Case ID: 4409

Judgment:
N: Criminal Appeal No. 277 of 1976. Appeal by special leave from the judgment and order dated the 9th April	 1975 of the Bombay High Court (Nagpur Bench)	 Nagpur in Criminal Appeal No. 134 of 1971. M.C. Bhandare and R.N. Poddar for the Appellant. P. Govindan Nair	 K. Ramavtar and K.R. Choudhury for the Respondent. The Judgment of the Court was delivered by SEN	 J. The State Government of Maharashtra has preferred this appeal	 by special leave	 against the judgment of the 678 Bombay High Court	 reversing the judgment and sentence of the Special Judge	 Chandrapur and acquitting the respondent of an offence under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act	 1947 (hereinafter called 'the Act '). The respondent	 Wasudeo Ramchandra Kaidalwar	 was a Range Forest Officer	 drawing a salary of Rs. 515 per month. On September 21	 1969	 PW 71	 Patwardhan	 Inspector	 Anti Corruption Bureau under authorisation from the Director	 Anti Corruption Bureau	 Bombay	 carried out search and seizure at the residential house of the respondent. The Inspector made a recovery of Rs. 26	870 in cash from an almirah	 savings bank accounts in the names of the respondent	 his wife and children totalling to Rs. 12	588.35	 national savings certificates worth Rs. 510	 postal savings certificates worth Rs. 184.25 in the name of his daughter	 Nandini	 savings bank deposits with the State Bank of India and the postal savings certificates in the name of his brother in law	 Narayan	 amounting to Rs. 2	279.05	 gold and silver ornaments	 household effects etc. of the value of Rs. 8	602.50	 two sale deeds in respect of two plots bearing Khasra Nos. 28/1K and 28/1Dh in Chandrapur purchased (1) in the name of his wife	 Smt. Sushila for Rs. 5	250 and (2) in the joint names of his wife	 Smt. Sushila and his brother in law	 Narayan for an amount of Rs. 21	210	 papers relating to the building of a house at village Gondpipri built in the year 1965 at a cost of Rs. 10	000. The petitioner was accordingly put on trial for having committed an offence punishable under section 5(2) read with section 5(1)(e) of the Act	 being found in possession of assets disproportionate to his income. The respondent abjured his guilt and denied the commission of the offence. He pleaded that he was leading frugal life and all the property found during the search of his residential house belonged to his father in law	 Hanumanthu	 pairokar of Raja Dharmarao	 Zamindar of Aheri Estate. He alleged that two of the sisters of his father in law were the kept mistresses of Raja Dharmarao and enjoyed special favours from the late Zamindar who bestowed on them large amounts of cash	 ornaments etc. They used to visit the house of his father in law	 Hanumanthu	 once or twice a month	 and used to keep all their cash	 gold and silver ornaments. Hanumanthu owned a grocery shop. He and his father had a liquor shop besides forest contracts. Hanumanthu used to deal in money lending business. The respondent alleged that his father in law deposited an amount of Rs. 30	000 in April 1957	 Rs. 10	000/ in August 1957 and Rs. 35	000 in cash and Rs. 1	000 in coins and also 23 tolas of gold in September	 1957 with his wife	 Smt. Sushila. 679 He pleaded that his father in law died on March 10	 1958 at his house leaving behind his son	 Narayan and two daughters	 Smt. Shakuntala	 who on her marriage with the respondent was re named as Smt. Sushila	 and Smt. Sushila	 his sister in law	 minor at that time. He instructed him to divide the property into three equal shares among his three children. The respondent maintained that he was holding the property merely as a custodian and was not the owner thereof. The Special Judge	 Chandrapur	 by his judgment dated 7.6.1971	 convicted the respondent for having committed an offence punishable under s.5(2) read with s.(5)(1)(e) of the Act inasmuch as he was found in possession of property worth Rs. 79	574.70 as against his only known source of income	 namely	 his total salary in government service amounting to Rs. 44	000. He held that the respondent had failed to account for cash of Rs. 26	870	 sale deeds of the two plots purchased for Rs. 5	250 and Rs. 21	210 in the name of his wife Smt. Sushila and the other jointly in the name of his wife and brother in law	 Narayan and for the house built at village Gondpipri at a cost of Rs. 10	000 He held that the acquisition of these immovable properties was not reasonably attributable to the property left by his father in law	 Hanumanthu. He also rejected the respondent 's plea that he was leading a frugal life and	 therefore	 was able to make a saving of Rs. 15	000 out of his salary income. He accordingly sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 26	870. He further directed that the two plots at Chandrapur and the house at village Gondpipri be sold and the sale proceeds be forfeited. On appeal	 a learned Single Judge of the High Court set aside the judgment and sentence passed by the learned Special Judge and acquitted the respondent. The order of acquittal was based principally on two grounds: (1) The prosecution having failed to discharge the burden of disproving all possible sources of income i.e. failed to account for the properties left by the respondent 's father in law	 Haumanthu	 he could not be convicted under section 5(2) read with section 5 (1)(e) of the Act	 and (2) it was not possible to exclude the probability that the property found in the respondent 's house could be the property left by his father in law	 Hanumanthu. In coming to the conclusion that it did	 the High Court was of the view that the changes brought about by the Anti Corruption Laws (Amendment) Act	 1964 had the effect of limiting the presumption of guilt arising under s.4(1) of the Act to offences of criminal misconduct 680 specified in ss.5(1)(a) and (b) and not to that in s.5(1)(e). It therefore held that mere possession of disproportionate assets by a public servant to his known sources of income for which he has failed to account would not be sufficient to bring home the guilt under s.5(1) (e)	 unless the prosecution further excludes all possible sources of income. The construction placed by the High Court on the provisions contained in s.5(1)(e) of the Act is obviously wrong. It completely overlooks the fact that the burden is cast on the accused by the use of the words "for which the public servant cannot satisfactorily account". It is also wrong in distorting the meaning of the expression "known sources of income" occurring in section 5(1)(e)	 which has a definite legal connotation and which	 in the context	 must mean "sources known to the prosecution". It is distressing to find that the High Court has involved itself into a process of evolution of a new theory of law	 instead of confining itself to a re appraisal of the evidence on record which it was entitled to do sitting as a court of appeal against the judgment of conviction. The order of acquittal recorded by the High Court could still be maintained on a proper evaluation of the facts	 as	 on the proved circumstances	 there was a preponderance of probability that the property found in the respondent 's house could be the property left by his father in law	 Hanumanthu. The legislature deleted s.5(3) of Act which embodied a rule of evidence by s.6 of the Anti Corruption Laws (Amendment) Act	 1964 and instead	 inserted s.5(1)(e) making	 possession of disproportionate assets by a public servant	 a substantive offence. Section 5(1)(e) of the Act reads: 5.(1) A public servant is said to commit the offence of criminal misconduct (e) if he or any person on his behalf is in possession or has	 at any time during the period of his office	 been in possession	 for which the public servant cannot satisfactorily account	 of pecuniary resources or property disproportionate to his known sources of income. Old s.5(3) of the Act was in these terms: 5.(3) In any trial of an offence punishable under subsection(2) the fact that the accused person or any other person on his behalf is in possession	 for which the accused 681 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 if 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 presumption. Three questions arise for our consideration in this appeal	 namely: (1) Whether a public servant charged with having disproportionate assets in his possession	 for which he cannot satisfactorily account	 cannot be convicted of an offence under section 5(2) read with s.5(1)(e) of the Act unless the prosecution disproves all possible sources of his income (2) If the prosecution establishes that a public servant is in possession of pecuniary resources or property disproportionate to his known sources of income	 whether the burden to disprove the charge shifts to the accused to satisfactorily account for the source of acquisition of such resources or property. and if so	 the nature and extent of such burden on the accused. (3) Whether	 on the facts and circumstances of the present case	 having regard to the fact that the respondent 's father in law	 Hanumanthu was pairokar of Raja Dharmarao	 Zamindar of Aheri Estate and left substantial properties	 it was not improbable that the properties found in possession of the respondent belonged to his father in law. It is clear both on authority and principle that s.5(3) which now stands deleted did not create an offence separate from the one created by s.5(1)	 but intended only to lay down a rule of evidence to raise a presumption of guilt in certain circumstances. Section 5(1) defines different species of criminal misconduct which can be committed by a public servant and section 5(2) provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year	 but which may extend to seven years and also shall be liable to fine. Under the old s.5(3)	 a presumption of criminal misconduct could be drawn if such a public servant or any person on his behalf was found to be in possession of pecuniary resources or property disproportionate to his known sources of income for which the public servant could not satisfactorily account. Once the prosecution proved that the accused person was possessed of disproportionate assets	 the burden was shifted to the accused to prove the source of acquisition of such assets. 