TaxTMI 
TaxTMI 
1981 (5) TMI 133
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 s. 5(2) read with s. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5,000 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 s. 5(2) read with s. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 s. 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 pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... So also the same meaning must be given to the words "for which the public servant is unable to satisfactorily account" occurring in s. 5(1)(e). No doubt, s. 4(1) provides for presumption of guilt in cases falling under ss. 5(1)(a) and (b), but there was, in our opinion, no need to mention s. 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 s. 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 s. 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 s. 5 (1) (e) of the Act. The expre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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: s. 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 ....