TMI Blog1963 (8) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... 1952, the General Manager, Bhakra Dam, made a complaint in writing to the Superintendent of Police, Hoshiarpur, alleging that Sajjan Singh and some other officials subordinate to him had by illegal and corrupt means and by abusing their position as public servants, dishonestly and fraudulently, obtained illegal gratification from the contractors Ramdas Chhankanda Ram and M/s. Ram Das Jagdish Ram by withholding their payments and putting various obstacles in the smooth execution of the work entrusted to them. A case under s. 45(2) of the Prevention of Corruption Act, 1947 was registered on the basis of this complaint, which was treated as a first information report and after sanction of the Government of Punjab had been obtained for the prosecution of Sajjan Singh under s. 5(2) of the Prevention of Corruption Act and s. 161/165 of the Indian Penal Code, Sajjan Singh was tried by the Special Judge, Ambala, on a charge under s. 5(2) of the Act. The learned Special judge convicted him under s. 5(2) of the Prevention of Corruption Act and sentenced him to rigorous imprisonment for one year and a fine of ₹ 5000/in default of payment of fine, he was directed to undergo rigorous i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant's known sources of income. The learned Special judge mentioned the possession of pecuniary resources and property disproportionate to his known sources of income in the charge framed against the accused. According to the prosecution the total assets held by the appellant, and his wife, Dava Kaur, and his son Bhupinder Singh on his behalf, on December 7, 1952 amounted to ₹ 1,47,502/12/-, while his total emoulments upto the period of the charge would come to about ₹ 80,000/-. The main defence of the appellant as regards this allegation of possession of pecuniary resources and property disproportionate to his known sources of income was that the property and pecuniary resources held by his wife and son were not held on his behalf and that what, was in his possession amounted to less than ₹ 50,000/- and can by no means be said to be disproportionate to his known sources of income. In denying the charge against him the appellant also contended that false evidence had been given by the three partners and false and fictitious books prepared by them in support of their own false testimony. The learned Special judge rejected the defence contention that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Bhupinder Singh were possessed by them on behalf of the appellant and that those possessed by him, or by his wife and son on his behalf were much in excess of his known sources of income, even without making any allowance for his house-hold expenses. Mr. justice Capoor further held that if the pecuniary resources or property acquired during the period April 1, 1947 to June 1, 1950 as suggested on behalf of the appellant were considered such assets held by the appellant or any other person on his behalf were more than double of the known sources of his income without making any allowance whatever for the appellant's house-hold expenses. In the opinion of the learned judge a presumption under subsection 3 of s. 5 of the Act therefore arose that the appellant had committed the offence, as the appellant had not been able to prove to the contrary. Both the learned judges agreed that the witnesses who gave direct evidence about the payment of illegal gratification could not be relied upon without independent corroboration and that the entries in the books of account did by themselves amount to such corroboration, but that the fact of admitted and proved items being interspersed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disproportionate to his known sources of income and that the accused person cannot satisfactorily account for such possession. If these facts are proved the section makes it obligatory on the Court to presume that the accused person is guilty of criminal misconduct in the discharge of his official duty, unless the contrary, i.e., that he was not so guilty is proved by the accused. The section goes on to say that the conviction for an offence of criminal misconduct shall not be invalid by reason only that it is based solely on such presumption. This is a deliberate departure from the ordinary principle of criminal jurisprudence, under which the burden of proving the guilt of the accused in criminal proceedings lies all the way on the prosecution. Under the provision of this subsection the burden on the prosecution to prove the guilt of the accused must be held to be discharged if certain facts as mentioned therein arc proved; and then the burden shifts to the accused and the accused has to prove that in spite of the assets being disproportionate to his known sources of income, he is not guilty of the offence. There can be no doubt that the language of such a special provision mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of acquisition. If this argument were correct a conviction of a person under the presumption raised under the s. 5(3) in respect of pecuniary resources or property acquired before the Prevention of Corruption Act would be a breach of fundamental rights under Art. 20(l) of the Constitution and so it would be proper for the Court to construe s. 5(3) in a way so as not to include possession of pecuniary resources or property acquired before the Act for the purpose of that subsection. The basis of the argument that s. 5(3) creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however unsound. The sub-section does nothing of the kind. It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in s. 5(1) for which an accused person is already under trial. It was so held by this Court in C.D.S. Swamy v. The State [1960] 1 S.C.R. 461 and again in Surajpal Singh v. State of U.P. [1961] 1 2 S.C.R. 971. It is only when a trial has commenced for criminal misconduct by doing one or more of the acts mentioned in cls. a, b, c and d of s. 5(l) that sub-s 3 can come into operation. