minal Appeal No 169 of 1959
Appeal by special leave from the judgment and order dated March 27 1958 of the Allahabad High Court in Criminal Appeal No 785 of 1955
972 Nuruddin Ahmad and Naunit Lal for the appellant
G C Mathur and C P Lal for the respondent
December 7
The Judgment of the Court was delivered by SK DAS J
This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated March 27 1958 whereby the said High Court maintained the conviction of the appellant under section 52 of the Prevention of Corruption Act 1947 2 of 1947 but reduced the sentence of four years  rigorous imprisonment passed on the appellant by the Special Judge Kanpur to two years  rigorous imprisonment
The short facts are these
The appellant Surajpal Singh was employed in the Police Department of the Uttar Pradesh Government
He started his service as a constable on a salary of Rs 13 per month from August 1 1930
In 1946 his pay was increased to Rs 46 per month
He was appointed a Head constable on a salary of Rs 50 per month in 1947
He officiated as a Sub Inspector of Police sometime in 1948 and 1949 on a salary of Rs 150 per month
On March 1 1949 he was reverted to his post of Head constable
Between the dates February 27 1951 and September 9 1952 he was posted as a Head constable attached to the Sadar Malkhana Kanpur
The charge against him was that in that capacity he dishonestly or fraudulently misappropriated or otherwise converted to his own use many articles principally those seized in connection with excise offences kept in deposit in the said Malkhana
These articles included opium bottles of liquor etc
The charge further stated that a sum of Rs 9284 1 0 was recovered on a search of his house on September 9 and 10 1952 and this amount was disproportionate to the known sources of income of the appellant
There was an allegation by the prosecution that the acts of dishonest misappropriation etc were committed by the appellant in conspiracy with two other persons called Bhagawat Singh and Gulab Singh
Therefore the charges against the 973 appellant were 1 for the offence of conspiracy under section 120B of the Indian Penal Code 2 for the offence under section 51c of the Prevention of Corruption Act 1947 for the acts of dishonest misappropriation or user read with section 52 of the said Act and 3 for an offence under section 465 of the Indian Penal Code in respect of a particular entry said to have been forged in the Register of Properties kept in the Sadar Malkhana
The learned Special Judge who tried the appellant Bhagawat Singh and Gulab Singh recorded an order of acquittal in respect of the latter two persons
As to the appellant he was also acquitted of all the charges except the charge under section 52 of the Prevention of Corruption Act
On this charge the learned Special Judge recorded an order of conviction but this was based on the sole ground that the appellant had failed to account satisfactorily for the possession of Rs 9284 1 0 which according to the finding of the learned Special Judge was disproportionate to the known sources of income of the appellant
It should be noted here that the learned Special Judge held the appellant not guilty of the various acts of dishonest misappropriation or user alleged against him in respect of the properties kept in the Sadar Malkhana
In his appeal to the High Court the appellant urged various grounds one of which was that he could not be convicted on the rule of presumption laid down in sub section
3 of section 5 of the Prevention of Corruption Act 1947 when on the only charge of criminal misconduct alleged under section 51c of the said Act he had been found not guilty
The High Court repelled this contention and upheld the conviction of the appellant but reduced the sentence
The principal question before us is whether in the circumstances of this case the conviction of the appellant on the charge under sub section
2 of section 5 of the Prevention of Corruption Act 1947 by invoking the rule of presumption as laid down in sub section
3 of that section is correct
It is convenient to read here section 5 of the Prevention 123 974 of Corruption Act 1947 in so far as it is relevant for our purpose section 51 A public servant is said to commit the offence of criminal misconduct in the discharge of his duty aif he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or bif he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person so concerned or cif he dishonestly or fraudulently misappropriated or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do or dif he by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage
2Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine Provided that the Court may for any special reasons recorded in writing  impose a sentence of imprisonment of less than one year
2A          3 In any trial of an offence punishable under sub section 2 the fact that the accused person or any 975 other person 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 is 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 pre sumption
 Now learned Counsel for the appellant has put his argument on the principal question in the following way he has submitted that the is not in a position in an appeal by special leave to go behind the finding of fact arrived at by the courts below
The appellant it appears gave some explanation with regard to the possession of Rs 9284 1 0
That explanation was not however accepted by the courts below
Learned Counsel has submitted that he does not wish to go behind that finding of fact
He has submitted how ever that the scheme of section 5 of the Prevention of Corruption Act 1947 is this sub section
1 defines the offence of criminal misconduct in the discharge of his duties by a public servant the offence can be one or more of four categories mentioned in cls
a b c and d sub section
2 is the penal section which states the punishment for the offence of criminal misconduct and sub section
3 lays down a rule of presumption and states that no conviction for the offence shall be invalid by reason only that it is based solely on such presumption
