TMI Blog1959 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... Division, with effect from January 2, 1947. The appellant was working in that Department as Director of Fertilizers. He was a former employee of the well-known producers of fertilizers, etc., called Imperial Chemical Industries . Fertilizers were in short supply and, therefore large quantities of such fertilizers had to be imported from abroad. As chemical fertilizers were in short supply not only in India but elsewhere also, an international body known as the International Emergency Food Council (I.E.F.C.) had been set up in United States of America, and India was a member of the same. That body used to consider the requirements of different countries in respect of fertilizers, and used to make allotments. Russia was not a member of that Organisation. Towards the end of 1946, a Bombay firm, called Messrs. Nanavati and Company , which used to deal in fertilizers and had bussiness contcts with Russia, offered to supply ammonium sulphate,from Russia to the Government of India. In the years 1947 and 1948, considerable quantities of ammonium sulphate were obtained through Messrs. Nanavati and Company aforesaid. One D. N. Patel, who was a former employee of Messrs. Nanavati a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not concerned here. -The second case, out of which the present appeal arose, was instituted against two persons, namely the appellant and Krishnaswamy, that they had entered into a conspiracy to receive bribes and presents from various firms, in connection with the import of fertilizers. The learned Special Judge, who heard the prosecution evidence, came to the conclusion that it did not disclose any conspiracy as alleged, except in certain instances which formed the subject-matter of the charge of conspiracy which was being tried separately, as aforesaid. The present case, therefore, proceeded against the appellant alone under two heads of charge, namely, (1) that he had been habitually accepting or obtaining, for himself or for others, illegal gratifications from a number of named firms and others, in connection with the import and distribution of fertilizerss. 5(1) (a) of the Prevention of Curruption Act, 1947 (hereinafter referred to as the Act ), and (2) that he had been habitually receiving presents of various kinds by abusing his position as a public servants. 6 (1) (d) of the Act. The High Court, in agreement with the learned Special Judge, found the evidence of P. Ws. 9 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the provisions of s. 5(3) of the Act, it has been contended, in the first instance, that the charge of criminal misconduct in the discharge of his official duties, is now confined to the fact as disclosed in his bank accounts with the Imperial Bank of India (New Delhi Branch) and the Chartered Bank of India, Australia and China (Chandni Chowk Branch), that his nett credit with those banks totalled upto a figure just over ₹ 91,000. He accounted for that large balance by stating that he was the only son of his father who had been able to give him advanced education in England for a period of over seven years; that after his return to India, he had been holding highly paid posts for about 20 years in the Imperial Chemical Industries, in the Army and in the Government of India; that he had no children and no other dependants except his wife; that with his limited household expenses, he was able to save a good round sum out of his salary and allowances which were considerable, because his duty took him throughout the length and breadth of the country, thus enabling him to earn large sums of money by way of travelling allowances which he saved by staying with his frien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered all the relevant statements made by the accused under s. 342 of the Code of Criminal Procedure and in his written statement, and came to the conclusion that those statements had not been substantiated. We cannot go behind those findings of fact. Reference was also made to cases in which courts had held that if plausible explanation had been offered by an accused person for being in possession of property which was the subject-matter of the charge, the court could exonerate the accused from criminal responsibility for possessing incriminating property. In our opinion, those cases have no bearing upon the charge against the appellant in this case, because the section requires the accused person to satisfactorily account. for the possession of pecuniary resources or property disproportionate to his known sources of income. Ordinarily, an accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen (see illustration (a) to s. 114 of the Indian Evidence Act, 1872). The rule of law is that if there is a prima facie explanation of the accused that he came by the stolen goods in an honest way, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned by -him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant s known sources of income. It may be that the accused may have made statements to the Investigating Officers as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution. In the present case, the prosecution has adduced the best evidence as to the pecuniary resources of the accused person, namely, his bank accounts. They show that during the years 1947 and 1948, he had credit at the banks, amounting to a little over ₹ 91,000. His average salary per mensem, during the relevant period, would be a little over ₹ 1,100. His salary, during the period of the two years, assuming that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on such presumption. Lastly, it was argued that when the section speaks of the burden being on the accused person to prove the contrary, it must mean adducing evidence to disprove the charge. The argument proceeds that as in the present case, the facts and circumstances mentioned in the charge had not been proved, the accused person must be acquitted as having disproved the charge with reference to the particular cases of bribery which had been held not proved. In our opinion, there is a fallacy in this argument. The finding of the High Court and the court below, is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of s. 5(1)(a) of the Act, but the failure to bring the charge home to the accused under s. 5(1)(a), does not necessarily lead to the legal effect contended for. As soon as the requirements of sub-section (3) of s. 5 have been fulfilled,the Court will not only be justified in making, but is called upon to make, the presumption that the accused person is guilty of criminal misconduct within the meaning of s. 5(1)(d). In order to succeed in respect of the charge u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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