Reserved on : 05/02/2025 Pronounced on : 08/09/2025 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A. No. 902 of 2001 K.K.S. Nair, S/o. K.K.Pillai, aged about 60 Years, R/o. Frazerpur, District – Jagdalpur (C.G.) ---- Appellant Versus State of Chhattisgarh, through Special Police, Establishment (Lokayukt), Bastar Division, Jagdalpur (C.G.) --- Respondent ______________________________________________________________________ For the Appellant : Shri Ashish Shrivastava, Senior Advocate assisted by Shri Rohishek Verma, Shri Rahul Ambast and Hiya Sonchhatra, Advocates. For State / Respondent : Shri Ankur Kashyap, Dy. G.A.. ______________________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment 1. The appellant has filed this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) assailing the legality, correctness and propriety of the judgment dated 03/09/2001 passed by the Special Judge, Jagdalpur, District – Bastar (C.G.) in Session trial No. 08/98 whereby the appellant has been convicted for an offense punishable under section 13 (1)(e) read with section 13 (2) of the Prevention of Corruption Act, 1988 (in short ‘PC Act’) and sentenced to undergo R.I. of 1 year and 06 months with fine of Rs.25000/-, in default of payment of fine 06 months additional R.I. was imposed on the appellant. 2. Case of the prosecution, in nutshell, is that, appellant – K.K.S. Nair was working as Oversear (Superintendent) in the Municipal Council, Jagdalpur, between 21/12/79 ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.09.12 12:17:00 +0530 -2- to 31/03/95. Smt. Leena Nair, Ku Jyoit and Rajkiran were the wife, daughter and son of the appellant respectively. On 30/03/1995 at about 06:00AM, Investigating Officer - S.R.Uwaney (PW-13) who was posted as Dy.S.P in the Special Police Establishment, Lokayukt Office, Bastar, Division - Jagdalpur recorded F.I.R. vide Ex.P/43, indicating therein that upon secret information that KKS Nair who is working in Municipal Council at Jagdalpur has obtained property disproportionate whose known source of income which was verified and it was found that a house valuing to Rs.15,00,000/- (fifteen lakhs) was constructed at Shanti Nagar Ward, Frezarpur, Jagdalpur beside this Vehicles - Motorcycle, Scooter were purchased including luxurious items like Color Televison, Fridge, Cooler, Gold - Silver ornament jewelry and other valuable articles is available and cash is deposited on different bank account was found at the home of appellant. On that basis of this FIR 0/95 was registered at Police Station – Frezarpur, Jagdalpur and search warrant on Ex.P/44 was obtained from the Special Judge, Bastar, Jagdalpur and after receiving investigating order from D.I.G, Special Police Establishment (Lokayukt), Bhopal, the investigation was set on motion. Raid was conducted in the house of the appellant on 31/03/1995 situated at Frezarpur, Jagdalpur and the inventory of the articles were prepared vide Ex.P/1. The recovered gold ornament were seized vide seizure panchanama Ex.P/2. The seized ornaments was investigated from the Amol Majumdaar (goldsmither) and certificate Ex.P/3 was received. Passbook, Cheque book, Life Insurance Policy, Registration certificate of the vehicle and other documents were seized vide Ex.P/4. Information with regard to bank accounts maintained by the appellant and his family members was received. Information was also sought from Life Insurance Corporation. Information with regard to salary of the wife and daughter of the appellant was also received. After receiving such information, Ex.P/56 was prepared and according to which the appellant received total salary Rs.37,804=72p from 01/03/65 to 20/12/79 and Rs.2,74,921=87p was received by him from 21/12/79 to 31/3/95. The wife of the -3- appellant received salary of Rs.82,280=46p from 01/10/82 to 31/3/95. Daughter of the appellant received salary of Rs.41,540=00p from 01/09/93 to 31/3/95. Rs.2000/-, Rs.5000/-, Rs.2000/- was received as bonus from Life Insurance Corporation on 31/05/90, 15/05/92 and 28/02/94 respectively. Divendent of Rs.282.42p, 347.11p and 462.17p was received from Unit Trust of India on 01/07/92, 01/07/93 and 15/07/94 respectively. Therefore, the total income of the appellant, his wife and daughter was found to be Rs.4,38,814.80p between the period i.e. 01/03/66 to 20/12/79. 3. Expenditure of Rs.14,01,1111.56p was assessed by the appellant and his family members for the check period from 01/03/1966 to 31/03/1995. 