682 The provisions of s.5(3) have been subject of judicial interpretation. First the expression "known sources of income" in the context of s.5(3) meant "sources known to the prosecution". The other principle is equally well settled. The onus placed on the accused under s.5(3) was however	 not to prove his innocence beyond reasonable doubt	 but only to establish a preponderance of probability. These are well settled principles: C.S.D. Swamy vs The State Sajjan Singh vs State of Punjab and V.D. Jhagan vs State of U.P. The legislature thought it fit to dispense with the rule of evidence under section 5(3) and make the possession of disproportionate assets by a public servant as one of the species of the offence of criminal misconduct by inserting section 5(1)(e) due to widespread corruption in public services. The terms and expressions appearing in section 5(1)(e) of the Act are the same as those used in the old Section 5(3). Although the two provisions operate in two different fields	 the meaning to be assigned to them must be the same. The expression "known sources of income" means "sources known to the prosecution". So also the same meaning must be given to the words "for which the public servant is unable to satisfactorily account" occurring in section 5(1)(e). No doubt	 section 4(1) provides for presumption of guilt in cases falling under sections 5(1)(a) and (b)	 but there was	 in our opinion	 no need to mention section 5(1)(a) therein. For	 the reason is obvious. The provision contained in s.5(1)(e) of the Act is a self contained provision. The first part of the Section casts a burden on the prosecution and the second on the accused. When section 5(1)(e) uses the words "for which the public servant is unable to satisfactorily account"	 it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. 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 5(2) read with s.5(1)(e) of the Act unless the prosecution disproves all possible sources of income. That takes us to the difficult question as to the nature and extent of the burden of proof under section 5 (1) (e) of the Act. The expression 'burden of proof ' has two distinct meanings (1) the legal burden. i.e. the burden of establishing the guilt	 and (2) the 683 evidential burden	 i.e. the burden of leading evidence. In a criminal trial	 the burden of proving everything essential to establish the charge against the accused lies upon the prosecution	 and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution	 in the case of certain offences	 the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is	 however	 not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under section 5(2) read with s.5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge	 the prosecution must prove the following facts before it can bring a case under section 5(1)(e)	 namely	 (1) it must establish that the accused is a public servant	 (2) the nature and extent of the pecuniary resources or property which were found in his possession	 (3) it must be proved as to what were his known sources of income i.e. known to the prosecution	 and (4) it must prove quite objectively	 that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established	 the offence of criminal misconduct under section 5(1)(e) is complete	 unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under section 5(1)(e) cannot be higher than the test laid by the Court in Jahgan 's case (supra)	 i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey	 L.C. in Woolmington vs Director of Public Prosecutions. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in Swamy 's case (supra)	 the prosecution cannot	 in the very nature of things	 be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of s.106 of the Evidence Act	 1872. Section 106 reads: 684 section 106. when any fact is especially within the knowledge of any person	 the burden of proving that fact is upon him. In this connection	 the phrase the burden of proof is clearly used in the secondary sense namely. the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. Such being the law	 the question whether or not the respondent had established a preponderance of probability is a matter relating to appreciation of evidence. On a consideration of the evidence adduced by the respondent	 the High Court has taken the view that it is not possible to exclude the possibility that the property found in possession of the respondent belonged to his father in law	 Hanumanthu. We have been taken through the evidence and we cannot say that the finding reached by the High Court is either manifestly wrong or perverse. Maybe	 this Court	 on a reappraisal of the evidence	 could have come to a contrary conclusion. That	 however	 is hardly a ground for interference with an order of acquittal. There are no compelling reasons to interfere with the order of acquittal	 particularly when there is overwhelming evidence led by the respondent showing that his father in law	 Hanumanthu	 was a man of affluent circumstances. There is