Case: State Of Maharashtra Vs. Pollonji Darabshaw Daruwalla

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 vigorous imprisonment for 3 year and to pay a fine of Rs. 20, 000/-.  The High Court allowing respondents appeal before it acquitted him of the charge. The State has come up in appeal.

Reasoning:
8. 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 1-4-1958 to 31-12-1968) 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 prosecution had failed to establish - and it was erroneous on the part of the trial Court to have assumed - that in respect of the deposits in which the wifes name occurred first and respondents name second, the respondent alone was the beneficial owner(c) That the deduction of Rs. 41, 839.17 as the carried forward assets from the period prior to 1-4-1958 was inadequate and it should have been Rs. 56, 822/-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 carried forward;(d) That a sum of Rs. 6, 000/- which was the value of the probable gift from the mother and Rs. 1, 275/- 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resources side;(e) That from the bank account of Veera Bai, the wife of the respondent a sum of Rs. 82, 827.99 had been withdrawn during the period between 1-4-1958 and 31-12-1968 and that only Rs. 31, 010.12 had been given credit to on the plus side in the accounting and that the balance of Rs. 51, 815.87 should be treated as belonging to Veera Bai in joint investments and should, therefore, be excluded from the value of respondents assets9. The High Court, on the basis of these recalculations, held that in all a sum of Rs. 77, 215.03 could not be treated as the assets of the respondent and had to be deducted from a sum of Rs. 2, 21, 66.45. In other words, the High Court held the value of the assets of Rs. 82, 984.23 said to be in excess of and disproportionate to the known sources of income should be reduced by Rs. 77, 215.0310. Shri Bhamse 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 (a) and (b) was manifestly erroneous and the High Court misdirected itself in law on these propositionsWe are inclined to agree with the learned counsel on the submission on points (a) and (b) In order to establish that 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 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 S. 5(1)(e) of the ActIn the present case, the selection of a ten year period between 1-4-1958 and 31-12-1968 cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution12. Equally erroneous is the view of the High Court on the proposition noticed at point (b). The assumption that in all joint deposits, 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 caseIndeed, the answers of the respondent to the specific questions under S. 342, Cr.P.C. 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 doubt in the matter. Respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under S. 342. The view of the High Court on point (b) is clearly unsustainable13. 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 doubtThe 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 sources of income is such that respondent should be given the benefit of doubt though, however, on a consideration of the matter, it cannot be said that there is no disproportion or even a sizeable disproportion. For instance, Shri Bhamse 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 point (c). The finding becomes inescapable that the assets were in excess of 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 S. 5(1)(e) read with S. 5(2), we think, we should not, in the circumstances of the case, 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 purposes of S. 5(1)(e) of the Act.