60% of the total income of Rs.22,682.83p was found to be expenditure between the period from 01/03/1966 to 20/12/1979 and total expenditure of Rs.1,64,953=12p was assessed between the check period 31/12/1979 to 31/03/1995. The wife of the appellant purchased a plot bearing No.1/3, value and registry fees Rs.8,620=00 amount of Rs.7658=50, Rs.15,911.00 was paid as insurance premium of Insurance Policies. Rs.3940/- for registration fees of purchased of plot No.70 in the name of the son of the appellant. Rs.1000/- from unit trust of india in name of Smt. Leena Nair, Rs.2526/-, Rs.4220/-, Rs.1585/- Rs.776/- was said to have been paid for premium of the different policies and according to Ex.P/56 other expenditure was made. Total expenditure of RS.14,01,111=56 was made by the appellants and disproportionate amount of RS.09,62,296=76p was found from the known source income of the appellant. Later on information with regard to receipt of Rs.84,526=00 from the agricultural sources between the period 1981-82 and 1994- 95 was found and on adding the same in the income of the appellant the total income of the appellant was come to Rs.5,30,340=00p and the disproportionate property comes to Rs.8,77,770=76p. On completion of the investigation, the charge-sheet was filed before the learned trial Court. -4- 4. The appellant was charged for an offense punishable under section 13 (1)(e) and 13(2)of the PC Act who denied the charges and claimed to be tried. 5. In order to bring home the guilt of the appellant, prosecution has examined as many 13 witnesses and exhibited 107 documents. Two Defense Witnesses namely T.P.Appukuttan Pillai (DW-1) and R.N. Gupta (DW-2) Statement of the appellant under section 313 of the Cr.P.C. was recorded in which he pleaded that he has been falsely implicated and took a defence that the house situated at Frezarpur, Jagdalpur was constructed from the income of his wife, brother-in-law – Appu Kuttan and Koman Kuttam used to sent to his wife and during the search of the house many articles and jewellery is belong to his wife and the sister-in-law and their children who were residing at him at that time. He also took a defence that her wife engaged in diary, vegetable business and also imparting tuition from which she was earning money. He was innocent and falsely implicated in the case. The learned trial court on assessment of material and evidence placed before it found that the prosecution was able to prove the case against the appellant under sections 13 (1)(e) and 13(2)of the PC and conviction and sentenced the appellant as stated in the impugned judgment which led to filing of this appeal. 6. Learned Senior Counsel appearing for the appellant vehemently argued that the prosecution was unable to prove its case beyond reasonable doubt. He further submits that the prosecution has not prepared the inventory in proper and legal manner. He submits that the valuation of the articles mentioned in the inventory Ex.P/1 has no basis. He further submits that value of the articles so prepared in the inventory Ex.P/1 was not done by any certified valuer. The Investigating Officer (PW-13) has on his own means and fancy mentioned the value in the inventory without any basis. Therefore, the trial court reliance on the valuation made in the inventory, cannot found basis for conviction of the appellant for sections 13 (1)(e) and 13(2)of the PC. He further submits that apart from the appellant, wife and daughter and sons of the appellant are earning members of the family. The house -5- which said to have been valued to sum of Rs.6,18,800/- was accepted by the learned trial court without any justification. He goes on to submits that valuer Sudhakar Hatwaar (PW-6) has valued Rs.07,28,000/- of the Frezarpur House only the basis of some register maintained in the Office regarding the house has been constructed every year and valuation report has prepared by the said register and by taking the average of it, the assessment was made. He submits that the appellant’s wife who was a Teacher and she was income tax payee. The house said to have been built between 1989 to 1991 and from the statement of the J.R. Gond (PW-10) who was a U.D.C. at Income Tax Office it is quite apparent that the capital income of the wife of the appellant was more than three lakhs which could easily be sufficient for construction of the house. Apart from this, the defence was from very beginning that the house was constructed from the income of the wife and it was in the name of wife of the appellant. The learned trial court committed an error of law in giving the finding that the house was a Benami and the appellant spent money on the construction of the said house. From the statement of the T.P. Appukuttan Pillai (DW-1) the brother of wife of the appellant categorically established on record that from time to time he used to send money to the joint account of the appellant and his wife. Since his wife and two children were residing in the house of the appellant naturally this amount would have spent on them. Apart from this, three draft of Rs.50,000/- each was given to the appellant wife from time from the year 1989 to 1991 which was erroneously held by the learned trial court in expenditure given by the appellant. He further submits that it is amply clear on record that certain articles were recovered from room No.3 and the inventory was also prepared