of Basant Kr. Singh
8. Balance in A/C No. C.22 in S.B.I. Rs. 6460.12 P.W. 10 Ext. 19
Cuttack in the name of the accused
9. Balance in P.O. S.B. A/c No. 156007 Rs. 33.49 P.Ws. 15 and 8 Exts. 10
in the name of the accused & 17
10. Balance in P.O. S.B. A/c No. 156008 Rs. 1440.15 P.Ws.5&8 Ext. 17/1
in the name of wife of the accused
11. Balance in P.O. S.B. A/c No. 156010 Rs. 73.60 P.W. 5 Ext. 12 P.W. 8
in the name of Shyam Prakash Singh Ext. 17/3
(son)
12. Balance in P.O. S.B. A/c No. 156009 Rs. 73.60 P.W. 5 Ext. 13, 17/2
in the name of Om Prakash
13. Balance in CTD A/c No. KAM-100033 Rs. 127/- P.Ws. 3 and 4 Ext. 8
in Kadammkaran P.O. Patna in the
name of the accused
14. DMC P.O. Darbhanga A/c No. 306443 Rs. 290/- P.W. 42 Ext. 92
in the name of Basant Kumar
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Total Rs. 1,17,028.86
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(b) Expenditure of the accused and family members:-
(i) Fooding and clothing, (at page 80) Rs. 87,120/-
(ii) House Rent (at page 91) Rs. 4,940/-
(iii)Insurance premia paid, (at page 83) Rs. 15,026/-
(iv) Energy charges paid by Dr. Basanta. (at page 84) Rs. 182/-
(v) Funeral expenses of the two uncles of the accused. Rs. 2,000/-
(at page 85)
(vi) Litigation expenses (at page 86) Rs. 1,093/-
(vii)Education expenses of the sons of the accused. Rs. 20,337/-
(at page 89)
(viii)Marriage expenses of the three sons and daughter of Rs. 12,000/-
the accused. (at page 94)
(ix) Land revenue and cess (at page 95) Rs. 13,544/-
(x) Tax paid for the scooter and the Motor cycle. Rs. 113/-
(at page 96)
(xi) Maintenance of (Scooter and Motor cycle) (at page 96) Rs. 1520/-
(xii)Radio license fee (at page 96) Rs. 135/-
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Total Rs. 1,58,050/-
(c) Income:-
(i) Total income from all the agricultural lands. Rs. 1,37,000/-
(at page 38)
(ii)Total salary income of the accused from 3-8-1954 to Rs. 1,16,356/-
26-6-1974. (at page 53)
(iii)Decretal costs received, (at page 53) Rs. 469/-
(iv) Income from salary etc. drawn by Dr. Basanta Kumar Rs. 17,856/-
Singh, son of accused, (at page 55)
(v) Interests earned on Bank and Postal deposits. Rs. 25,783/-
(at page 60)
(vi) Refund of Income-tax (at page 60) Rs. 286/-
(vii)Amount saved from T.A. (at page 63) Rs. 3,000/-
(viii)Total amount of Tilak money received on the eve of Rs. 14,000/-
the marriage of the three sons of the accused.
(at page 71)
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Total income from all sources: Rs. 3,14,752/-
From this trial court came to the conclusion that possession of property and pecuniary resources which could not be satisfactorily accounted for is Rs. 1,57,029/- by calculating as follows:-
Total income during the check period. Rs. 3,24,752/-
Total expenditure during the check period. Rs. 1,58,050/-
Savings during the cheek period (Rs. 3,14,752 - 1,58,050) Rs. 1,56,702/-
Value of the assets acquired during the check period. Rs. 3,13,731/-
Savings during the check period - The value of the
disproportionate assets. (Rs. 3,13,731 - 1,56,702) Rs. 1,57,029/-
7. There can be no doubt that prosecution is to prove that the property and pecuniary resources are or were in possession of accused or in possession of any person on his behalf during the period accused continued as public servant. There is no difficulty where any property or pecuniary resource is in physical or legal possession of accused. Difficulty arises where property or pecuniary resources are in possession of any other person. In such cases, such possession is to be on behalf of the accused by any other person is to be proved. Possession in praesenti as well as possession in the past while accused continued to be a public servant is to be proved.
8. In this case some properties and pecuniary resources are found to be in name of accused. There is no difficulty for the same. There is no clear evidence that properties in names of others are in possession of accused or in possession of those persons on his behalf. Prosecution, therefore, adduced evidence to prove that the source from which those pecuniary resources or property came into existence was at one time in possession of the accused. This cannot be said to be unjustified or unreasonable. If prosecution can prove that there could not have been any other source than the accused himself, offence can be brought home against him. Normal human conduct and presumptions can be utilised for this purpose.
