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PETITIONER: SAJJAN SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 28/08/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS DAS, S.K. HIDAYATULLAH, M.

CITATION:  1964 AIR  464            1964 SCR  (4) 630  CITATOR INFO :  RF         1977 SC2091  (5)  RF         1979 SC 602  (6)  R          1981 SC1186  (11)

ACT: Corruption-Criminal  misconduct  in  discharge  of  official duty Conviction based on presumption-Validity-Prevention  of Corruption Act, 1947, (2 of 1947), s. 5(3).

HEADNOTE: The  appellant was an overseer and then became  a  Sub-Divi- sional  Officer in the Irrigation Department.  On the  basis of a complaint, a case was registered against him and  after sanction  by  the  Government  had  been  obtained  for  his prosecution  under s. 5(2) of the Prevention  of  Corruption Act and s. 161/165 of the Indian Penal Code he was tried  by the special judge on a charge under s. 5(2) of the Act.  The allegation   made  was  that  the  appellant  demanded   his commission  from  the contractors on the cheques  issued  to them and on are Used he started with-holding their  payments and  putting obstacles in the smooth execution of  the  work entrusted  to them.  The commission was then paid from  time to  time and the payments were fully entered in the  regular Rokar  and  Khata  Bhais.   The  trial  court  accepted  the prosecution   case  and  found  that  the  total   pecuniary resources  and property in appellant’s possession or in  the possession of his wife and son were disproportionate to  his known  sources  of income and that such possession  had  not been  satisfactorily accounted for.  On these  findings  the presumption  under s. 5(3) of the Prevention  of  Corruption Act was raised and the appellant was convicted and sentenced to  rigorous  imprisonment for one year and a  fine  of  Rs. 5,000/-  in default, rigorous imprisonment for  six  months. On appeal, the conviction and sentence were confirmed by the High  Court.   The  two learned judges of  the  High  Court, however,   differed  on  the  question   whether   pecuniary resources  and  property acquired before the  Prevention  of Corruption  Act  came  into  force,  could  be  taken   into consideration for the purpose of s. 5(3) of the Act. Held,   that  to  take  into  consideration  the   pecuniary resources  or property in the possession of the  accused  or

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any  other person on his behalf which were  acquired  before the  date  of  the  Act, was in no  way  giving  the  Act  a retrospective operation. Maxwell on Interpretation of statutes, 11th Edition, P.  210 and  State of Bomaby v. Vishnu Ramchandra, [1961]  2  S.C.R. 26, relied on. Sub-section 3 of s. 5 does not create a new kind of offence. It  merely prescribes a rule of evidence for the purpose  of proving the offence of criminal misconduct as defined in  s. 5(l) for which an accused person is already under trial. C.S.D. Swamy v. The State, [196 of 1 S.C.R. 461 and Surajpal Singh v. State of U.P. [1961] 2 S.C.R. 971, relied on. 631 On  proper  construction  of the words of  the  section  and giving  them their plain and natural meaning, it  is  clear, that  the pecuinary resources and property in possession  of the accused person or any other person on his behalf have to be  taken  into consideration for the purpose  of  s.  5(3), whether  these  were acquired before or after the  Act  came into force. While it is quite true that pecuniary resources and property are themselves sources of income, that does not present  any difficulty in understanding a position that at a  particular point 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. There  is 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. D.   Del Vecchio v. Bowers, 296 U.S. 280; 80 L. ed. 229  and Bratty  v. Attorney General for Northern Ireland,  [1961]  3 All E.R. 523, held inapplicable. The  facts proved in this case raise a presumption under  s. 5(3)  of  the  Act and the appellant’s  conviction  must  be maintained on the basis of that presumption.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 98  of 1960. Appeal  by special leave from the judgment and  order  dated January 20, 1960 of the Punjab High Court in Criminal Appeal No. 683 of 1957. I.   M. Lall and B. N. Kirpal, for the appellant. B.   K. Khanna and R. N. Sachthey, for the respondent. August 28, 1963.  The Judgment of the Court was delivered by DAS  GUPTA J.-Sajjan Singh, son of Chanda Singh, joined  the service  of  the  Punjab Government in January  1922  as  an Overseer  in  the Irrigation Department.   He  continued  as Overseer  till  July 1944 when he  became  a  Sub-divisional Officer  in the Department.  From the date till May 1947  he worked  as  Sub-Divisional Officer in that  part  of  Punjab which has now gone to West Pakistan.  From November 30, 1947 to  September  26, 1962 he was  employed  as  Sub-Divisional Officer of Drauli Sub-Division of the Nangal Circle,  except for  a short break from November 8, 1950 to April  3,  1951, when he was on leave.  The work of excavation-for the Nangal Project