in this regard. The room No.3 was occupied by the sister-in-law and her children who were residing with the appellant and as sum certain amount were received by the brother in law, it must have been spend by them for purchasing certain articles. Therefore, the addition of the value of the articles seized from room No.3 could have not been added in the expenditure of -6- the appellant. He further submits that the prosecution unable to establish on record that the gold ornaments belong to the appellant. The gold ornaments was of the wife as well as of the sister in law of the appellant and it is the Streedhan which was given to the wife during the course of marriage. There is no evidence on record to suggest as to how the valuation of the gold and such ornaments was seized from the appellant. Investigating Officer (PW-13) has categorically admitted the fact that though the gold ornaments seized were sent for its verification to the goldsmith - Amol Majumdaar but the same goldsmith have failed to evaluate the value of the gold ornaments, therefore, the amount of the gold ornaments so seized ought to have been deleted from the expenditure of the appellant. Alternatively he submits that the incident said to have been committed in the year 1995. The appellant is facing litigation from that period and he was in service at the time when the charge-sheet was filed and before the judgment could be deliver he was superannuated. The impugned judgment was passed on 03/12/2001 and since then he is facing the trauma of the criminal litigation. At present the appellant is at about 85 years and suffering from various medical ailments including type of blood cancer various documents is placed on record to substantiate this fact. He further submit that after superannuation of the appellant, he was not been paid on account of conviction sustained by him. There was no criminal antecedent of the appellant prior to this case and during he was on bail during the trial as well as during the pendency of this appeal and had never misused the liberty extended to the appellant, even a lesser punishment including till rising of the court. He submits that in the event this court is not convinced and the appeal is being dismissed, the sentence may be reduced to undergone. In order to strength his submission he placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Ambi Ram Vs. State of Uttarakhand, (2019) 17 SCC 396, K.P. Singh Vs. State (NCT Delhi), (2015) 15 SCC 497 and Munilal Mochi Vs. State of Bihar & Anr., (2012) 12 SCC 546 and the judgment -7- passed by this Court in case of N.K. Verma Vs. State of M.P. (now C.G.), Cr.A. No.12058/1999 dated 23/01/2023. 7. Per contra, learned counsel for the State opposes the submission made by Shri Shrivastava, Senior Advocate. He submits that the prosecution by its cogent and prudent evidence was able to prove the total amount of the income earned plus received by the appellant, his family members and the expenditure done by them during the check period. The learned trial court have expected the submission of the appellant and certain amount for the inventory of the articles seized from room No.3 was deleted. Apart from that, he submits that the prosecution was able to prove by the prudent evidence that an amount of Rs. 9,05,513/- was disproportionate to the known source of income of the appellant. He submits that the valuation of the house is correctly done by the learned trial court on the basis of evidence of valuer Sudhakar Hatwaar (PW-6). The learned trial court has also given a categorically finding that as no enmity between the Sudhakar Hatwaar (PW-6) and appellant as to give any higher valuation to the house constructed. Admittedly, he submits that an amount said to have been received from the brother-in-law has not been mentioned in the bank statement of the appellant. Therefore, this cannot be accepted that the amount has to be deducted. He further goes on to submit that gold ornaments was checked by the goldsmith and found to be 22 carats of gold, therefore, the assessment was made by the investigating officer keeping per gram valuation value of the gold ornaments to Rs.450/- and thereby he rightly assessed the value of the gold ornaments. Apart from this, he submits that Investigating Officer (PW-13) has categorically stated that on the basis of the witnesses, he came to a conclusion that an articles and gold ornaments seized from room No.3 as well as other area, belong to the appellant. The learned trial court has given the depreciation amount and after deducting the due depreciation and another expenses came to an conclusion that the appellant has an amount of Rs.9,05,513 disproportionate that known source of income. -8- Therefore, he submits that the well merited finding recorded by the learned trial court ought not to have been disturbed. The appeal sans merits and is liable to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection. 