THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.555 of 2004 JUDGMENT: Appellant is the accused in C.C.No.4 of 1998 on the file of the Court of Additional Sessions Judge for SPE & ACB cases- cum-V Additional Chief Judge, City Civil Court, Hyderabad (trial Court). He was tried on a charge of possessing wealth/assets disproportionate to his known sources of income punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act). He pleaded not guilty. 2. The details of the evidence let in by the prosecution and appellant are given in the appendix of evidence at the foot of the trial court’s judgment. The trial court, after considering the evidence let in by both sides, has by its judgment dated 17.12.2003 found the appellant guilty of the above charge and convicted and sentenced him to rigorous imprisonment for two years and also to pay a fine of Rs.2,000/- with a default clause prison sentence and further ordered confiscation of the value of the disproportionate assets fixed by it. Questioning the said judgment the appellant has come up with this appeal. 3. According to the prosecution the appellant was at the relevant time working as Junior Geologist in the office of the Executive Engineer, Panchayat Raj, Dharmavaram Division in Ananthapur District. The check period chosen by the prosecution is from 21.11.1970 i.e. the date of entry of the appellant into Government service upto 25.03.1995 i.e. the date of the searches carried out by ACB police in his premises and other relevant places. 4. The prosecution for the purpose of calculating his disproportionate wealth for the check period has shown the value of the assets acquired and possessed by the appellant in his name and his wife’s name, his total income and expenditure during the check period along with his savings and the value of the disproportionate wealth in annexures to the charge sheet and they are as follows. (i) Value of assets (42 items) - Rs.10,43,544/- (ii) Total income (15 items) - Rs.13,21,654/- (iii) Total expenditure - Rs.7,37,249/- (iv) Savings (income-expenditure) - Rs.5,84,405/- (v) disproportionate wealth - Rs.4,59,139/- 5. At trial, the appellant took the defence that some of the assets belong to his wife and some belong to his son and he further pleaded that the prosecution has boosted the value of the assets and the income and deliberately increased the expenditure. The trial court considered the defences of the appellant on evidence and partly allowed them and fixed the value of the disproportionate wealth/assets of the appellant at Rs.1,25,535/- and accordingly convicted and sentenced him. The details of the total income and expenditure and value of the assets and savings fixed by the trial court are found in its judgment and in fixing the total income it also granted ten per cent addition or allowance. 6. Before going into the respective contentions raised on behalf of the appellant and the prosecution, it must be mentioned that the trial court has come to its own conclusions in reducing the value of the disproportionate wealth of the appellant to Rs.1,25,535/- by reducing the values of the assets, total income, expenditure and the savings of the appellant from those pleaded by the prosecution. The prosecution did not file any appeal questioning the above conclusions of the trial court. It may however be noted that Sri Ghani A Musa the learned Standing Counsel for the ACB could not convincingly show any reason to hold that the trial court’s valuation of the disproportionate wealth at Rs.1,25,535/- is wrong and that the prosecution version in that behalf should be accepted. Hence that question is not gone into. 7. In this appeal, Sri Padmanabha Reddy, the learned senior counsel appearing for the appellant’s counsel first pointed out that certain assets should have been deleted by the trial court and it also committed an error in not accepting the case of the appellant in full with regard to item-1 of the assets. With regard to National Savings Certificates (NSCs) and Indira Vikas Patras (IVPs), he pointed out that they were already encashed prior to the date of search and therefore they have to be treated as income of the appellant. With regard to the agriculture income of the appellant he pointed out that the trial court should have accepted the figures given by the appellant. He next argued about certain items of expenditure and pointed out that they were also boosted up to support the prosecution case and that expenditure should also to be reduced and he urged that if his contentions are accepted the charge against the appellant cannot be sustained. On the other hand, Sri Ghani A Musa the learned Standing Counsel appearing for the Anti Corruption