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632 within  the Drauli Sub-Division was carried out  by  several contractors,  including  Ramdas  Chhankanda  Ram  and   M/s. Ramdas  Jagdish  Ram.   On December  7,  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 Rs. 5000/in  default of  payment  of fine, he was directed  to  undergo  rigorous imprisonment  for six months.  The conviction  and  sentence were  confirmed  by the Punjab High Court, on  appeal.   The High  Court  however rejected the  State’s  application  for enhancement  of  the  sentence.  The present  appeal  is  by Sajjan  Singh against his conviction and sentence  under  s. 5(2) of the Prevention of Corruption Act by special leave of this Court. The prosecution case is that after work had been done by the firm  Ramdas  Chhankandas  for  several  months,  and   some ’running’ payments had been received without difficulty, the appellant demanded from Ram Das, one of the partners of  the firm,   his  commission  on  the  cheques  issued   to   the partenrship firm.  It is said that Ram Das at first refused. But,  ultimately  when  the  appellant  started  unnecessary criticism of the work done by them and even withholding some running  payments  the partners of the firm decided  to  pay commission to him as demanded.  The 633 first  payment, it is said, was made on March 21,  1949  and further  payments  were thereafter made from time  to  time. The  case is that the partnership paid altogether a  sum  of Rs. 10,500/- in cash as commission to the appellant, besides paying  Rs.  2,000/-  to him for payment  to  the  Executive Engineer  and  Rs. 241/12/- made up of small  sums  paid  on different  occasions  on behalf of the accused.   All  these payments  made  to the appellant were fully entered  in  the regular  Rokar  and Khata Bhais of the partnership  under  a fictitious name of Jhalu Singh, Jamadar, though a few of the later payments were entered in these books in Sajjan Singh’s own  name.   In  order to allay  suspicion  some  fictitious credit entries were also made in the books.  The prosecution also  alleged  payment to the appellant of  Rs.  1,800/-  by another firm M/s.  Ram Das Jagdish Ram.  But as that has not been found to be proved it is unnccessary to mention details of the allegations in that connection. To  prove  its case against the  appellant  the  prosecution relied  on the testimony of three partners of the  firm  who claimed to have made payments and on various entries in  the several books of account of the firm.  The prosecution  also tried to prove the guilt of the accused by showing that  the