9. Change of disproportionate amount of Rs. 8,77,770=76P is in this case. The check period is between 21.12.1979 to 31.03.1995. 10. In the case in hand evidence of A. R. Yuvane (PW-13) is significant. This is the witnesses who has investigated the crime. According to this witness, from 10.02.1995 to 15.09.1998 he was working as Dy. S.P. in Special Police Establishment Office, Bastar Dvision Jagdalpur. He received a secret information that the appellant has acquired property worth of lacks by corruption more than his income. According to this witness, it was verified secretly and found to be correct. He recorded the First Information Report in Crime No. 0/95 (Ex. P/43) on 30.03.1995. Thereafter, he obtained the search warrant form Special Judge, Jagdalpur (Ex. P/44). After calling the witness, along with them he went to the house of witness, along with them he went to the house of appellant & showed him the search warrant and obtained his signature and searched the house of the appellant. The inventory of the household article (Ex. P/1) was prepared. The gold ornaments available in the house were seized vide (Ex. P/2). The seized ornaments were verified by a goldsmith Alam Majumdar who gave the certificate (Ex. P/3). In presence of witnesses seizure Panchama (Ex. P/4) of Bank Pass Book, life insurance policy, paper of the vehicle, UTI Certificate, sale deed receipt, gold receipt was prepared. 11. Ex. P/1 is the inventory of house hold article and ornaments of the appellant. It contains 198 items/entry related to household article. The learned Trial Court has detailed it in paragraph 22 of the impugned judgment. The total value of items -9- mentioned in the inventory Ex. P/1 is Rs. 3,91,620=00. Rs. 870=00 was reduced from it. Total Rs. 3,90,880=00 were found which was spent by the appellant. Value of items which were found in bedroom No. 3 was deducted from the total value therefore after deduction of Rs. 39,900/- from the total value of Rs. 3,90,803=00, the total amount of Rs. 3,50,903=00 was found to have spent by the appellant. Shri Ashish Shrivastava Sr. Advocate attacked vigorously the valuation of the article mentioned in inventory Ex. P/1 by submitting that the value of the article has been mentioned without any assessment and has been made on the assumption of the Investigating Officer, S. R. Yuvane PW-13. There is no basis to ascertain the value of the articles therefore this cannot be relied upon to hold that the appellant had spent the amount of value of articles mentioned in the inventory Ex. P/1 and it should be discarded in toto. In case of Manoranjan Kalita Vs. the State of Assam, 2014 Cr. LJ 689, the Hon’ble Supreme Court held in para 19 & 20 that merely submitting a list of assets and liabilities is not enough to attract the offence under Section 13(1) (c) of PC Act as under: “19. Merely submitting a list of assets and liabilities is not enough to attract the offence under Section 13(1)(c) of the PC Act. Someone has to prove the correctness of the entries made in such a list. 20. In order to sustain an offence, under Section 13(1)(e) read with Section 13(2) of the PC Act, 188, three essential conditions are required to be satisfied. Firstly, the prosecution has the burden to prove that the value of the property or properties, which the accused was alleged to have had in possession, either personally or through any member(s) of his family. Secondly, there must be proof of known source of income and, thirdly, there must be proof that properties, in question, are disproportionate to known source of income. In short, thus, the prosecution ought to have, in the present case, disclosed, on record, with the help of evidence, as to what known source of income of the accused-appellant had been. If mere valuation of property of the accused is given without providing or adducing any evidence with regard to the income of the accused from his known source, the prosecution cannot be said to have discharged its burden of having proved the offence, under Section 13(1)(e) read with Section 13(2) of the PC Act, -10- 1988, and, until the prosecution discharges its initial burden of proving its case, the onus does not shift to the accused to satisfy the Court with his explanation, by adducing evidence, that either the valuation of his property has not been correctly done, or that his known source of income, or in the light of his known source of his income, he has never been in possession of property or properties disproportionate to his known source of income.” 