Learned Counsel has pointed out rightly in our opinion that the charge against the appellant in the present case referred only to criminal misconduct in the discharge of his duty by a public servant of the nature mentioned in cl
c of sub section
In other words the charge against the appellant was that he had dishonestly or fraudulently misappropriated or otherwise converted for his own use property entrusted to him etc
It was open to the learned Special Judge to have convicted the appellant of that offence by invoking the rule of presumption laid down in sub section
He did not however do so
On the 976 contrary he acquitted the appellant on that charge
Therefore learned Counsel has submitted that by calling in aid the rule of presumption laid down in sub section
3 the appellant could not be found guilty of any other type of criminal misconduct referred to in cls
a b or d of sub section
1 in respect of which there was no charge against the appellant
We consider that the above argument of learned Counsel for the appellant is correct and must be accepted
This Court pointed out in C section D Swamy vs The State 1 that sub section
3 of section 5 of the Prevention of Corruption Act 1947 does not create a new offence but only lays down a rule of evidence which empowers the Court to presume the guilt of the accused in certain circumstances contrary to the well known principle of Criminal law that the burden of proof is always on the prosecution and never shifts on to the accused person
In Swamy s case there were charges for the offence of criminal misconduct under two heads cl
a and cl
The trial court held the accused person  in that case not guilty of the offence under cl
a but guilty of the offence under cl
d by invoking the rule of presumption laid down in sub section
3 of section 5
The distinction between that case and the case under our consideration is this in Swamy s case there were two charges either of which could be founded on the rule of presumption laid down in sub section
3 but in our case there is only one charge of criminal misconduct of which the appellant has been acquitted therefore there is no other charge which can be founded on the rule of presumption referred to in sub section
This is the difficulty with which the respondent is faced in the present case
It appears to us that the learned Special Judge and the High Court proceeded wrongly on the footing as though sub section
2 or sub section
3 of section 5 of the Act creates an offence
The offence which is punished under sub section
2 or can be founded on the rule of presumption laid down in sub section
3 must be the offence of criminal misconduct of one or more of the categories mentioned in cls
a to d of sub section
In the case before us the only category which was alleged against the appellant was that of category c 1  977 namely dishonest or fraudulent misappropriation etc
That charge having failed there was no other charge which could be founded on the rule of presumption laid down in sub section
Learned Counsel for the respondent State has contended before us that it was open to the appellate Court to affirm the conviction of the appellant under sub section
2 of section 5 by holding him guilty of the offence of criminal misconduct of the category mentioned in cl
a or cl
d of sub section
We are unable to accept this contention as correct
The prosecution never alleged that the sum of Rs 9284 1 0 was the result of the appellant habitually accepting or obtaining illegal gratification etc
The prosecution case was that the sum of Rs 9284 1 0 was the result of the dishonest user of property which was entrusted with the appellant
It is not open to the appellate Court to affirm the conviction of the Appellant on an entirely new case never suggested against the appellant at any earlier stage
It is unfortunate that in this case the courts below did not choose to rely on the rule of presumption laid down in sub section 3 with reference to the charge under cl
c of sub section
1 of section 5
But that misfortune cannot now be repaired by evolving out of a vacuum as it were a new case against the appellant based on cl
a or cl
d of sub section
1 of section 5 in support of which no facts were ever alleged or suggested
For the reasons given above we allow this appeal and set aside the conviction and sentence passed against the appellant
Appeal allowed


Summary:
The appellant was a Head Constable attached to a malkhana where articles seized in connection with excise offences were kept in deposit
The appellant was charged under section 51c read with section 52 Prevention of Corruption Act 1947 in that he had dishonestly or fraudulently misappropriated or otherwise converted to his use these articles the charge further stated that a sum of Rs 9284 1 0 was recovered from him which was disproportionate to his known sources of income
He was acquitted of the charge under section 51c but was convicted under section 52 on the ground that he had failed to account satisfactorily for the possession of Rs 9284 1 0 which was disproportionate to his known sources of income
Held that the conviction of the appellant under section 52 of the Prevention of Corruption Act 1947 was illegal
The only charge against the appellant was of criminal misconduct under section 51c of the Act for dishonestly or fraudulently misappropriating property entrusted to him and of this charge he could have been convicted by invoking the rule of presumption under section 53
But since this was not done and he was acquitted of that charge he could not be convicted of criminal misconduct referred to in cls
a b or d of section 51 for which he had not been charged
The Courts below had proceeded wrongly on the footing as though sub section
2 or sub section
3 of section 5 created an offence the offence which was punishable under section 5 2 or which could be founded on the rule of presumption under section 53 was the offence of criminal misconduct of one or more of the cate gories mentioned in cls
a to d of sub section
1 of S 5
CS D Swamy vs The State   refer red to