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pecuniary  resources  and  property that  were  in  the  ap- pellant’s possession or in the possession of his wife,  Dava Kaur,  and  his son, Bhupinder Singh, on his behalf  we  are disproportionate to the 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  Rs. 1,47,502/12/-, while his total emoulments  upto  the period of the charge would come to about Rs. 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 Rs. 50,000/- and can by  no means be said to be disproportionate to his known 41--2 S. C. India/64. 634 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 account books on which the prosecution relied  had not  been kept regularly in the course of business and  held the entries therein to be relevant under s. 34 of the Indian Evidence  Act.   He  accepted the  defence  contention  that evidence  of  the  partners  who were  in  the  position  of accomplices required independent corroboration and also that the account books maintained by themselves would not  amount to independent corroboration.  Independent corroboration was however in the opinion of the learned Judge furnished by the fact  that  some admitted and proved items of  payment  were interspersed in the entire account books.  The learned judge also   accepted  the  prosecution  story  as   regards   the possession  of  pecuniary  resources  and  property  by  the appellant’s wife and his son on his behalf and adding  these to what was in the appellant’s own possession he found  that the total pecuniary resources and property in his possession or   in   the   possession  of  his  wife   and   son   were disproportionate  to his known sources of income,  and  that such  possession had not been satisfactorily accounted  for. He  concluded  that  the presumption under s.  5(3)  of  the Prevention  of Corruption Act was attracted.  On  all  these findings  he  found the appellant guilty of the  charge  for criminal  misconduct  in  the discharge of  his  duties  and convicted and sentenced him as, stated above. The  two learned judges of the Punjab High Court  who  heard the  appeal  differed  on  the  question  whether  pecuniary resources and property acquired before- March 11, 1947, when the  Prevention of Corruption Act came into force, could  be taken into consideration for the purpose of s. 5 (3) of  the Act.   In  the opinion of Mr. Justice  Harbans  Singh  these could  not  be  taken  into  consideration-.   Taking   into consideration  the  assets acquired by the  appellant  after January 1948 the learned judges held that these came to just above   Rs.   20,000/-  and  could  not  be   held   to   be disproportionate to his known sources of income.  The  other learned Judge, Mr. Justice 635 Capoor, was of opinion that pecuniary resources and property acquired  prior to March 11, 1947 had also to be taken  into

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consideration  in  applying s. 5 (3) of  the  Prevention  of Corruption Act if they were in the possession of the accused or anybody on his behalf, on the date when the complaint was lodged.   He  agreed  with the Special  judge  that  certain assets  possessed  by  Daya Kaur and  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 the entire account furnished  the  required corroboration.   In the result, as has been already  stated, the learned judges affirmed the conviction and sentence. In  support  of the appeal Mr. 1. M. Lall has  attacked  the finding that the books of account were kept regularly in the course  of  business  and has  contended  that  the  entries therein were not relevant under s. 34 of the Indian Evidence Act.   He  further contended that even if they  be  relevant evidence  the  Special judge as also the  High  Court  while rightly  thinking that they by themselves did not amount  to independent  corroboration, were in error when they  thought that the fact of certain admitted entries being interspersed through the books of account furnished the 636 necessary  independent  corroboration.  Mr.  Lall  has  also argued that the Special Judge as well as Mr. justice  Capoor in the High Court were wrong in drawing a presumption  under s. 5(3) of the Prevention of Corruption Act. We shall first consider the question whether on the evidence on the record a presumption under s. 5(3) of the  Prevention of Corruption Act arose.  It is useful to remember that  the first  sub-section of s. 5 of the Prevention  of  Corruption Act mentions in the four clauses a, b, c and d, the acts  on the  commission  of which a public servant is said  to  have committed an offence of criminal misconduct in the discharge of his duties.  The second subsection prescribes the penalty for that offence.  The third subsection is in these words:-               "In  any trial of an offence punishable  under               sub-section  (2)  the fact  that  the  accused               person or any other person on his behalf is in               possession,  for  which  the  accused   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 is               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

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             presumption." This sub-section thus provides an additional mode of proving an  offence punishable under sub-s. 2 for which any  accused person  is being tried.  This additional mode is by  proving the  extent  of the pecuniary resources or property  in  the possession of the accused or any other person on his  behalf and thereafter showing that this is 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. 637 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  must  be  strictly construed. if  the  words  are capable   of  two  constructions,  one  of  which  is   more favorable  to the accused than the other, the Court will  be justified  in accepting the one which is more favourable  to the  accused.   There can be no  Justification  however  for adding any words to make the provision of law less stringent than the legislature has made it. Mr.  Lall  contends  that when the  section  speaks  of  the accused  being in possession of pecuniary resources or  pro- perty  disproportionate to his known sources of income  only pecuniary  resources or property acquired after the date  of the  Act  is meant.  To think otherwise,  says  the  learned Counsel,  would be to give the Act  retrospective  operation and for this there is no ’Justification.  We agree with  the learned Counsel that the Act has no retrospective operation. We   are  unable  to  agree  however  that  to   take   into consideration  the  pecuniary resources or property  in  the possession of the accused or any other person on his  behalf which are acquired before the date of the Act is in any  way giving the Act a retrospective operation. A statute cannot be said to be retrospective "because a part of  the  requisites  for its action is  drawn  from  a  time antecedent  to its passing". (Maxwell on  interpretation  of Statutes,   11th  Edition,  p.  211;  See  also   State   of Maharashtra v. Vishnu Ramchandra(l)).  Notice must be  taken in  this  connection  of a suggestion made  by  the  learned Counsel that in effect sub-section 3 of section 5 creates  a new  offence  in the discharge of official  duty,  different from what is defined in the four clauses of s. 5(l).  It  is said  that  the  act of being  in  possession  of  pecuniary resources or pro- (1)  [1961] 2 S.C.R. 26. 638 perty  disproportionate  to known sources of income,  if  it cannot be satisfactorily accounted for, is said by this sub- section to constitute the offence of criminal misconduct  in addition to those other acts mentioned in cls. a, b, c and d