12. In the matter of State of MP vs. Rajendra Singh Yadav, AIR Online 2021 Chh 155, this Court referring to various judgments of the Hon’ble Supreme Court held in paras 9, 10 & 11 as under: “9. In order to prove the charge under Section 13(1)(e) of the PC Act, 1988, the prosecution must prove the following ingredients, namely (1) the prosecution must prove that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which are found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, (4) it must prove quite objectively that the resources or property found in possession of the accused were disproportionate to his known source of income. Once the abovementioned ingredients are satisfactorily proved, the offence of criminal misconduct under Section 13(1)(e) of the PC Act, 1988 is complete, unless the accused is able to account for such resources or property and it is only thereafter the burden shifts to the accused to prove his innocence. 10. The Supreme Court in the matter of State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186, dealing with Section 5(1)(e) of the Prevention of Corruption Act, 1947 which is parimateria to Section 13(1) (e) of the PC Act, 1988, has held that the accused having been found in possession of disproportionate assets, he is duty bound to account satisfactorily for such possession. It was observed as under: “13.....To substantiate the charge, the prosecution must prove the following facts before it can bring a case under S. 5(1)(e); namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession,(3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were -11- disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under S. 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets.....” 11. Similarly, in the matter of M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad, AIR 1993 SC 313, Their Lordships of the Supreme Court again analyzing the provisions contained in Section 5(1)(e) of the Prevention of Corruption Act, 1947 (parimateria provision to Section 13(1) (e) of the Act of 1988) held that it is not the mere acquisition of property that constitute an offence under the provisions of the Act but it is the failure of accused to satisfactorily account for such possession that makes the possession objectionable as offending the law. Their Lordship further held that only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused. It was observed as under: “6. An analysis of Section 5(1)(e) of the Act, 1947 which corresponds to Section13(1)(e) of the new Act of 1988 shows that is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. 7. To substantiate a charge under Section3(1)(c) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused.” 13. The learned trial Court has considered this argument and rejected the same by giving a reasons that as per S. R. Yuvane Pw-13 the inventory was written after asking from the appellant. Thought the learned trial Court in examination of appellant under Section 313 of Cr. P. C in question No. 8 has put this question with -12- regard to preparation of inventory, however, there is no whisper with regard to preparation of the same by PW-13 by asking the appellant. Therefore, if it is not asked to appellant to explain, it cannot be relied upon against the appellant. Barring this, there is no evidence on record to show as to when the articles mentioned in the inventory Ex. P/1 were purchased. Apart from this in paragraph 24 of evidence S. R. Yuvane PW-13 has admitted that he has not mentioned in inventory Ex. P/1 that value of article is mentioned as per appellant. It is also not in dispute that sister-in- law & her kids of the wife of appellant were also residing in the house. This fact has also admitted by the S. R. Yuvane Pw-13 in his statement paragraph 25. He further admitted barring the house of appellant at Frezerpur he has not done the valuation of the articles from any person. The learned trial Court has given depreciation of 5% of Rs. 17,545=00 and thus Rs. 3,33,358=00 was found to spend by appellant. Thereofree, the valuation of the household articles of the inventory (Ex. P/1) appears to be only on the presumption and guess work of the investigation officer S. R. Yuwane (PW-13). 14. Inventory Ex. P/1 also details that ornaments seized during search from serial no. 216 to 234. The learned trial Court has detailed the same in paragraph 27 of impugned judgment. Total 14 items of ornaments shown in this list at paragraph 27 of impugned judgment. The weight of these ornaments and their respective value has also been mentioned. Total weight of these gold ornaments is 250.700 grams and of 22 carets. The seized gold ornaments were examined by a goldsmith namely Alam Majumdar who gave the report Ex. P/3. According to this witness the goldsmith was called on the spot and gold ornaments were examined by him and gave the report Ex. P/3. Surprisingly the goldsmith was not examined as witness. The learned trial Court in the cross examination question was asked that as per value of gold coin as Rs. 3600/- as shown in Ex.P/2, therefore one gram value of gold would be Rs. 450/-. Hence trial Court assumed that the defence has admitted the value of one gram gold to Rs. 450/- and thus valued the gold ornaments to Rs. 1,12,815/-. The -13- value of gold ornaments mentioned as 1,13,452/- was accepted by the learned