no denying fact that Hanumantha was the pairokar of Raja Dharmarao Zamindar of Aheri Estate and by his close association with the Zamindar	 had amassed considerable wealth. More so	 because two of his sisters were the kept mistresses of the Zamindar and amply provided for. It appears that after the death of Raja Dharmarao	 Hanumanthu took up his residence with his elder daughter	 Smt. Sushila	 who was married to the respondent. To substantiate his plea in defence	 the respondent examined as many as 12 witnesses including himself as AW 12	 his sister in law	 Smt. Sushila (AW 11)	 Dr. Chandrasekhar Merekar (AW 6)	 Shri V.N. Swamy	 Advocate	 Chandrapur (AW 8). We cannot brush aside the unimpeachable testimony of Shri V.N. Swamy	 AW 8	 who was a leading advocate of Chandrapur and Member of Lok Sabha	 and Dr. Chandrasekhar Merekar	 AW 6	 Medical Practitioner of Chandrapur	 who attended on Hanumanthu at the time of his death. Both these witnesses have unequivocally stated that when Hanumanthu died at the respondents leaving his two minor children	 Smt. Sushila and Narayan to the care of the respondent and his wife	 Smt. Sushila	 he told them that he 685 was leaving properties worth Rs. 70 to 80 thousand comprising cash ornaments	 jewellery etc.	 and expressed a desire that the same be divided equally among	 his three children	 the two daughters and son. Shri Swamy testified to the fact that he was handling all the litigation of Raja Dharamrao	 Zamindar of Aheri Estate who had an yearly income of Rs. 6 to 8 lakhs because the Zamindar had rich forests. He tells us that he knew Hanumanthu well because he was the pairokar of Raja Dharmarao	 that Hanumanthu enjoyed great confidence of the Zamindar and had free access to him because his two sisters were the kept mistresses of the Zamindar. His evidence shows that the ladies were well provided for and whenever they visited Hanumanthu they used to hand over their cash	 ornaments and jewellery to him for safe custody. His evidence also shows that Hanumanthu was a man of affluence and that he and his father had a liquor shop besides forest contracts. Hanumanthu also used to deal in money lending business. The respondent has also placed on record documents showing that Hanumanthu was a man of substantial means. To add to the difficulty of the prosecution	 Smt. Sushila	 AW 11	 sister in law of the respondent has come and deposed that all the property belonged to her father. All this evidence is sufficient to create a doubt as to whether the respondent was in possession of disproportionate assets. There is certainly a preponderance of probability that the property found in the possession of the respondent did not belong to him but belonged to his father in law	 Hanumanthu. The result	 therefore	 is that the appeal must fail and is accordingly dismissed. P.B.R. Appeal dismissed.

Summary:
The respondent was a Range Forest Officer on a monthly salary of Rs. 515. In a search conducted by an officer of the Anti Corruption Bureau	 Rs. 26 thousand odd in cash	 savings bank accounts in the names of himself	 his wife and children	 national savings certificates	 postal saving certificates	 gold and silver ornaments	 sale deeds of certain properties in the name of his wife	 sister in law and brother in law aggregating in all to over Rs. 79 thousand were discovered from his house. On the allegation that he was found in possession of assets disproportionate to his known sources of income he was charged with offence punishable under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act	 1947. The respondent pleaded that he led a frugal life and that secondly much of the property found in his house belonged to his father in law. He added that his father in law was a pairokar of a Zamindar in the area	 that two sisters of his father in law were the kept mistresses of the Zamindar	 and the Zamindar gave large amounts of cash and presents most of which were passed on to his father in law. At the time of his death	 his father in law entrusted his minor daughter and son to his care and instructed that his property should be divided among his three children equally and that therefore he was holding the property merely as a custodian. Rejecting the plea of the respondent a Special Judge convicted and sentenced him under section 5(2) read with section 5(1)(e) of the Act. On appeal a single Judge of the High Court acquitted him holding that the prosecution had failed to discharge the burden of disproving all possible sources of the respondent 's income	 that it was not possible to exclude the probability that the property found in his possession could be the property left by his father in law	 and that mere possession of assets disproportionate to his known sources of income would not be sufficient to bring home the guilt under section 5(1)(e) unless the prosecution further excluded all possible sources of income. The High Court was also of the view that the changes brought about by the Anti 676 Corruption Laws (Amendment) Act	 1964 had the effect of limiting the presumption of guilt arising under section 4(1) of