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of  s.  5(l) which constitute the offence of  criminal  mis- conduct.  On the basis of this contention the further  argu- ment  is built that if the pecuniary resources  or  property acquired  before  the date of the Act is taken  into  consi- deration  under sub-section 3 what is in fact being done  is that  a  person is being convicted for  the  acquisition  of pecuniary  resources or property, though it was not in  vio- lation  of a law in force at the time of the  commission  of such  act 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(1) and again in Surajpal Singh  v. State of U.p.(2). 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 there is such  a  trial,  which necessarily  must be in respect of acts committed after  the Prevention of Corruption Act came into force, sub-section  3 places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged. Looking  at the words of the section and giving  them  their plain and natural meaning we find it impossible to say  that pecuniary resources and property acquired before (1) [1960] 1 S.C.R. 461.   (2) [1961] 1 2 S.C.R. 971. 639 the date on which the Prevention of Corruption Act came into force should not be taken into account even if in possession of the accused or any other person on his behalf.  To accept the  contention  that such pecuniary resources  or  property should not be taken into consideration one has to read  into the section the additional words "if acquired after the date of  this Act" after the word "property".  For this there  is no justification. It  may  also be mentioned that if  pecuniary  resources  or property acquired before the date of commencement of the Act were  to be left out of account in applying subs. 3 of s.  5 it  would be proper and reasonable to limit the  receipt  of income against which the proportion is to be considered also to  the period after the Act.  On the face of it this  would lead  to  a  curious  and anomalous  position  by  no  means satisfactory  or helpful to the accused himself.   For,  the income   received   during  the  years   previous   to   the commencement  of the Act may have helped in the  acquisition of  property  after  the  commencement  of  the  Act.   From whatever  point we look at the matter it seems to  us  clear that the pecuniary resources and property in the  possession of the accused person or any other person on his behalf have to  be  taken  into consideration for the  purpose  of  sub- section  3 of section 5, whether these were acquired  before or after the Act came into force. Mention  has  next  to  be made  of  the  learned  Counsel’s submission  that the section is meaningless.   According  to