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income including, it may be, these very items of property in the past could yield such income as to explain reasonably the emergence of these assets at this point of time. Lastly it was contented by Mr. Lall that no presumption under s. 5(3) can arise if the prosecution has adduced other evidence in support of its case. According to the learned Counsel, s. 5(3) is at the most an alternative mode of establishing the guilt of the accused which can be availed of only if the usual method of proving his guilt by direct and circumstantial evidence is not used. For this astonishing proposition we can find no support either in principle or authority. Mr. Lall sought assistance for his arguments from a decision of the Supreme Court of the United States of America in D. Del Vecchio v. Botvers296 U.S. 280 : 80 L. ed. 229. What fell to be considered in that case was whether a presumption created by s. 20(d) of the Longshoremen's and Harbor Workers' Compensation Act that the death of an employee was not suicidal arose where evidence had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Prevention Corruption Act also merely takes the place of evidence. So, he says, it can arise only if no evidence has been adduced. We are not prepared to agree however that when the Lord Justice used the words a presumption takes the place of evidence he meant that if some evidence had been offered by the prosecution the prosecution could not benefit by the presumption. We see no warrant for the proposition that where the law provides that in certain circumstances a presumption shall be made against the accused the prosecution is barred from adducing evidence in support of its case if it wants to rely on the presumption. Turning now to the question whether the facts and circumstances proved in this case raise a presumption under s. 5(3), we have to examine first whether certain pecuniary resources or property in possession of Daya Kaur and those in possession of Bhupinder Singh were possessed by them on behalf of the appellant as alleged by the prosecution. On December 7, 1952, Bhupinder Singh has been proved to have been in possession of: (1) ₹ 28,998/7/3/- in the Punjab National Bank; (2) ₹ 20,000/- in fixed deposit with the Bank of Patiala at Doraha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh on behalf of his father. In any case, therefore, this amount of ₹ 20,200/- was Sajjan Singh's money. As regards the other amount of ₹ 6000/- which formed part of the deposits in the Punjab National Bank and a further sum of ₹ 20,000/in fixed deposit with the Bank of Patiala the defence case as sought to be proved by Bhupinder Singh was that these were received by him from his grand-father Chanda Singh. The learned Special judge disbelieved the story and on a consideration of the reasons given by him we are of opinion that his conclusion is correct. When it is remembered that Bhupinder Singh was at the relevant dates a student with no independent income or property of his own the reasonable conclusion from the rejection of his story about these amount is, as held by the Special Judge, that these were possessed by him on behalf of his father, Sajjan Singh. We are also convinced that the Special Judge was right in his conclusion that ₹ 5,577/- in the Imperial Bank of India at Moga, ₹ 237/8/3 in the Savings Bank Account in the Bank of Patiala at Doraha and the half share in a plot of land in Ludhiana of the value of ₹ 11,000/- standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the period of his service as S.D.O. It was urged however that ₹ 100/- a year, is travelling allowance is too low an estimate for his services as Overseer. As the relevant papers are not available it would be proper to make a liberal estimate under this head favourable to the appellant. Even at the most liberal estimate it appears to us that the total receipts as travelling allowance as Overseer could not have exceeded ₹ 5,000/-. One cannot also forget that much of what is received as travelling allowance has to be spent by the officer concerned in travelling expenses itself. For many officers it 'IS not unlikely that travelling allowance would fall short of these expenses and they would have to meet the deficit from their own pocket. The total receipt that accrued to the appellant as the savings out of travelling allowance inclusive of horse allowance and conveyance allowance, could not reasonably be held to have exceeded ₹ 10,000/at the most. Adding these to what he received as salary and also as Nangal Compensatory allowance the total income received during the years would be about ₹ 93,000/-. It also appears that income by way of interest was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless the contrary is proved by him. Mr. Lall has submitted that if the other evidence on which the prosecution relied to prove its case against the appellant is examined by us, he will be able to satisfy us that evidence is wholly insufficient to prove the guilt of the accused. It has to be remembered however that the fact-assuming it to be a fact in this case- that the prosecution has failed to prove by other evidence the guilt of the accused, does not entitle the Court to say that the accused has succeeded in proving that he did not commit the offence. Our attention was drawn in this connection to this Court's decision in Surajpal Singh's Case [1961] 2 S.C.R. 971 where this Court set aside the conviction of the appellant Surajpal Singh on the basis of the presumption under s. 5(3). What happened in that case was that though the accused had been charged with having committed the offence of criminal misconduct in the discharge of his duty by doing the acts mentioned in cl. (c) of sub-s. 1 of s. 5, the Special Judge and the High Court convicted him by invoking the rule of presumption laid down in sub-s. 3 of s. 5, of an offence under cl. (d) of s. 5(l). This Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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