9. In this background if evidence is scanned and explanations as offered by accused are considered, conclusion of trial court would be justified. It is to be remembered that accused was a male member of the joint family where he lost his father and grandfather by 1935 when he was a school going boy. Other three male members were his unmarried paternal uncles. There is no evidence that till 1944 family was in wants or was affluent. Unmarried persons of age having property sufficient for their maintenance normally have no desire to improve their economic status when there is no intention in them to continue their own line of succession. Exceptions are no doubt there. Those are, however, not to be the general rule. This is also reflected when from after 1936 till 1945, there was no addition of property to the family. There is also no evidence that the family had surplus till 1944. With this, accused joined service on 3-8-1945. With accused joining service, the mental attitude to extend the landed properties as well as deposits in Post Offices and Banks commenced. It may be that the accused added some income by his salary or his absence from home was source of some saving. Prosecution cannot know it. Accused should have satisfactorily accounted for the same. It was for the accused to account for the savings year to year either from his salary or from the agricultural income to justify that accretions to the family assets were legitimate and legal. In absence of the same, taking attitude of other unmarried uncles towards acquiring worldly assets, if inference is drawn that it is accused who acquired them from his own source which certainly is not agricultural income, accused is to satisfactorily account for the same.
10. Attitude of accused to amass wealth from others is also corroborated from his explanation. He does not claim to have received any Tilak or dowry for his marriage. He also does not explain the economic affluence of his parents-in-law. He has not paid any tilak for marriage of his daughter. Dowry he gave is negligible. He, however, received tilaks for marriage of his sons and dowries as claimed by him. Not only that. He claims that for medical education of his two sons, their parents-in-law spent amounts. They paid for scooter and motor cycle and one father-in-law also contributed for purchase of land and construction of building. Added to it, he claims to have spent negligible amount for marriage of the sons and daughter. Even for obsequies of two paternal uncles in 1971 and 1973 the amount spent is Rs. 2,000/- on each occasion. Conduct of such a person so far as his pecuniary life while he was continuing as public servant in Income-tax Department is to be considered.
11. If the Bank and postal deposits as found by the trial court are taken into consideration, the amount is almost nearer to the salary component of accused. It is explained that deposits in names of wife and children were made out of funds of his wife from out of stridhan and share in joint family agricultural income and tilaks received. There is no evidence that his wife received anything from her parents at any time. There is also no evidence that each year the surplus agricultural income were divided and handed over his wife for herself or her children. This explanation could not satisfy trial court and I also agree with the same.
12. As regards tilak and dowry prosecution has accepted the amount to be Rs. 10,000/- in all. Accused claimed tilak to be Rs. 70,000/-. Trial court has disbelieved the explanation. So far as Basant, eldest son of accused, D.W2 his father-in-law stated that he paid Rs. 20,000/-. Local custom of tilak in marriage is not proved. It is optional. Basant married when he was in High School. No reasonable explanation is coming why, to a groom who is a student in High School in 1959 with unknown future except becoming an agriculturist, a huge amount of tilak of Rs. 20,000/- is paid. It is true that D. W. 4 claims that he was present with other villagers when the amount was paid. It appears to be so unrealistic that acceptance of evidence of these two witnesses will tend towards unreasonably favouring the accused. D.W. 2 becomes more unreliable when he advances a story that he promised to Basant a school boy at the marriage altar to give a scooter when he would be a Doctor and accordingly, paid Rs. 3,500/-. Accused claimed to have received Rs. 20,000/- as tilak for marriage of his son Shankar who is a drop out after Intermediate. D.W. 5, father-in-law of Shankar corroborates the same. D.W. 4 also corroborates to have seen it. D.W. 5 stated that he paid Tilak of Rs. 11,000/- for marriage of his other daughters. One of sons of D.W. 5 is a Professor. Another son is a teacher. Third son was reading M.Sc. According to him Professor son got Rs. 14,000/- as Tilak. Eldest son got Rs. 7,000/- and Third son got Rs. 28,000/-. I am not able to accept that to a drop out, such a huge amount of Rs. 20,000/- was paid in absence of better explanation why a drop out was selected with payment of huge Tilak amount. Accused claimed that he received Tilak of Rs. 30,000/- for his son Bhola who was a medical student in 1972 at the time of his marriage. D.W. 7 grand-father of Bhola's wife supports it. Apart from it he paid Rs. 16,000/- for medical education of Bhola. It appears to be exaggerated. When prosecution made out a case in favour of accused that an amount of Rs. 10,000/- in all was received on account of dowry. I am inclined to accept the same. It is not consistent conduct of a person to receive huge amounts when he pays nothing and spends negligible.