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the learned Counsel, every pecuniary resource or property is itself  a source of income and therefore it is a  contradic- tion  in terms to say that the pecuniary resources  or  pro- perty  can  be  disproportionate to  the  known  sources  of income.  This argument is wholly misconceived.  While it  is quite  true  that  pecuniary  resources  and  property   are themselves  sources  of  income that does  not  present  any difficulty in understanding a position that at a  particular point 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 presump- 640 tion 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. Botvers(1).  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  been adduced by both sides  on  the  question whether the death was suicidal or not.  The Court of  Appeal had  held that as the evidence on the issue of  accident  or suicide was in its judgment evenly balanced the  presumption under s. 20 must tip the scales in favour of accident.  This decision  was reversed by the learned Judges of the  Supreme Court.   Section 20 which provided for the  presumption  ran thus:--               "In  any proceedings for the enforcement of  a               claim  for  compensation......  it  shall   be               presumed,   in  the  absence  of   substantial               evidence  to contrary-that the injury was  not               occasioned  by  the wailful intention  of  the               injured employee to injure or kill himself  or               another." On  the  very words of the section the  presumption  against suicide  would  arise only if substantial evidence  had  not been  adduced to support the theory of suicide.  It  was  in view of these words that the learned judges observed:-- .lm15    "The  statement in the act that the evidence to  overcome the  effect  of  the presumption must  be  substantial  adds nothing to the well understood principle that a finding must be supported by evidence.  Once the employer has carried his burden by offering testimony sufficient to justify a finding of suicide, the presumption falls out of the case.  It never had  and  cannot acquire the attribute of  evidence  in  the claimant’s favour.  Its only office is to control the result where (1)296 U.S. 280 : 80 L. ed. 229. 641 there  is  an  entire lack of competent  evidence.   If  the employer  alone adduces evidence which tends to support  the theory  of  suicide,  the case must  be  decided  upon  that evidence.  Where the claimant offers substantial evidence in

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opposition, as was the case here, the issue must be resolved upon the whole body of proof pro and con." The  whole decision turns upon the words ’in the absence  of substantial   evidence".    These  or  similar   words   are conspicuous  by  their absence in sub-s. 3 of s.  5  of  the Prevention  of  Corruption Act, and consequently,  Del  Vec- chio’s Case(1) is of no assistance. Mr.  Lall then drew our attention to an observation of  Lord Denning   in  Bratty  v.  Attorney  General   for   Northern Ireland(2)  where speaking about the presumption that  every man has sufficient mental capacity to be responsible for his crimes, the Lord Justice observed that the presumption takes the  place  of evidence.  Similarly, argues  Mr.  Lall,  the presumption  under s. 5(3) of 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  pro- secution 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) Rs. 28,998/7/3/- in  the  Punjab National  Bank; (2) Rs. 20,000/- in fixed deposit  with  the Bank of Patiala at Doraha (3) Rs. 5,577/- (1)226 U.S. 280.    (2)  [1961] 3 All.  E.R. p. 523 at 535. 642 in  the Imperial Bank of India at Moga; (4)  Rs.  237/8/3/in the  Savings Bank Account in the Bank of Patiala at  Doraha; and  (5)  Half share in a plot of land in  Ludhiana  of  the value Rs. 11,000/-. Bhupinder Singh has given evidence (as the 11th witness  for the defence) and has tried to support his father’s case that none  of  the properties were held by him on behalf  of  his father.  Bhupinder Singh has been in military service  since 1949 and was at the time when he gave evidence a Captain  in the  Indian Army.  If the bank deposits mentioned above  had been  made  by him after he joined  military  service  there might  have been strong reason for thinking that  they  were his  own money.  That however is not the position.   Out  of the sum of Rs. 28,998/- with the Punjab National Bank a part is  admittedly  interest;  the remainder,  viz.,  about  Rs. 26,000/-  was  deposited by Bhupinder Singh in  his  account long  before  1949  when he joined  military  service.   His explanation as to how he got this money is that Rs. 20,200/- was received by him from Udhe Singh in December 1945 and Rs. 6,000/-  was given to him by his grand-father Chanda  Singh. Udhe  Singh has given evidence in support of the first  part of  the  story  and has said that he paid  Rs.  20,200/-  to Bhupinder  Singh  in payment of what he  owed  to  Bhupinder Singh’s  grandfather Chanda Singh and to his  father  Sajjan Singh.   When  asked why he made the payments  to  Bhupinder Singh, son of Sajjan Singh instead of to Chanda Singh or  to Chanda  Sing’s son Surjan Singh, Udhe Singh replied that  he did so "because my account was with Sardar Sajjan Singh."

