N Criminal Appeal No 277 of 1976
Appeal by special leave from the judgment and order dated the 9th April 1975 of the Bombay High Court Nagpur Bench Nagpur in Criminal Appeal No 134 of 1971
MC Bhandare and RN Poddar for the Appellant
P Govindan Nair K Ramavtar and KR Choudhury for the Respondent
The Judgment of the Court was delivered by SEN J
The State Government of Maharashtra has preferred this appeal by special leave against the judgment of the 678 Bombay High Court reversing the judgment and sentence of the Special Judge Chandrapur and acquitting the respondent of an offence under section 52 read with section 51e of the Prevention of Corruption Act 1947 hereinafter called the Act 
The respondent Wasudeo Ramchandra Kaidalwar was a Range Forest Officer drawing a salary of Rs 515 per month
On September 21 1969 PW 71 Patwardhan Inspector Anti Corruption Bureau under authorisation from the Director Anti Corruption Bureau Bombay carried out search and seizure at the residential house of the respondent
The Inspector made a recovery of Rs 26870 in cash from an almirah savings bank accounts in the names of the respondent his wife and children totalling to Rs 1258835 national savings certificates worth Rs 510 postal savings certificates worth Rs 18425 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 Rs 227905 gold and silver ornaments household effects etc
of the value of Rs 860250 two sale deeds in respect of two plots bearing Khasra Nos
281K and 281Dh in Chandrapur purchased 1 in the name of his wife Smt
Sushila for Rs 5250 and 2 in the joint names of his wife Smt
Sushila and his brother in law Narayan for an amount of Rs 21210 papers relating to the building of a house at village Gondpipri built in the year 1965 at a cost of Rs 10000
The petitioner was accordingly put on trial for having committed an offence punishable under section 52 read with section 51e of the Act being found in possession of assets disproportionate to his income
The respondent abjured his guilt and denied the commission of the offence
He pleaded that he was leading frugal life and all the property found during the search of his residential house belonged to his father in law Hanumanthu pairokar of Raja Dharmarao Zamindar of Aheri Estate
He alleged that two of the sisters of his father in law were the kept mistresses of Raja Dharmarao and enjoyed special favours from the late Zamindar who bestowed on them large amounts of cash ornaments etc
They used to visit the house of his father in law Hanumanthu once or twice a month and used to keep all their cash gold and silver ornaments
Hanumanthu owned a grocery shop
He and his father had a liquor shop besides forest contracts
Hanumanthu used to deal in money lending business
The respondent alleged that his father in law deposited an amount of Rs 30000 in April 1957 Rs 10000 in August 1957 and Rs 35000 in cash and Rs 1000 in coins and also 23 tolas of gold in September 1957 with his wife Smt
Sushila
679 He pleaded that his father in law died on March 10 1958 at his house leaving behind his son Narayan and two daughters Smt
Shakuntala who on her marriage with the respondent was re named as Smt
Sushila and Smt
Sushila his sister in law minor at that time
He instructed him to divide the property into three equal shares among his three children
The respondent maintained that he was holding the property merely as a custodian and was not the owner thereof
The Special Judge Chandrapur by his judgment dated 761971 convicted the respondent for having committed an offence punishable under s52 read with s51e of the Act inasmuch as he was found in possession of property worth Rs 7957470 as against his only known source of income namely his total salary in government service amounting to Rs 44000
He held that the respondent had failed to account for cash of Rs 26870 sale deeds of the two plots purchased for Rs 5250 and Rs 21210 in the name of his wife Smt
Sushila and the other jointly in the name of his wife and brother in law Narayan and for the house built at village Gondpipri at a cost of Rs 10000 He held that the acquisition of these immovable properties was not reasonably attributable to the property left by his father in law Hanumanthu
He also rejected the respondent s plea that he was leading a frugal life and therefore was able to make a saving of Rs 15000 out of his salary income
He accordingly sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs 26870
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 ie failed to account for the properties left by the respondent s father in law Haumanthu he could not be convicted under section 52 read with section 5 1e 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 had the effect of limiting the presumption of guilt arising under s41 of the Act to offences of criminal misconduct 680 specified in ss51a and b and not to that in s51e
It therefore held that mere possession of disproportionate assets by a public servant to his known sources of income for which he has failed to account would not be sufficient to bring home the guilt under s51 e unless the prosecution further excludes all possible sources of income
The construction placed by the High Court on the provisions contained in s51e of the Act is obviously wrong
It completely overlooks the fact that the burden is cast on the accused by the use of the words for which the public servant cannot satisfactorily account
