TMI Blog1976 (12) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... uch presumption. The sub-section consists of two parts. The first part sets out the facts which if proved give rise to a rebuttable presumption. It requires, in order to the raising of this presumption, that the accused must be shown to be in possession of pecuniary resources or property disproportionate to his known sources of income and he should be unable to satisfactorily account for such pecuniary resources or property. If these facts are shown to exist a presumption would be raised by the court trying the offence that the accused was guilty of criminal misconduct in the discharge of his official duty. This presumption would of course be a rebuttable presumption and it would be open to the accused to establish that despite the disproportion of his pecuniary resources or property to his known sources of income, he is not guilty of criminal misconduct in the discharge of his official duty. The burden of displacing the presumption would be on the accused and if he fails to discharge the burden, he would be liable to be convicted for the offence under Sub-section (2). Both the Special Judge as well as the High Court convicted the appellant with the aid of this presumption though t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived. from father ₹ 2,000.00 ______________ TOTAL ₹ 1,12,515.43 ______________ and we need not, therefore, dwell on the items of income enumerated in these particulars. 4. The appellant, however, sought to add certain other items of income to this list and since these were disputed on behalf of the prosecution, we shall deal with them in seriatim. The first item of income related to profit on sale of gun. The appellant claimed that he had purchased gun No. DEL 1004-49 for. ₹ 600/- and this gun which was held by him under Licence No. 502/1 was sold on 18th on 19th September, 1952 for ₹ 900/- and that resulted in a profit of ₹ 300/- which was liable to be included in determining the total income received by him. The Trial Court did not accept this claim of the appellant on the ground that he had not examined Ram Ratan to whom the gun was sold. Moreover, 30 cartridges had been purchased by him on 7th March, 1953 for a 12-bore gun bearing licence No. 502/1 which showed that he still had his gun No. DBL 1004-49 and he had not sold it on 18th or 19th September, 1952. This conclusion of the Trial Court is patently erroneous since it overlooks the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 5,300/-to the appellant. There was no serious cross-examination of Sachhidanand on this point and there is no reason why this statement of his should not be accepted, particularly when it is supported by a debit entry of ₹ 5,700/-under date 25th September, 1948 in the account of the father of the appellant with the State Bank of India, Lucknow Branch Ex. D-126. The entire evidence in regard to payment of the sum of ₹ 5,300/- by the father of the appellant to him (the appellant) in 1948 for purchase of an Austin car is in favour of the appellant and there is absolutely no evidence on the side of the prosecution which would disprove this claim of the appellant The only circumstance on which reliance was placed by the Trial Court for the purpose of disbelieving the evidence led on behalf of the appellant was that the fatter of the appellant was a man of poor means who had about eleven children and he could not possibly have given the sum of ₹ 5,300/- to the appellant But there is absolutely no evidence to show that the father of the appellant was in poor circumstances. It is true that the father of the appellant was an ordinary cleric and after Ms retirement be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were paid- I had gone to withdraw ₹ 7,000/- from the Post Office Savings Bank, which were given to K. M. Agnihotri. Article M and N are the Savings Bank Pass Books. Article M is in the name of my younger brother Ramanand. This is a Minor Account. In 53 Ramanand's age was about 8-9 years. The account of Article N is in the name of my father. My father used to deposit money in Ramanand's account. On 26-6-1956 ₹ 2,000/- was withdrawn in Article M and the entry is at A to A. ₹ 5,000/- were withdrawn from the Pass Book Article N, its entry is at A to A. After withdrawing these amounts I had handed it over to my father. Afterwards my father had given this money to K. Agnihotri in my presence. Article M, which was the Pass Book in respect of the account in the name of Ramanand, showed a withdrawal of ₹ 2,000/- on 26th June, 1956 and so also Article N, which was the Pass Book in respect of the account of the appellant's father, showed a withdrawal of ₹ 5,000/- on the same day. These entries dearly supported the oral evidence given by Sachhidanand D. W. 31. But the story of the appellant does not rest merely on this oral evidence. The same story ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joined service on 29th November, 1949. We would accordingly add the sums of ₹ 2,000/- and ₹ 600/- to the total income of the appellant and reject his claim for inclusion of the balance. 