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Udhe  Singh it has to be remembered is a close  relation  of Sajjan Singh, Sajjan Singh’s father Chanda Singh being  Udhe Singh’s mother’s brother. On  a  careful consideration of the evidence  of  these  two witnesses,  Bhupinder  Singh  and Udhe Singh  and  also  the registered  letter which was produced to show that  a  pucca receipt was demanded for an alleged payment of Rs.  20,200/- we  have come to the conclusion that the Special  Judge  has rightly disbelieved the story that this sum of Rs.  20,000/- was  paid  by Udhe Singh to Bhupinder Singh.  It has  to  be noticed that even if this story of payment was believed that would  not improve the appellant’s case.  For, according  to Udhe Singh this payment was 643 made by him to Bbupinder Singh on behalf of his father.   In any case, therefore, this amount of Rs. 20,200/- was  Sajjan Singh’s  money.  As regards the other amount of  Rs.  6000/- which  formed  part of the deposits in the  Punjab  National Bank  and a further sum of Rs. 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 Rs.  5,577/- in  the Imperial Bank of India at Moga, Rs. 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 Rs.  11,000/- standing in the name of Bhupinder  Singh  were held  by  Bhupinder Singh on behalf of  his  father,  Sajjan Singh.   It has to be mentioned that Mr. Justice  Capoor  in the  High  Court agreed with these  conclusions,  while  the other  learned  judge (Mr.  Justice Harbans Singh)  did  not examine  this question at all being wrongly of  the  opinion that the properties acquired prior to March 11, 1947  should not be taken into consideration. Thus  even  if  we leave out of account the  amount  of  Rs. 26,500/- standing in the name of appellant’s wife Daya  Kaur which according to the prosecution was held by her on behalf of her husband, Sajjan Singh, it must be held to be  clearly established  that  the pecuniary resources  or  property  in possession of Sajjan Singh and his son, Bhupinder Singh,  on his  behalf  amounted  to more  than  Rs.  1,20,000/-.   The question   then  is:  Was  this  disproportionate   to   the appellant’s  known sources of income?  As was held  by  this Court  in Swamy’s Case(1) "the expression ’known sources  of income’ must have reference to (1)  [1960] 1 S.C.R. 461. 644 sources known to the prosecution on a thorough investigation of the case" and that it could not be contended that  ’known sources  of income’ meant sources known to the accused.   In the present case the principal source of income known to the prosecution  was what the appellant received as his  salary. The  total amount received by the appellant  throughout  the period  of  his service has been shown to be  slightly  less than  Rs. 80,000/-.  The appellant claimed to have  received considerable  amounts as traveling allowance a Overseer  and

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S.D.O. and also as horse and conveyance allowance.  For  the period  of his service prior to May 1947, the records  which would  have  shown  what  the  accused  drew  as   traveling allowance were not available.  The Special judge found  that from  May  1947  upto January 1953  the  appellant  got  Rs. 6,504/6/-  as  traveling allowance.  On that basis  he  also held  that for the period of service as S.D.O. prior to  May 1947 he may have got about Rs. 5,000/- at the most.  For the period of his service as Overseer, the learned Special judge held  that, the appellant did not get more than Rs. 100/-  a year as travelling allowance, including the horse allowance. No  reasonable  objection  can be taken  to  the  conclusion recorded  by  the Special Judge as  regards  the  travelling allowance  drawn  by  the appellant for the  period  of  his service as S.D.O. It was urged however that Rs. 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 Rs. 5,000/-. One  cannot  also forget that much of what  is  received  as travelling  allowance  has to be spent by the  officer  con- cerned 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 Rs.  10,000/at  the most.   Adding these to what he received as salary and  also as Nangal Compensatory allowance the total in- 645 come received during the years would be about Rs.  93,000/-. It also appears that income by way of interest was earned by the  appellant  on  his provident fund  and  also  the  bank deposits standing in his own name or in the name of his son, Bhupinder  Singh.  The income under this head appears to  be about Rs. 10,000/-. The  total receipts by the appellant from his known  sources of  income  thus  appears to be about  Rs.  1,03,000/-.   If nothing out of this had to be spent for maintaining  himself and  his  family during all these years from  1922  to  1952 there  might have been ground for saying that the assets  in the  appellant’s possession, through himself or through  his son (Rs. 1,20,000/-) were not disproportionate to his  known sources of income.  One cannot however live on nothing;  and however frugally the appellant may have lived it appears  to us  clear that at least Rs. 100/- per month must  have  been his average expenses throughout these years-taking the years of  high  prices and low prices  together.   These  expenses therefore cut a big slice of over Rs. 36,000/- from what  he received.  The assets of Rs. 1,20,000/- have therefore to be compared  with  a  net income of  Rs.  67,000/-.   They  are clearly disproportionate--indeed highly disproportionate. Mr.  Lall  stressed the fact that the  legislature  had  not chosen  to  indicate  what proportion  would  be  considered disproportionate and he argued on that basis that the  Court should take a liberal view of the excess of the assets  over the  receipts  from the known sources of income.   There  is some  force in this argument.  But taking the  most  liberal view, we do not think it is possible for any reasonable  man to  say  that  assets to the extent  of  Rs.  1,20,000/-  is anything  but  disproportionate  to  a  net  income  of  Rs.