the Act to an offence of criminal misconduct specified in section 5(1)(a) and (b) and not to that in section 5(1)(e). ^ HELD: The construction placed by the High Court on section 5(1)(e) was wrong in that it overlooked the fact that	 by the use of the words "for which the public servant cannot satisfactorily acquit"	 a burden is cast on the accused. [680 B] Section 5(3) which now stood deleted	 did not create an offence separate from the one created by section 5(1) but only raised a presumption of criminal misconduct if he or any person on his behalf was in possession of pecuniary resources or property disproportionate to his known sources of income which he could not satisfactorily account. Once the prosecution proves this fact the burden shifts on to the accused to prove the source of acquisition of such assets. [681 F G] The expression "known sources of income" in the context of the section means "sources known to the prosecution". Secondly	 the onus placed on the accused under the section was not to prove his innocence beyond reasonable doubt but only to establish a preponderance of probability. To eradicate the widespread corruption in public services the legislature dispensed with the rule of evidence under section 5(3) and made possession by a public servant of assets disproportionate to his income as one of the species of offences of criminal misconduct by inserting clause (e) in section 5(1). [682 A C] The meaning to be assigned to the expression "known sources of income" occurring in section 5(1)(e) must be the same as was given to that expression in section 5(3) before its repeal	 that is	 "sources known to the prosecution". So also the same meaning must be given to the words "for which a public servant is unable to satisfactorily account" occurring in section 5(1)(e). When clause (e) uses the words "if the public servant is unable to satisfactorily account" it is implied that the burden is on such public servant to account for the sources for the acquisition of assets disproportionate to his income. The High Court was	 therefore	 in error in holding that a public servant charged for having in his possession assets disproportionate to his income for which he cannot satisfactorily account could not be convicted of an offence under section 5(2) read with section 5(1)(e) unless the prosecution disproves all possible sources of income. [682 D F] Sajjan Singh vs State of Punjab ; and V.D. Jhagan vs State of U.P. ; 	 referred to. The expression "burden of proof" has two distinct meanings: (1) the legal burden	 that is	 the burden of establishing the guilt and (2) the evidential burden	 that is	 the burden of leading evidence. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution	 in the case of certain offences	 the burden of proving a particular fact in issue may be laid by law upon the accused. This burden is not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. To substantiate the charge of criminal misconduct under section 5(2) read with section 5(1)(e) the prosecution must prove (1) that the accused was a public servant; (2) the nature and extent of the pecuniary resources or property in his possession	 (3) his known sources of income	 i.e. known to the prosecution; (4) that such 677 sources or property were disproportionate to his known sources of income. Once these are established	 the offence of criminal misconduct under section 5(1)(e) would be complete. The burden then shifts to the accused to substantially account for possession by him of assets disproportionate to his income. The extent and nature of burden of proof resting upon the public servant cannot be higher than establishing his case by a preponderance of probability. [683 A E] In the instant case the High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. The prosecution cannot in the nature of things be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income that is his salary	 because these are matters specially within his knowledge	 within the meaning of section 106 of the Evidence Act. The phrase "burden of proof" in section 106 of Evidence Act is clearly used in the secondary sense	 namely the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. [684 B] On the proved circumstances there was a preponderance of probability that the property found in the respondent 's house could be the property left by his father in law. There is overwhelming evidence on record that the respondent 's father in law was a man of affluent circumstances	 being a paiorkar of a Zamindar and that he had amassed considerable wealth	 more so because his two sisters were the kept mistresses of the Zamindar. On the death of the Zamindar his father in law stayed with the respondent. Also	 the respondent 's father had a liquor shop besides forest contracts. The evidence led in the case was sufficient to create a doubt whether the respondent was in possession of assets disproportionate to his known sources of income. On the other hand there is preponderance of probability that the property in his possession belonged not to him	 but to his father in law. [684 D H]