N Criminal Appeal No 318 of 1978
From the Judgment and order dated 29th and 30th April 1976 of the High Court of Bombay in Criminal Appeal No 1044 of 1973 AS Bhasme for the Appellant
909 Prem Malhotra for the Respondent
The Judgment of the Court was delivered by VENKATACHALIAH J
This appeal by special leave by the State of Maharashtra arises out of and is directed against the judgment dated April 29 30 1976 of the High Court of judicature at Bombay in Criminal Appeal No104473 on its file setting aside respondent s conviction and sentence dated 21773 under Section 51e read with Section 52 of the Prevention of Corruption Act of 1947  Act  for short in Special Case No 2470 on the file of the Special Judge Greater Bombay
The special judge held respondent guilty of the charge of Criminal Misconduct in that respondent was in possession of property and pecuniary resources disproportionate to his known sources of income for which he could not satisfactorily account and sentenced respondent to undergo rigorous imprisonment for 3 years and to pay a fine of Rs20000
The High Court allowing respondent s appeal before it acquitted him of the charge
The State has come up in appeal
At the relevant time respondent Pollonji Darabshaw Daruwalla was an Appraiser in the customs department at Bombay
He and several other customs officers were suspected of their complicity in certain offences concerning export of stainless steel ware to Hongkong
On 9121968 Police inspector PW 34 armed with a warrant in this behalf searched the residential premises of the respondent in the course of the investigation of that case
Though nothing incriminatory for purpose of that investigation was discovered however the search revealed respondent s possession of furniture refrigerator tape recorder and cash of Rs7593 which were susceptible of the suspicion of the commission of an offence under Section 51e read with Section 52 of the Act 
PW 34 accordingly obtained the requisite authorisation to investigate into this offence and after investigation sought and obtained on 26
101970 sanction to prosecute respondent
On 2111970 the charge sheet was placed against the respondent for an offence under Section 51a read with 52 of the Act
The substance of the charge was that respondent as a publicservant between the period of 141958 and 31121968 was in 910 possession of pecuniary resources and property of the value of Rs26212215 that his known sources of income during the said period was Rs8511412 that therefore the property possessed by the respondent was disproportionate to his known sources of income to the extent of Rs171647 for which respondent could not satisfactorily account and that thereby respondent was guilty of Criminal Misconduct within the meaning of and punishable under Section 52 of the Act
Respondent having pleaded not guilty the matter went for trial 
In support of the charge the prosecution examined 34 witnesses
A number of documents pertaining to the respondent s investments in Banks in company deposits and on shares both in his own name and jointly with his wife as also documents pertaining to the salary and emoluments of the respondent between 141958 and 31121968 were brought on record and marked in evidence
In the course of the trial for the most part respondent was not defended by a counsel
Many of the prosecution witnesses were not cross examined
It was only at a late stage of the proceedings that an advocate appeared for him
From what is disclosed by the trend of the answers in the course of the examination under Section 342 Cr PC the possession of the assets in the form of investments in Fixed Deposits with Banks and with companies and on shares in the joint name of the respondent and his wife was not disputed
The defence was that respondent was in possession of substantial assets even anterior to 141958 and that respondent had also derived substantial assets from his wife s side
His wife was stated to be the only daughter of a practising doctor
Respondent also claimed that he and his daughter were in receipt of gifts from his mother
The trial court went through the somewhat complex exercise of computing and collating the particulars of the investments made by the respondent in his own name and in the name of his wife from time to time over the years
In Chart No I appended to and forming part of its judgment the trial court formulated what according to it were the results of the collation of these particulars as to the receipts and investments for the various years
In Chart No II the pay and emoluments which respondent was in receipt of for and during the relevant period were set out
In Chart No III the trial court has set out the amounts of interest and dividends received by the respondent during the relevant years
911 6
The substance of the outcome of the exercise by the trial in A relation to the total income of the respondent for the relevant period was referred to and summarized by the High Court thus The total of all these items aggregate of Rs16973669
It is urged on behalf of the State that out of this estimated expense of Rs3111447 should be deducted because they were not available to the respondent to be accumulated as his assets
So the total sources available to him were Rs13862183
 Referring to the total assets acquired by the respondent during the relevant period and the extent of the disproportion the High Court noticed the results of the findings of the trial court thus It was urged that the total assets being Rs22160645 the assets of worth Rs82798423 were in excess
We have heard Shri Bhasme leamed counsel in support of the appeal and Shri UR Lalit who was requested to assist the court as Amicus Curiae in view of the circumstance that respondent remained unrepresented
Learned Counsel have taken us through the judgment under appeal and the evidence on record on the material points