It is also wrong in distorting the meaning of the expression known sources of income occurring in section 51e which has a definite legal connotation and which in the context must mean sources known to the prosecution
It is distressing to find that the High Court has involved itself into a process of evolution of a new theory of law instead of confining itself to a re appraisal of the evidence on record which it was entitled to do sitting as a court of appeal against the judgment of conviction
The order of acquittal recorded by the High Court could still be maintained on a proper evaluation of the facts as on the proved circumstances there was a preponderance of probability that the property found in the respondent s house could be the property left by his father in law Hanumanthu
The legislature deleted s53 of Act which embodied a rule of evidence by s6 of the Anti Corruption Laws Amendment Act 1964 and instead inserted s51e making possession of disproportionate assets by a public servant a substantive offence
Section 51e of the Act reads 51 A public servant is said to commit the offence of criminal misconduct e if he or any person on his behalf is in possession or has at any time during the period of his office been in possession for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income
Old s53 of the Act was in these terms 53 In any trial of an offence punishable under subsection2 the fact that the accused person or any other person on his behalf is in possession for which the accused 681 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 section 52 read with s51e 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
3 Whether on the facts and circumstances of the present case having regard to the fact that the respondent s father in law Hanumanthu was pairokar of Raja Dharmarao Zamindar of Aheri Estate and left substantial properties it was not improbable that the properties found in possession of the respondent belonged to his father in law
It is clear both on authority and principle that s53 which now stands deleted did not create an offence separate from the one created by s51 but intended only to lay down a rule of evidence to raise a presumption of guilt in certain circumstances
Section 51 defines different species of criminal misconduct which can be committed by a public servant and section 52 provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and also shall be liable to fine
Under the old s53 a presumption of criminal misconduct could be drawn if such a public servant or any person on his behalf was found to be in possession of pecuniary resources or property disproportionate to his known sources of income for which the public servant could not satisfactorily account
Once the prosecution proved that the accused person was possessed of disproportionate assets the burden was shifted to the accused to prove the source of acquisition of such assets
682 The provisions of s53 have been subject of judicial interpretation
First the expression known sources of income in the context of s53 meant sources known to the prosecution
The other principle is equally well settled
The onus placed on the accused under s53 was however not to prove his innocence beyond reasonable doubt but only to establish a preponderance of probability
These are well settled principles CSD Swamy vs The State Sajjan Singh vs State of Punjab and VD Jhagan vs State of UP
The legislature thought it fit to dispense with the rule of evidence under section 53 and make the possession of disproportionate assets by a public servant as one of the species of the offence of criminal misconduct by inserting section 51e due to widespread corruption in public services
The terms and expressions appearing in section 51e of the Act are the same as those used in the old Section 53
Although the two provisions 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 section 51e
No doubt section 41 provides for presumption of guilt in cases falling under sections 51a and b but there was in our opinion no need to mention section 51a therein
For the reason is obvious
The provision contained in s51e 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 section 51e 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 section 52 read with s51e of the Act unless the prosecution disproves all possible sources of income
That takes us to the difficult question as to the nature and extent of the burden of proof under section 5 1 e of the Act
The expression burden of proof  has two distinct meanings 1 the legal burden
ie the burden of establishing the guilt and 2 the 683 evidential burden ie the burden of leading evidence
In a criminal trial the burden of proving everything essential to establish the charge against the accused lies upon the prosecution and that burden never shifts
Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution in the case of certain offences the burden of proving a particular fact in issue may be laid by law upon the accused
The burden resting on the accused in such cases is however not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities
The ingredients of the offence of criminal misconduct under section 52 read with s51e are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account