Bureau (ACB) supported the judgment of the trial court and pointed out that there is no ground to interfere with it. 8. I shall now first take up the arguments of Sri Padmanabha Reddy with regard to the assets. Item-1 of the assets is a house bearing D.No.11/430-B5 at Ananthapur. The prosecution gave the cost of the plot of the house at Rs.25,000/- and gave the value of the construction over it at Rs.5,67,000/- and has shown the total cost at Rs.5,92,000/-. The prosecution plea that the whole house including purchase of plot was acquired with the funds of the appellant himself has been accepted by the trial court and there is no ground to disturb this finding of the trial court. The dispute is now with regard to valuation of this asset. 9. P.W.4 C.Radhakrishna Reddy the then Deputy Director of the Engineering wing of the ACB valued the construction and Ex.P.8 is his valuation report. Ex.P.8 shows that P.W.4 valued the construction on the basis of SSR rates prevalent during 1989- 90 and valued the construction at Rs.6,30,000/- and after giving 10% deduction i.e. Rs.63,000/- for personal supervision he gave the net value of the construction at Rs.5,67,000/-. The trial court having regard to the answers given by P.W.4 that a private person may not pay the wages as per SSR rates and further he may employ less number of labourers gave a further deduction of 5% i.e. Rs.28,350/- and fixed the cost of construction at Rs.5,38,650/- . The appellant gave valuation of the construction at Rs.4,98,000/- notwithstanding the version of D.W.5 the Engineer examined by him gave its valuation at Rs.3,98,000/- earlier. Sri Padmanabha Reddy pointed out that the construction should have been valued at Rs.4,98,000/- as pleaded by the appellant whereas this is opposed by Sri Ghani A Musa. 10. It should be now noted that P.W.4 the ACB Engineer in his cross-examination stated that two types of steel i.e. MS steel or Tor steel can be used for the purpose of construction and that price difference between both the steels will be minor but he cannot say what will be the price difference and added that he cannot also say which type of steel was used. He then stated that in his report he stated that some doors were made of teakwood whereas the contention of the appellant is that many of the doors were made of country wood but this was denied by P.W.4. A perusal of Ex.P.8 report would show that the valuation has been made on the basis of SSR rates pertaining to the relevant years. The above answers of P.W.4 would show that there can be difference in the steel prices and not all doors were also made of teakwood. It may be noted that usually a person who constructs a house would go for teakwood only for the entrance doors for the sake of safety and for the interior doors one can choose country wood or other cheaper variety of wood. Further D.W.7 Challa Balakrishna who is the brother-in-law of the appellant stated that he used his tractor for freely transporting sand and other construction material including wood. Normally a person can expect such a help from brother-in-law especially when the trial court itself found that the father-in-law of the appellant purchased a tractor. 11. The trial court ignored the above circumstances in the evidence. Having regard to the above evidence and also the fact that a private person may not spend for construction the amounts fixed by the SSR rates, I am of the opinion that a further sum of Rs.35,000/- can reasonably be deducted from the cost of the construction. Sri Ghani A Musa could not show any convincing reason for refusing this deduction which is slightly more than five per cent. Thus the cost of the construction stands further reduced to Rs.5,03,650/- (Rs.5,38,650 fixed by the trial court minus Rs.35,000/-). Adding the cost of Rs.25,000/- i.e. the plot cost, the value of the item-1 house would workout to Rs.5,28,650/-. 12. Now coming to item-12 of the assets which are “household articles” the prosecution valued them at Rs.1,30,947/-. The trial court discussed this item-12 and after giving its own reasons for giving certain deductions it fixed their value at Rs.84,805/-. Here it should be noted that in the list of assets in the charge sheet Kinetic Honda worth Rs.7,000/-, Hero cycle worth Rs.900/- and cash of Rs.5,665/- were shown as items-9, 13 and 10 and they were again included in the cost of household articles. The trial court gave a deduction for them. It then considered the contention of the appellant for deduction of Rs.45,700/- towards value of the furniture, electrical and electronic items on the ground that they were either gifts or were purchased over a period from time to time and rejected the said contention. It then observed that for clothing and household appliances, kitchenware and utensils a sum of Rs.46,142/- requires to be deducted and it deducted a sum of Rs.46,142/- from the total value i.e. Rs.1,30,947/- of the household articles and fixed their value at Rs.84,805/-. It appears that the sum of Rs.39,342/- covers the values of Kinetic Honda scooter, Hero cycle and cash which are mentioned earlier. 