13. On behalf of accused, it is claimed that trial court ought to have added at least Rs. 1,50,000/- to agricultural income towards income from orchard. Accused claimed that an area of more than two acres is orchard having mango and Mahua trees. When prosecution making some investigation does not find out any orchard or income from orchard, accused who has knowledge of the same should have given specification of the area leading the exact land the period from which it was in the family and age of the trees. It is not the case of accused that this area has been left out. Income from it has been included. Besides, taking the orchard into consideration, accused must have given his property statements to his employer. The same has been taken into consideration by 'the trial court. As has been held by trial court, accused did not claim income from orchard. Taking advantage of some vague statements of witnesses, this claim has been made. I am not inclined to accept the same.
14. Agricultural income determined by trial court is submitted to be on lower side. Accused has not adduced any direct evidence of yield from the agricultural lands of the family. Prosecution has accepted the average yield of similar lands in the area. If some evidence is available where the owners claim to have got more yield, the same cannot be universally accepted without better explanation. Statistics are collected by Government Officers in course of regular course of official business. They are to be presumed to be correct and are to be preferred to oral evidence nor supported by documents. Besides, from 1955 to 1971 accused gave property statement where he has indicated the agricultural income. He has explained the same to be his share. Trial court has given reasons how the same cannot reflect his share as the same was varying from year to year. It is to be remembered that the joint family consisted of three unmarried uncles, accused and his children. I adopt the reason given by trial court.
15. Construction of double storied building in place of ancestral house is another item which is under challenge. Case of accused that the same was constructed in 1941-42. Only a dalan was added in 1959. If evidence of D.W. 2 is accepted, he saw in 1959 the building to be more than 30 years old which takes it to 1929 or 1930. D.W. 2 does not describe the building. Thus, he saw in 1959 the old house which can be accepted to have been remodelled to double storied building in 1959 or near about. Besides, from the attitude of the three unmarried uncles who had no worldly desire, construction of a two storied building in 1941-42 when building materials would not. be available in plenty being Second World War period is not believable. Rather taking the attitude of accused who had a desire to have economic status, construction in or about the year 1959 is more acceptable. Accused has spent the amount from his sources which he was required to satisfactorily account for and has failed.
16. Building at Darbhanga is the next item. Admittedly, land and building stands in name of Binita Exts. 103 and 103/1 are relied upon to show that father of Binita contributed Rs. 18,000/- for purchase of land and construction of building. It is not that the entire amount of Rs. 36,000/- was contributed by him. By the time of construction Basant or Binita had no capacity to contribute to the construction. Therefore, accused contributed to the construction at least to the extent of Rs. 18,000/-. But trial court has given cogent reason to discard Ext. 103 series. It is not natural that a father who makes a gift would give declaration of such gift in writing. Purpose of such declaration which is not natural has not been clearly indicated. As the trial court has indicated, they appear to be prepared in the same type writer at a time and dates they bear do not reflect the correct position. I am inclined to hold that accused contributed the entire amount.
17. Taking the totality of circumstances and evidence, I am inclined to hold in this case that for acquiring the assets, source was of accused at different times though some of the assets are in names of other persons. Prosecution has been able to satisfy on materials that the pecuniary resources and properties are in possession of accused or by others on his behalf and at the time of acquiring or developing the assets, property i.e., money came from possession of accused. Account given by accused is so unacceptable that it is not satisfactory account of such possession. Trial court has been liberal in leaving apart the ornaments. But I am not inclined to prejudice the accused any further.
18. Mathematically trial court is correct that disproportionate assets are valued at Rs. 1,57,029/-. However, mathematics may be a good servant. It should not be a master. I cannot forget that accused is called upon to explain matters for a period of about 30 years. On that account.. I confine the value to rupees one lakh.
19. Under Section 5(3-B) of the Act while imposing fine Under Section 5(2) I am to take note of the value of property in respect of which offence is committed. Accordingly, I enhance the fine amount to Rs. 1 lakh (one lakh) in place of Rs. 20,000/- as imposed by trial court.
20. Before concluding, I may observe that authorities under whom accused worked were not vigilant. Central Bureau of Investigation was not alert. Conduct Rules were not adhered to be enforced meticulously. Steps should be taken to make the investigation more simple and more liability should be fixed on public servants to explain their conduct to Courts when questioned.
21. In result, appeal of accused is dismissed and appeal by prosecutor is allowed.