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1,03,000/- out of which at least Rs. 36,000/- must have been spent in living expenses. The  next  question is : Has  the  appellant  satisfactorily accounted  for  these disproportionately high  assets?   The Speical  judge  has  examined this  question  carefully  and rejected  as untrustworthy the appellant’s story of  certain receipts from one Kabul Singh, his son Teja Singh, and  from his father, Chanda Singh.  These conclusions appear to us to be  based  on  good and sufficient reasons and  we  can  see nothing that would justify us in interfering with these. 646 The  prosecution has thus proved facts on which  it  becomes the  duty  of  the  Court to assume  that  the  accused  has committed  the offence with which he is charged, 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(1) 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 that it was not open to the Courts to do so. This  case is however no authority for the proposition  that the  courts  could  not have convicted the  accused  for  an offence  under s. 5 ( 1) (c) for which he had been  charged. On  the  contrary it seems to be a clear  authority  against such a view.  After pointing out that the charge against the appellant  was  that  he has  dishonestly  and  fraudulently misappropriated  or  otherwise  converted for  his  own  use property entrusted to him, this Court observed:--               "It was not open to the learned Special  Judge               to  have  convicted  the  appellant  of   that               offence  by invoking the rule  of  presumption               laid  down  in sub-section (3).   He  did  not               however to do so.  On the contrary he  acquit-               ted the appellant on that charge.   Therefore,               learned Counsel has submitted that by  calling               in aid the rule of presumption in sub-s. 3 the               appellant  could  not be found guilty  of  any               other type of criminal misconduct                (1)  [1961] 2 S.C.R. 971.               647               referred to in cls. (a), (b) or (d) of  sub-s.               (1)  in respect of which there was  no  charge               against the appellant.               We consider that the above argument of learned               Counsel for the appellant is correct and  must               be accepted." The appellant’s Counsel is not in a position to submit  that there  is  evidence on the record which  would  satisfy  the Court  that the accused has "proved the contrary", that  is, that  he  had not committed the offence with  which  he  was

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charged. We  have  therefore come to the conclusion  that  the  facts proved in this case raise a presumption under s. 5(3) of the Prevention of Corruption Act and the appellant’s  conviction of the offence with which he was charged must be  maintained on  the  basis  of that presumption.  In this  view  of  the matter we do not propose to consider whether the High  Court was  right  in  basing  its conclusion  also  on  the  other evidence adduced in the case to prove the actual payment  of illegal  gratification  by  the partners of  the  firm  M/s. Ramdas Chhankanda Ram. Lastly,  Mr. Lall prayed that the sentence be reduced.   The sentence  imposed  on the appellant is one  year’s  rigorous imprisonment  and a fine of Rs. 5,000/-.  Under s. 5(2)  the minimum sentence has to be one year’s imprisonment,  subject to the proviso that the Court may for special reasons to  be recorded  in writing, impose a sentence of  imprisonment  of less  than  one year.  We are unable to  see  anything  that would justify us in taking action under the proviso.    In the result, the appeal is dismissed.                                          Appeal dismissed.