13. Sri Padmanabha Reddy however pointed out that out of Rs.45,700/- claimed for furniture, electrical and electronic goods the trial court should have given total deduction or at least deducted half of it, for old furniture as they cannot be treated as assets as they cannot fetch any price. This contention or plea of the appellant merits acceptance in part. Ex.P.1 is the inventory taken out regarding the articles found in item-1 house on the date of the search. Of them, it will be found that the IO has included insignificant items such as old calculators, tube lights, wall mirrors, ‘S’ type chairs, Aluminium chairs, old wall clocks and even brass and zinc buckets, a rain coat, wooden tables and other iron chairs, a wooden bench and even a trunk box showing their values ranging from Rs.25/- to Rs.1200/-. 14. Ex.P.1 inventory itself would show that all the said articles were purchased at different times and in different years. It should also be noted that the above articles are found in any household and they are usually purchased from time to time over a period of time over several years and the family might have purchased them as and when money is available for its needs. My opinion is such items should not be shown as assets for these reasons. It may be noted that expenditure may have been incurred for purchasing the said items of furniture and electrical goods but even according to the prosecution the appellant has not purchased them at a time and the purchases extended to different dates over several years. Further even if the said old items of furniture and electrical goods are put up for sale it cannot be said that they will have any resale value and they will be treated as junk and the prosecution did not show any circumstance to hold otherwise. Thus having regard to the nature of the furniture items and electrical goods and even electronic goods which were many items and purchased for meagre amounts their value may work out to Rs.10,000/- and this amount has to be deducted from the value of the household articles as they cannot be treated as asset at all. 15. Then coming to items 21 to 40 of the assets which are investments in certain finance companies and shares of certain other companies, the plea of the appellant is that they were all made or acquired with the monies of his wife and son Chakrapani and he has nothing to do with them. Sri Padmanabha Reddy however could not point out any circumstances in the evidence which support his above contention. The trial court discussed each and every item of the above items 21 to 40 and concluded against the appellant and there is no reason to interfere with its conclusion on the said assets. 16. That takes me to items-41 and 42 of the assets. Item-41 are NSCs worth Rs.20,000/- and item-42 are IVPs worth Rs.25,000/-. Admittedly even according to P.W.16 the IO both the above investments were encashed even before the date of the search which is 25.3.1995. It was pointed out that since the above investments were not available by the date of the search, they cannot be treated as assets. There is no force in this contention. It may be noted that Section 13(1)(e) of the Act speaks of an asset of which the public servant has been in possession also and this would indicate that an asset held by the public servant but disposed of by him during the check period or the period of his office should also be taken into account. No decision has been cited to uphold the above contention of appellant. 17. It should be noted that interest earned on the above investments has been shown as income of the appellant by the prosecution itself but I do not propose to go into the question whether the said act of the prosecution was right or wrong as the prosecution itself was based by showing the above interest as income. What should be noted is that the above two investments in NSCs and IVPs should be treated as assets and the appellant has to explain the acquisition of the same with regard to his income and savings to show that he is not in possession of any disproportionate wealth. Hence the contention of the appellant with regard to items-41 and 42 is rejected. To sum up with regard to the assets, a sum of Rs.35,000/- deducted from the value of the item-1 house and a sum of Rs.10,000/- deducted from the value of item-12 household articles has to be subtracted from the value of the assets fixed by the trial court at Rs.9,51,552/-. In other words, the value of the assets stands reduced to Rs.9,06,552/-. 