Criminal Appeal (SJ) No.213 OF 1995 (Appeal against the Judgment and Order dated 15.9.1995 passed by the Special Judge (Vigilance), North Bihar, Patna, in Special Case No. 31 of 1988.) ----------- KANHAIYA LAL SON OF LATE MAHESHWARI PRASAD, RESIDENT OF J.P. COLONY, CHANDWARA, P.S. MUZAFFARPUR, DISTT. MUZAFFARPUR. ---------APPELLANT Versus THE STATE OF BIHAR -------- RESPONDENT. ---------- For the Appellant :Mr. Shyama Prasad Mukherjee Sr. Advocate. Mr. Gouranga Chatterjee, Adv. Mr. Goyanand Roy, Adv. For the Vigilance : Mr. Arvind Kumar, Law Officer, Vigilance. ------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The Appellant has been convicted under Section 5(2)/ 5(1)(e) of the Prevention of Corruption Act corresponding to Section 13(2)/13(1)(e) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 5,000/- in default of which a further imprisonment of three months by the Special Judge (Vigilance), North Bihar, Patna, in Special Case No. 31 of 1998 by a Judgment dated 15.9.1995. 2. The prosecution case is that the Appellant had joined as a Junior Engineer in the Public Health Engineering Department, Govt. of Bihar, in the year 1956, and in 1981 he was posted as Assistant Engineer at Muzaffarpur. A complaint was made in his regard that he had accumulated assets beyond his known sources of income. An enquiry was initiated and finally it was found that 2 between the check period i.e. 1956 to 1982, the Appellant had acquired assets to the tune of Rs. 1,59,077.00 which was not satisfactorily accounted by him during investigation. 3. The prosecution in all examined eleven witnesses out of whom PW-1 is a witness who proved sanction order. PW-2 is a formal Investigation Officer. PW-3 and PW-4 are part Investigating Officers. PW-5 is the Inspector of Vigilance who had enquired about Muzaffarpur land whereas PW-6 is the Assistant Engineer who had valued the house of the Appellant. PW-7 is a formal witness whereas PW-8 had enquired about the land and bank account of the Appellant. PW-9 is a witness on the Inventory list. PW-10 is the Investigating Officer. PW-11 is the Officer who conducted search of the house and prepared inventory list. PW-3 is one of the Enquiry Officers on the claims by the Appellant. PW-4 is also on the enquiry conducted into the assets of the Appellant. PW- 6 is the witness who had gone for assessment of the house of the Appellant at Muzaffarpur and had submitted a verification report with regard to the measurement of the house. PW-8 is also eye witness who had made an enquiry with regard to the claims made by the Appellant. PW-11 is similarly also on the point of claims of the Appellant. 4. It has been submitted that the total disproportionate assets assigned to the Appellant is to the tune of Rs. 1,59,257.00 but the same is based on a wrong calculation conducted by the prosecution which is evident from the evidence of the prosecution witnesses itself. In support thereof notice of this Court has been drawn to the evidence of PW-4, Paragraph-14, wherein the said 3 witness stated that he had verified the claim of the Appellant that he had taken Rs. 30,000/- as loan from his father-in-law and 15,000/ from his father and they had both supported this fact. Therefore, the amount which the prosecution has not calculated, comes to about Rs. 45,000/-. In addition, this witness in paragraph-22 stated that two persons namely Ghuran Yadav and Maheshwar Prasad also supported the fact that the Appellant had taken loan from them. Ghuran Yadav had corroborated the fact that his father had loaned a sum of Rs. 10,000/- to the Appellant and, therefore, the figure rises to Rs. 55,000/-. Further, the attention of the Court is also drawn to the evidence of PW-3 at paragraph-9 wherein one of the colleagues of the Appellant had been questioned as to whether the Appellant had been loaned some money at his end and he had supported the fact. 5. The Attention of this Court is also drawn to the evidence of PW-4 at paragraph 25 wherein it has been stated that from the ancestral lands situated in Hardiya Mouza, agricultural income was assessed at Rs. 2,500/- per annum which would come to around 67,500/- between the year 1956 to 1982 i.e. the check period which has wrongly been calculated at 32,500/-. 6. Under the circumstances, it was submitted that Rs. 90,000/- is well explained even as per the evidence of the prosecution witnesses and the shortfall would be only around Rs. 70,000/-. Even this amount can be explained from the evidence of PW-11 at paragraph-15 wherein he has conceded that the Appellant also owned ancestral lands at Muzaffarpur Parsauna but 4 the agricultural produce was not calculated, for the reason of assessment of the income of the Appellant. 7. Under these circumstances, the counsel for the Appellant challenges the calculation made by the prosecution was vitiated and that the Appellant had not explained Rs. 1,59,257.00 during his tenure of service and the case was not proved by the prosecution and in fact it suggested that the entire allegation was based on a miscalculation. 8. On the other hand, the counsel for the Vigilance submits that no leniency should be meted out to a person who was dishonest and, therefore, the Appeal deserves to be dismissed 9. Considering that the Supreme Court has observed that a liberal view should be taken in matters whenever it is demonstrated to the court that there has been a miscalculation by the prosecuting agency and the Appellant has succeeded in demonstrating the same as also that the shortfall, if at all, after the calculations is very meagre, I am inclined to allow the Appeal. 9. Considering the same, the Appeal is allowed. The order of conviction and sentence passed against the Appellant in Special Case No. 31 of 1988 by the Special Judge (Vigilance), North Bihar, Patna, is hereby set aside. 10. The Appellant is discharged from the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 17th day of May, 2011 NAFR/S.ALI.