From what we can gather from the somewhat spread out reasoning of the High Court the considerations that principally weighed with the High Court in reaching such conclusions as it did on the material points in controversy before it admit of being formulated thus
a That the selection of the particular period from 141958 to 3 1121968 for the ascertainment and determination of disproportionate assets is itself arbitrary and caused prejudice to the respondent The period of reckoning should have been from 1946 to 1968 as that would have given a fuller and a more complete picture b That it was erroneous to proceed as was done by the trial H 912 court on the premise that respondent was the beneficial owner of the joint bank investments where his name was not the first name That prosecution had failed to establish and it was erroneous on the part of the trial court to have assumed B that in respect of the deposits in which the wife s name occurred first and respondent s name second the respondent alone was the beneficial owner c That the deduction of Rs4183917 as the carried forward assets from the period prior to 141958 was inadequate and it should have been Rs56822
The effect of this would be that the whole of the investments made in the first year of the accounting period viz 1954 would be absorbed by the higher assets so carriedforward d That a sum of Rs6000 which was the value of the probable gift from the mother and Rs1275 representing the brokerage on the fixed deposits had to be given credit to the respondent on the resources side e That from the bank account of Veera Bai the wife of the respondent a sum of Rs8282799 had been with drawn during the period between 141958 and 31121968 and that only Rs3101012 had been given credit to on the plus side in the accounting and that the balance of Rs5181587 should be treated as belonging to Veera Bai in joint investments and should therefore be excluded from the value of respondent s assets
The High Court on the basis of these re calculations held that in all a sum of Rs7721503 could not be treated as the assets of the respondent and had to be deducted from a sum of Rs2216645
In other words the High Court held that the value of the assets of Rs8298423 said to be in excess of and disproportionate to the known sources of income should be reduced by Rs7721503
Concluding the High Court observed 32
Now comes the question whether a man after serving for 22 years from 1946 to 1968 on the prosecution own 913 showing is able to save Rs 138822 can it be said that the assets of Rs 141495 as observed by us are disproportionate assets as required under Section 51e of the Act
In this connection in our opinion the difference is so negligible that it cannot be said to be disproportionate
Shri Bhasme for the appellant seriously assailed the reasoning of and the conclusion reached by the High Court on these points and more particularly on the points noticed at a and b
Learned counsel submitted that the view of the High Court on points a  b was manifestly erroneous and the High Court misdirected itself in law on these propositions
We are inclined to agree with the learned counsel on the submission on points a and b
In order to establish that a public servant is in possession of pecuniary resources and property disproportionate to his known sources of income it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant
There can be no general rule or criterion valid for all cases in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 51e of the Act 
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests
However the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of by the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate
In the facts and circumstances of a case a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture
The assets spilling over from the anterior period if their existence is probablised would of course have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion
On this aspect the High Court observed  20
But at the same time it has also to be remembered that the prosecution without showing any reason has selected to begin the calculation of the assets from 1958
I do not see any substantial reason in the selection of the year 1958
It is on record that from 1954 the accused had 914 become the Appraiser
It is also on record that from year 1958 the accused had separated from his brother mother after the child was born to his wife
When I a the Public Prosecutor for the reason for selecting the period of 1958 to 1968 he said that it was done because the prosecution could lead evidence so as to show that the investment during these 10 years would be disproportionate of assets compared to the moneys received
Looking to the logic of the prosecution if amounts invested upto 1958 excluded by themselves I see considerable force in Vashi s arguments that the first year of 1958 should also be considered along with the previous years
There is no charm in selecting the year
I think that the prosecution would have been in a better position instead of selecting the period of 1958 to 1968 it had taken the entire period service from 1946 to 1968 and given credit of the amount that he has earned against all the assets that he had collected
It is therefore difficult to understand why the prosecution has chosen the period from 1958 to 1968  20
We have carefully considered this evidence of the Police Inspector but still we are not convinced about the selected of the period
We feel that the prosecution by selecting the check period of 10 years when the accused had put in service from 1946 to 1968 ie for 22 years has done something whereby the chances of prejudicing the case of the accused are there 11
The assumptions implicit in the above observation of the High Court suffer from a basic fallacy