18. Sri Padmanabha Reddy with regard to income items, argued about agricultural income of the appellant which is shown at Rs.1,29,290/- by the prosecution in the charge sheet. His contention is that the appellant claimed an income of Rs.8,60,000/- and odd and the trial court rejected it erroneously and the whole amount should be added to the income. The appellant claims the above amount of agricultural income from three acres of his agricultural land shown as item-7 in the list of assets in the charge sheet by the prosecution. The trial court discussed this contention of the appellant elaborately considering each year’s income and in fact it has increased the agricultural income of the appellant to Rs.2,27,746/-. A perusal of the reasons given by the trial court would show that there is no compelling ground to interfere with its conclusions on this aspect and increase this income further and this contention is accordingly rejected. Thus the total income fixed by the trial court giving ten per cent allowance at Rs.15,62,121/- is confirmed. 19. Then coming to expenditure items Sri Padmanabha Reddy attacked the finding of the trial court on item-6 thereof i.e. expenditure on education of children. Under this item of expenditure the prosecution has shown a sum of Rs.74,833/. According to P.W.16 the IO out of this amount of Rs.74,833/- a sum of Rs.50,000/- is shown as expenditure towards the alleged donation amount paid by the appellant for securing engineering seat for his son N.Chakrapani in Siddaganga Institute of Technology, Tumkur, Karnataka State. Sri Padmanabha Reddy’s contention is that there is no evidence at all from the prosecution side to prove this expenditure and the trial court wrongly on the basis of Ex.P.117 diary said to have been written by the aforesaid Chakrapani included this amount of Rs.50,000/- in the expenditure and if that is deleted the expenditure should be reduced to that extent. 20. P.W.16 in his cross-examination pertaining to this expenditure admitted that the authorities of the above Technology institute have not given any letter or evidence to the effect that they have taken the donation of Rs.50,000/-. He however relied upon the entries in Ex.P.117 diary alone of Chakrapani. This Ex.P.117 diary pertains to the year 1984. It however purports to contain the writings or entries said to have been made by N.Chakrapani from January 1985 onwards. In one entry of the month of August 1988 a writing is found to the effect that the then President General Gia-Ul-Haq of Pakistan died in a plane crash on 18th August of 1988. It then further contains a writing to the effect that he was admitted in Tumkur perhaps in the engineering course by paying a donation of Rs.50,000/-. The prosecution relied upon only this diary entry and the trial court also upheld it on the ground that since General Gia-Ul-Haq date of death and cause of his death are correct the said diary entry can be accepted. 21. In the cross-examination P.W.16 admitted that except the above diary there is no other document to show that appellant spent Rs.50,000/- towards the engineering seat donation. Ex.P.93 letter dated 30.01.1996 given by the Principal of Siddaganga Institute of Technology would show that Chakrapani studied B.E. course from 09.07.1988 onwards but this letter is silent about receipt of donation. The question now is whether the above entry in Ex.P.117 diary alone is sufficient to uphold the prosecution case on the expenditure. 22. It may be noted that after receiving Ex.P.93 letter the IO did not choose to ascertain from the above engineering college at Tumkur to find out whether it has collected any donations during the year 1988 and if so what were the amounts. It may be true that a private engineering college may collect donations unauthorisedly but still the IO had full power to ascertain from the accounts of the above college and he would have found out material to establish that the said engineering college was collecting donations and in fact collected donation of Rs.50,000/- from the appellant also for admitting his son Chakrapani in that college. The total education expenditure for the three children of the appellant is shown at Rs.74,833/- and this covers the donation amount of Rs.50,000/- also. In other words, ignoring the donation the appellant can be said to have incurred an expenditure of only Rs.24,833/- on the education of his children during the check period and this donation of Rs.50,000/- is double the amount spent on education of the children. It would be improbable to believe that appellant would have spent that amount only for donation. 