8. The result of this discussion is that the total income of the appellant during the period 29th November, 1949 to 1st January, 1962 must be taken to be ₹ 1,12,515.43 plus ₹ 300/- plus ₹ 5,300/- plus ₹ 7,000/- plus ₹ 2,000/- plus ₹ 600/- totalling in the aggregate ₹ 1,27,715.43. 9. We must then go on to consider the expenditure which must have been incurred by the appellant during the period 29th November, 1949 to 1st January, 1962. Here also certain items of expenditure were not disputed on behalf of the appellant and they were as follows: Sl. No. Items Admitted amount of expenditure. 1. Income-tax deductions ₹ 1,560.00 2. Provident Fund deductions ₹ 5,690.00 3. Interest and Bank charge ₹ 729.00 4. Children's Education ₹ 8,252.71 5. Club Expenses ₹ 79.78 6. Maintenance of car ₹ 6,919.00 7. Smoking and drinking ₹ 229.35 _______________ Total: ₹ 23,459.84 _______________ But there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the prosecution, during the period in question an aggregate sum of ₹ 8,660/- was paid by the appellant as and by way of house rent. The appellant did not dispute the quantum of the amount of house rent for the period in question, but he contended that during the time from 1st June, 1953 to 31st July, 1957 when he was at Satna, the house rent was paid by his maternal aunt who was staying with him and, therefore, an aggregate sum of ₹ 2,500/- being the house rent for the period of Satna stay should be deducted in computing his expenditure on this account. There is great force in this submission of the appellant. There is, apart from the statement of the appellant himself on oath, the evidence of Vishnu Narain D. W. 32 who was Mukhtiar Aam of the aunt, which clearly shows that the aunt was living with the appellant during the period when he was at Satna and she was meeting the household expenses of the appellant. The High Court also accepted this claim of the appellant and it must, therefore, follow that the sum of ₹ 2,500/- representing the house rent of the appellant during his stay in Satna was expended by the aunt and it must be deducted from the sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held by the High Court that a sum of ₹ 400/- was expended by the appellant on account of legal expenses. This amount must, therefore, be excluded in computing the expenditure incurred by the appellant. 14. The next item of expenditure claimed by the prosecution was a sum of ₹ 3,350/- representing losses suffered by the appellant in the sales of cars. The claim of the prosecution was that the appellant purchased an Austin car in 1948 for ₹ 5,300/- and sold it in 1954 for ₹ 2,500/-, thus incurring a loss of ₹ 2,800/- and thereafter he purchased a Rat car for ₹ 9,200/- in 1956 and sold it in 1959 for ₹ 8650/- at a loss of ₹ 550/- and thus he incurred a total loss of ₹ 3,350/- in the sales of these two cars which was liable to be deducted from his total income for determining the proportion of income with the assets. Now it was common ground that the appellant did suffer a loss of ₹ 2,800/- in the sale of the Austin car and a loss of ₹ 550/- in the sale of the Fiat car. The appellant got a sum of ₹ 5,300/- from his father for the purchase of the Austin car and when the Austin car was sold for ₹ 2,500/- h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther items which went to make up the balance. The first item challenged on behalf of the appellant was ₹ 486/- which was made up of three sums of ₹ 210/-, ₹ 116/- ₹ 160/- paid to Sheela Devi. The explanation of the appellant in his evidence was that these three amounts had been paid by him to Sheela Devi in repayment of small loans taken from her. It is no doubt true that there is no documentary evidence to support this story of small -loans having been taken by the appellant from Sheela Devi but in the absence of any positive evidence on the side of the prosecution -which would disprove the claim of the appellant, we do not see any reason to disbelieve the evidence of the appellant on this point. Moreover, if this explanation were not to be accepted, we fail to see any other reason why such small amounts should have been paid by the appellant to Sheela Devi by cheques out of his banking account We may, therefore safely accept the explanation offered by the appellant and exclude the sum of ₹ 486/- from the expenditure of the appellant under this head. The next item of ₹ 500/- represented monies paid by the appellant to his father Babu Ram. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem of expenditure, they could not be deducted twice over again as part of his expenditure. This argument of the appellant may bo quite valid with regard to the sum of ₹ 200/-, because according to the estimate made by Shri Roberts, monthly expenditure of the appellant might be taken to be ₹ 163/- and, therefore, it is quite possible that ₹ 200/- might have been withdrawn by the appellant from his bank account for meeting the household expenses. But this argument does not appear to be valid so far as the sum of ₹ 900/- is concerned, because it is difficult to believe that the appellant should have withdrawn a sum of ₹ 900/- from his bank account for household expenses when the household expenses did not exceed ₹ 163/- per month. We would, therefore, reject the contention of the appellant with regard to the sum of ₹ 900/- and add that as part of his expenditure. The result is that under the head Miscellaneous payments through Cheques an aggregate sum of ₹ 4,572/- must be treated as expenditure incurred by the appellant. 16. Then we come to two other items. of expenditure, namely, ₹ 856/- on holiday trips and ₹ 550/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 2,880/- cannot be taken into account twice over. This means that a sum of ₹ 4620/- would be deductible on account of expenditure on clothing. 19. The last item of expenditure was in connection with the marriage of the sister of the appellant and under this head, the prosecution claimed that the appellant had incurred an expenditure of ₹ 7,895.75. but there is absolutely no evidence to establish that the appellant had incurred any expenditure in connection with the marriage of his sister. The only circumstance on which reliance was placed on behalf of the prosecution in this connection was that a note book containing an account of the marriage expenses was found from the residence of the appellant when a search of his premises was carried out in 1962. But that by itself cannot possibly lead to an inference that the expenditure shown in the account must have been incurred by the appellant. The appellant stated in his evidence that he did not incur any expenditure on account of the marriage of his sister and that the entire expenditure was incurred by his father and the father also in his statement Ex. D-104 stated that the expenditure in connection with the marriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OTAL ₹ 38.572.46 ______________ Besides these assets which admittedly belonged to the appellant, there were also certain other assets claimed by the prosecution to belong to the appellant and this claim of the prosecution we shall now proceed to consider. 22. The first item of assets which must be considered by us relates to an amount of ₹ 1,000/- in the joint account of the appellant and his second wife Shanti Devi with the Allahabad Bank, Nagpur. There was a credit balance of ₹ 1,194/- in this joint account as on 1st January, 1962 and out of this amount, a sum of ₹ 194/- admittedly belonged to the appellant. So far as the balance of ₹ 1,000/- was concerned, the case of the appellant was that it belonged to Shanti Devi. The appellant stated in his evidence that on 21st May, 1958 Shanti Devi disposed of some gold Bangles and silver ornaments which she used to put on whilst she was a widow and she obtained a sum of ₹ 1,051.10 as as sale proceeds of these ornaments out of which she deposited a sum of ₹ 1,000/- in this joint account. This story of the appellant did not rest merely on his oral testimony but it was also supported by the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cash amount of ₹ 9.000/- alleged to be lying with Shanti Devi was not included as one of the assets of the appellant in the sanction dated 26th August, 1963 granted by the Commissioner of Income-tax. Nagpur for prosecution of the appellant. It was not even suggested to the appellant in his examination under Section 342 that these was a cash amount of ₹ 9,000/- lying with Shanti Devi which formed part of his assets and no opportunity was afforded to him to give his explanation in regard to this item. Moreover, this cash amount of ₹ 9,000/- was not found in the possession of the appellant nor was it found in the possession of Shanti Devi and it is difficult to see how and on the basis of what evidence it could be said that the assets of the appellant included a cash amount of ₹ 9,000/-. In fact, what happened was - and that is clear from the evidence of Vishwanath Avasthi D. W. 16, Narain Sevak Tiwari D. W. 17, Vikram Dutt Tripathi D. W. 19, Rama Kant Tripathi D. W. 21 and Ramadhar Avasthi D. W. 22-that an aggregate sum of ₹ 9,000/- collected from these various persons was given to Shanti Devi as a dowry at the time of her re-marriage with the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to Shanti Devi during her illness cash amounting to ₹ 2,500/-, ornaments and some gold. Subsequently, Shanti Devi sold these ornaments and gold along with soma of her own ornaments and got am aggregate sum of ₹ 5,500/- which she invested in the hosiery factory of the father of her first husband, namely, Ramadhar Avasthi on interest at the rate of 12 per cent, per annum. This amount together with interest was gradually returned by Ramadhar Avasthi to Shanti Devi and as and when the monies were returned, they were deposited by Shanti Devi in a Savings Bank account opened with Allahabad Bank, Varanasi. Since the interest in the Savings Bank account was small, Shanti Devi, under the advice of Ramadhin Avasthi D. W. 90, the uncle of her first husband, deposited the monies in fixed deposit with the Allahabad Bank, Varanasi and these accumulated to ₹ 11,180/- as on 1st January, 1962. This case of the appellant was supported by the evidence of Ramadhar Avasthi D. W. 22 and Ramadhin Avasthi D. W. 90. Vishwanath Avathi D. W. 16 also corroborated the testimony of these two witnesses on the point. It is difficult to see how in the face of this overwhelming evidence it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant but the evidence on record clearly established that from 1950 to 1953 Sheela Devi was teaching in the Arya Kanya Inter College, Mirzapur and she was also giving tuitions and in addition, carrying on insurance agency business and she had, therefore, the necessary means to make the fixed deposit of ₹ 2,000/-. It is, in the circumstances, not possible to hold that the fixed deposit of ₹ 2,000/- in the name of Sheela Devi was an asset belonging to the appellant. 28. The next item of assets to which we must refer is the sum of ₹ 10.000/- lying in deposit in the name of Sheela Devi with Sharda Co. So far as this sum of ₹ 10,000/- is concerned, the claim of the appellant was that it represented an amount received by Sheela Devi from her father at the time of her marriage in 1945. The appellant's case was that out of the monies received by Sheela Devi from her father at the time of her marriage she deposited a sum of ₹ 10,000/- with one Adiya Dutt Thakur in 1946 and this amount was returned to her by Adiya Dutt Thakur in 1958 by means of a cheque and this very cheque was deposited by her with Sharda Co. and hence this amount belonged to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said to have established that the sum of ₹ 6,688/- standing to the credit of this bank account belonged to the appellant. And on the same reasoning we must hold that the National Savings Certificates for ₹ 65/- standing in the name of Sheela Devi also could not be said to be an asset belonging to the appellant, since there was no legal evidence led on behalf of the prosecution which would establish definitely that the consideration for the purchase of these National Savings Certificates was provided by the appellant. 30. That leaves, from amongst the major items, two sums of ₹ 14,000/- and ₹ 3,980/- claimed by the prosecution to have been deposited by the appellant with M/s. Shridhar Gopal Co. in the name of Sheela Devi. Now, so far as the sum of ₹ 14,000/- lying deposited with M/s. Shridhar Gopal 6c Co. is concerned, it was at one time seriously contended on behalf of the appellant that this amount was deposited by Sheela Devi with M/s. Shridhar Gopal Co. by taking a loan from the appellant and the appellant in his turn had borrowed an identical amount by taking an overdraft from the Allahabad Bank, Akola and, therefore, if the sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t January, 1962. 31. Then, we come to the last two items, namely, radio and furniture of the value of ₹ 965/- and typewriter, camera, Godrej almirah and electric shaver etc. of the value of ₹ 1,798/-. These articles were found in the course of the house search made on 29th September, 1962 and barring the radio which the appellant admitted to be his own asset none of the other articles were admitted by him to be his property. The appellant stated on oath that the camera was presented to Shanti Devi by her brother Dr. Mohan Lal Tiwari when he returned to India from Vienna and the electric shaver was given to him as a gift by his friend Dr. Ramesh of Allahabad. The typewriter and the Godrej Almirah, according to the evidence of the appellant, belonged to S. P. Khare in whose house he was temporarily living at the time of the search. There is no evidence led on behalf of the prosecution to show that, barring the radio, any of these other articles were purchased by the appellant, and in the absence of such evidence, the statement made by the appellant on oath has to be accepted. We accordingly add to the assets of the appellant ₹ 565/- in respect of the radio and &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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