It is for the prosecution to choose what according to it is the period which having regard to the acquisitive activities of the public servant in amassing wealth characterise and is late that period for special scrutiny
It is always open to the public servant to satisfactorily account for the apparently disproportionate nature of his possession
Once the prosecution establishes the essential ingredients of the offence of Criminal Misconduct by proving by the standard of criminal evidence that the publicservant is or was at any time during the period of his offence in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence
It then becomes necessary for the public servant to satis 915 factorily account for the possession of such properties and pecuniary resources
It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant
Indeed in State of Maharashtra vs Wasudeo Ramchandra AIR 1981 SC 1189 this Court characterised the approach of that kind made by the High Court as erroneous
It was observed  
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 Sections 51e of the Act unless the prosecution disproves all possible sources of income In the present case the selection of a ten year period between 141958 and 31121968 cannot by reason alone of the choice of the period be said to detract from the maintainability of the prosecution
Equally erroneous in the view of the High Court on the proposition noticed at point b
The assumption that in all jointdeposits the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous
The matter is principally guided by the terms of the agreement inter se between the joint depositors
If however the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first then the presumptive beneficial interest in favour of the first depositor might be assumed
There is no such material before the court in this case
Indeed the answers of the respondent to the specific questions under Section 342 Cr
PC pertaining to the nature of the deposits and the suggestion implicit in the questions as to the beneficial ownership in the respondent in the deposits do not support the view of the High Court and lend credence to any doubts in the matter
Respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under Section 342
The view of the High Court on point b is clearly unsustainable
However these errors of approach and of assumption and inference in the judgment under appeal do not by themselves detract from the conclusion reached by the High Court that in the ultimate analysis the prosecution has not established the case against respondent beyond reasonable doubt
916 The discussion of and the conclusion reached on the contents and parts c to e by the High Court tends to show that the disproportion of the assets in relation to the known source of income is such that respondent should be given the benefit of doubt though however on a consideration of the matter if cannot be said that there is no disproportion or even a sizeable disproportion
For instance Shri Bhasme is right in his contention that the acceptance by the High Court of the case of the alleged gift from the mother is wholly unsupported by the evidence
There are also other possible errors in the calculations in regard to pointe
The finding becomes inescapable that the assets were in excess on the known sources of income
But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct under Section 51e read with Section 52 we think we should not in the circumstanees of the ease interfere with the verdict of the High Court as in our view the difference would be considerably reduced in the light of the factors pointed out by the High Court
A somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes disproportion for purpose of Section 51e of the Act
We think that the respondent should have the benefit of doubt
The appeal is accordingly dismissed
SL Appeal dismissed


Summary:
 The University of Gujarat held election of 28 members of the Court of the University out of 42 members as the election with regard to the 14 seats had been stayed by an order of the High Court
The respondents teachers filed a writ petition in the High Court for setting aside the election of the 28 members and holding fresh election for all the seats
The High Court set aside the election to the 28 seats and directed the holding of fresh election for all the 42 seats
Aggrieved by the decision of the High Court in the writ petition the appellant appealed to this Court
Allowing the appeal the Court  HELD The High Court committed an error in entertaining the writ petition and interfering with the election
Election to the membership of the court of the University and the determination of the disputes relating thereto are regulated by the provisions of the Gujarat University Act 1949
Under section 58 as substituted by the Gujarat Act 9 of 1983
Under the provisions of the Act if a dispute arises with regard inter alia to the election of any member of any authority or other body of the University it shall be referred to the State Government which shall decide the matter and the decision of the Government shall be final
It is well settled that where a statute provides for an election and a machinery or forum to determine any dispute arising out of that election the aggrieved person should pursue his remedy before the forum provided by the statute
It is not permissible to invoke the jurisdiction of the High Court by a writ petition by passing the machinery provided by the Act for the determination of the election dispute
The remedy provided by the statute must be followed except where exceptional extraordinary circumstances exist to justify the by passing of the alternative remedies
In the present case there existed no circumstance justifying departure from this rule and the High Court was not right in entertaining the writ petition
902B 903B C G H 904B 900 KK Shrivastava etc
vs Bhupendra Kumar Jain  Ors AIR 1977 SC 1703 Ramjibhai Ukabhai Parmar vs Manilal Purushottam Solanki  Anr  referred to