To substantiate the charge the prosecution must prove the following facts before it can bring a case under section 51e namely 1 it must establish that the accused is a public servant 2 the nature and extent of the pecuniary resources or property which were found in his possession 3 it must be proved as to what were his known sources of income ie known to the prosecution and 4 it must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income
Once these four ingredients are established the offence of criminal misconduct under section 51e is complete unless the accused is able to account for such resources or property
The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets
The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under section 51e cannot be higher than the test laid by the Court in Jahgan s case supra ie to establish his case by a preponderance of probability
That test was laid down by the court following the dictum of Viscount Sankey LC in Woolmington vs Director 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 ie his salary
Those will be matters specially within the knowledge of the public servant within the meaning of s106 of the Evidence Act 1872
Section 106 reads 684 section 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 is a matter relating to appreciation of evidence
On a consideration of the evidence adduced by the respondent the High Court has taken the view that it is not possible to exclude the possibility that the property found in possession of the respondent belonged to his father in law Hanumanthu
We have been taken through the evidence and we cannot say that the finding reached by the High Court is either manifestly wrong or perverse
Maybe this Court on a reappraisal of the evidence could have come to a contrary conclusion
That however is hardly a ground for interference with an order of acquittal
There are no compelling reasons to interfere with the order of acquittal particularly when there is overwhelming evidence led by the respondent showing that his father in law Hanumanthu was a man of affluent circumstances
There is no denying fact that Hanumantha was the pairokar of Raja Dharmarao Zamindar of Aheri Estate and by his close association with the Zamindar had amassed considerable wealth
More so because two of his sisters were the kept mistresses of the Zamindar and amply provided for
It appears that after the death of Raja Dharmarao Hanumanthu took up his residence with his elder daughter Smt
Sushila who was married to the respondent
To substantiate his plea in defence the respondent examined as many as 12 witnesses including himself as AW 12 his sister in law Smt
Sushila AW 11 Dr Chandrasekhar Merekar AW 6 Shri VN Swamy Advocate Chandrapur AW 8
We cannot brush aside the unimpeachable testimony of Shri VN Swamy AW 8 who was a leading advocate of Chandrapur and Member of Lok Sabha and Dr Chandrasekhar Merekar AW 6 Medical Practitioner of Chandrapur who attended on Hanumanthu at the time of his death
Both these witnesses have unequivocally stated that when Hanumanthu died at the respondents leaving his two minor children Smt
Sushila and Narayan to the care of the respondent and his wife Smt
Sushila he told them that he 685 was leaving properties worth Rs 70 to 80 thousand comprising cash ornaments jewellery etc and expressed a desire that the same be divided equally among his three children the two daughters and son
Shri Swamy testified to the fact that he was handling all the litigation of Raja Dharamrao Zamindar of Aheri Estate who had an yearly income of Rs 6 to 8 lakhs because 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 father in law Hanumanthu
The result therefore is that the appeal must fail and is accordingly dismissed
PBR Appeal dismissed


Summary:
The respondent was a Range Forest Officer on a monthly salary of Rs 515
In a search conducted by an officer of the Anti Corruption Bureau Rs 26 thousand odd in cash savings bank accounts in the names of himself his wife and children national savings certificates postal saving certificates gold and silver ornaments sale deeds of certain properties in the name of his wife sister in law and brother in law aggregating in all to over Rs 79 thousand were discovered from his house
On the allegation that he was found in possession of assets disproportionate to his known sources of income he was charged with offence punishable under section 52 read with section 51e of the Prevention of Corruption Act 1947
The respondent pleaded that he led a frugal life and that secondly much of the property found in his house belonged to his father in law
He added that his father in law was a pairokar of a Zamindar in the area that two sisters of his father in law were the kept mistresses of the Zamindar and the Zamindar gave large amounts of cash and presents most of which were passed on to his father in law
At the time of his death his father in law entrusted his minor daughter and son to his care and instructed that his property should be divided among his three children equally and that therefore he was holding the property merely as a custodian
Rejecting the plea of the respondent a Special Judge convicted and sentenced him under section 52 read with section 51e of the Act