23. It is the duty of the IO to show that spending of Rs.50,000/- for donation in the above situation is probable by securing corroborative evidence. For this purpose the IO should have gathered sufficient information/ material from the above technology institute. The IO failed to gather further such information/material to corroborate the above diary entry. In view of this I am of the opinion that it will not be safe to accept the prosecution case merely on the strength of the above diary entry to hold that the allegation of payment of donation stands proved basing on the probability theory which is enacted in the definitions of the expressions “proved”, “disproved” and “not proved” contained in the Evidence Act. In the above circumstances it follows that the benefit of doubt should go to the appellant on this aspect holding that the prosecution case on this expenditure remains “not proved”. It thus follows that an amount of Rs.50,000/- has to be deducted from the expenditure. 24. Then the next item of disputed expenditure is item-7 of the expenditure items shown in Annexure-III to the charge sheet. This item pertains to the maintenance of Kinetic Honda scooter bearing No.ADA 9694 belonging to the appellant shown as item-9 of the assets shown in the charge sheet at Rs.9,900/-. 25. P.W.16 S. Jawahar Basha the IO while speaking about the Kinetic Honda in his chief examination stated that it was acquired by the appellant from one K.Rajendra prasad for Rs.7000/- in the year 1990. However in the cross-examination he stated that as per Ex.P.117 diary maintained by the appellant’s son Chakrapani it was found that it was purchased by the appellant on 18.10.1986 and he estimated the maintenance expenditure at Rs.100/- per month from 18.10.1986 to 25.03.1995 i.e. the date of search and calculated it at Rs.9,900/-. 26. It should be noted that even Ex.P.22 letter of the RTA dated 17.01.1987 would show that the above scooter was registered in the name of Rajendra Prasad on 17.01.1987. If that is so the version of the IO as to how he could rely upon Ex.P.117 diary and come to the conclusion that the appellant acquired it on 18.10.1986 i.e. even three months before its registration in the name of Rajendra Prasad is not clear. The trial court without noticing the above circumstances simply accepted the version of the prosecution totally ignoring the evidence of P.W.16 in his chief examination that the appellant acquired it in the year 1990. Thus the finding of the trial court on this aspect cannot be sustained merely on the basis of Ex.P.117 diary. 27. Calculating even from January 1990 upto the date of search which is 25.3.1995 the period during which the appellant possessed the scooter would work out to roughly five years and three months i.e. sixty three months. The P.W.16 the IO stated that the appellant could have spent Rs.100/- per month on the maintenance of the above scooter. The scooter expenditure would thus workout to Rs.6,300/- and therefore a sum of Rs.3,600/- has to be deducted from the expenditure. 28. Then turning to household expenditure which is shown as item-11 in expenditure items the prosecution has shown a sum of Rs.2,64,419/- i.e. food, etc. The learned senior counsel for the appellant pointed out that the trial court should have given ten per cent deduction having regard to the fact that the appellant’s family owned three acres of agricultural land from which it could get some groundnuts and fruits and also rice on some occasions and also having regard to the fact that the prosecution has also shown the personal expenditure of two sons of the appellant separately at Rs.92,925/- and Rs.27,750/-. The trial court discussed this item of expenditure and it rejected the appellant’s version on the ground that the IO has calculated the food expenditure on the data of the survey results adopted by the Central Statistics Organization, New Delhi. 29. It may be noted that the trial court has elaborately discussed the agricultural income of the appellant starting from 1979 upto 1994 and increased it to Rs.2,27,746/-. The trial court has discussed that the appellant’s family has raised groundnuts and cheeny fruits in the said land. It can be said that the appellant’s family must have taken some of the groundnuts and fruits for its own consumption which it can be said to have obtained free of cost having regard to the fact that agricultural expenses have already been calculated. Further the prosecution has also shown separately the personal expenditures of the two sons of the appellant who were dependants on him for the