On appeal a single Judge of the High Court acquitted him holding that the prosecution had failed to discharge the burden of disproving all possible sources of the respondent s income that it was not possible to exclude the probability that the property found in his possession could be the property left by his father in law and that mere possession of assets disproportionate to his known sources of income would not be sufficient to bring home the guilt under section 51e unless the prosecution further excluded all possible sources of income
The High Court was also of the view that the changes brought about by the Anti 676 Corruption Laws Amendment Act 1964 had the effect of limiting the presumption of guilt arising under section 41 of the Act to an offence of criminal misconduct specified in section 51a and b and not to that in section 51e
 HELD The construction placed by the High Court on section 51e was wrong in that it overlooked the fact that by the use of the words for which the public servant cannot satisfactorily acquit a burden is cast on the accused
680 B Section 53 which now stood deleted did not create an offence separate from the one created by section 51 but only raised a presumption of criminal misconduct if he or any person on his behalf was in possession of pecuniary resources or property disproportionate to his known sources of income which he could not satisfactorily account
Once the prosecution proves this fact the burden shifts on to the accused to prove the source of acquisition of such assets
681 F G The expression known sources of income in the context of the section means sources known to the prosecution
Secondly the onus placed on the accused under the section was not to prove his innocence beyond reasonable doubt but only to establish a preponderance of probability
To eradicate the widespread corruption in public services the legislature dispensed with the rule of evidence under section 53 and made possession by a public servant of assets disproportionate to his income as one of the species of offences of criminal misconduct by inserting clause e in section 51
682 A C The meaning to be assigned to the expression known sources of income occurring in section 51e must be the same as was given to that expression in section 53 before its repeal that is sources known to the prosecution
So also the same meaning must be given to the words for which a public servant is unable to satisfactorily account occurring in section 51e
When clause e uses the words if 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 assets disproportionate to his income
The High Court was therefore in error in holding that a public servant charged for having in his possession assets disproportionate to his income for which he cannot satisfactorily account could not be convicted of an offence under section 52 read with section 51e unless the prosecution disproves all possible sources of income
682 D F Sajjan Singh vs State of Punjab  and VD Jhagan vs State of UP   referred to
The expression burden of proof has two distinct meanings 1 the legal burden that is the burden of establishing the guilt and 2 the evidential burden that is the burden of leading evidence
Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution in the case of certain offences the burden of proving a particular fact in issue may be laid by law upon the accused
This burden is not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities
To substantiate the charge of criminal misconduct under section 52 read with section 51e the prosecution must prove 1 that the accused was a public servant 2 the nature and extent of the pecuniary resources or property in his possession 3 his known sources of income ie known to the prosecution 4 that such 677 sources or property were disproportionate to his known sources of income
Once these are established the offence of criminal misconduct under section 51e would be complete
The burden then shifts to the accused to substantially account for possession by him of assets disproportionate to his income
The extent and nature of burden of proof resting upon the public servant cannot be higher than establishing his case by a preponderance of probability
683 A E In the instant case 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
The prosecution cannot in the 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 that is his salary because these are matters specially within his knowledge within the meaning of section 106 of the Evidence Act
The phrase burden of proof in section 106 of Evidence Act 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
684 B On the proved circumstances there was a preponderance of probability that the property found in the respondent s house could be the property left by his father in law
There is overwhelming evidence on record that the respondent s father in law was a man of affluent circumstances being a paiorkar of a Zamindar and that he had amassed considerable wealth more so because his two sisters were the kept mistresses of the Zamindar
On the death of the Zamindar his father in law stayed with the respondent
Also the respondent s father had a liquor shop besides forest contracts
The evidence led in the case was sufficient to create a doubt whether the respondent was in possession of assets disproportionate to his known sources of income
On the other hand there is preponderance of probability that the property in his possession belonged not to him but to his father in law
684 D H