trial Court. S. R. Yuvane Pw-13 in his staement in paragraph 26 denied that value of one gram gold would be Rs. 450/-. He admitted that he has not verified about the making charge of the gold ornaments from any goldsmith. He also admitted that he has not valued the gold ornament from goldsmith Alam Majumdar. It is worthwhile to add here that R. B. Singh PW-1 in his statement in paragraph 3 stated that gold was weight by gold smith at the spot. Therefore, it is apparent that the gold ornament was weight at the spot by the goldsmith Alam Majumdar who gave the certificate Ex. P/3, however he was not examined to prove this certificate. It is not the case of prosecution that the investigating officer or any other person has weight the gold ornament. Important witness who could actually prove the weight of the gold ornament has been withheld by the prosecution creating doubt on the prosecution case. Question No. 10 in examination of appellant under section 313 Cr.P.C. in this regard was put to appellant. In answer to it he showed his ignorance about this. It has been admitted by S. R. Yuvane PW- 13 that majority of the gold ornaments are of ladies wearing. One gold chain was worn by appellant and one gold chain was of 8 grams of 22 carat. The appellant in answer to question No. 9 under section 313 Cr.P.C examination has sated that gold ornaments were of wife of his brother-in-law and of his wife and children. The defence tried to establish that gold ornaments were given in marriage to wife of appellant. This defence was disbelieved by the learned trial Court. Form the evidence of T.P. Appukuttan Pillai (DW-1) has deposed that the marriage of appellant with his sister was solemnized in the year 1968. No cash was given however as per ritual ornament were given. He further stated that as far as he remembers gold necklace, gold bangles, gold rings and some more jewellery was given which he could not remember. He stated that the jewellery was given by this father not by him. He does not remember the number of jewellery given as he he was a student at that time. He cannot tell the weight of the jewellery. Learned trial Court disbelieved that seized gold ornaments were given to wife of the appellant at -14- the time of marriage. Of course this witness with certainty could not disclosed as to how much jewellery was given but in the Indian culture jewellery is given to the bride at the time of marriage. As stated earlier most of the gold ornaments was ladies wearing. Apart from this there are other earning members of the family. The wife of the appellant was a teacher and who engaged in vegetable and milk business. She is assessed to income tax and has been filing the income tax return. G. R. Gond (PW-10) UDC of income tax department has deposed in the assessment year 1991- 92 her capital account was Rs. 3,33,914/-, in the assessment year 1992-93 capital account was Rs. 3,55,191/- in the assessment year 1993-94 capital account was Rs. 3,82,460=00 in the assessment year 1994-95 capital account was Rs. 4,11,723/- and for assessment year 1995-96 capital account was Rs. 4,45,871/-. He further deposed that no suspicion was seen by income tax department in the capital account hence her statement and account was accepted by the department. Therefore, when the prosecution by cogent evidence failed to prove the actual weight of gold ornaments particularly absence of evidence of goldsmith and also the value of the same and other earning family members are there, hence adding the value of gold ornaments into the expenditure of the appellant does not appear to be based on proper appreciation of evidence. 15. Sudhakar Hatwar (PW6) Executive Engineer (PWD) has given the valuation report of house of Smt. Leena Nair (wife of appellant) at village – Frazarpur. The report given in three pages Ex.P/11 and Ex.P/12. He valued the house to Rs.7,28,000/-. In cross examination, he stated in his department contract is given to contractor on the basis of value mentioned in CSR. On the basis of average rate of the year 1989 to 1992, he gave the valuation report. He has prepared this on the basis of register of the department which has not been seized by prosecution. As to how the valuation is made certain is not mentioned in valuation report Ex.P/12. He further deposed that Ex.P/11 is the photocopy of the map. Original is kept in his office. He admitted that original map of Ex.P/11 was prepared by Sub-Engineer and not by him. -15- Measurement was also done by the said Sub-Engineer. He further stated that he cannot tell with certainty with regard to expenses incurred in different portion of the house. He has valued the construction of plinth area to Rs.3000/- per square meter which according to the register. Valuation of construction of first floor @ 2500/- per square meter is according to their register. This witness has valued the house of Smt. Leela Nair (wife of appellant) to Rs.7,28,000. R.N.Gupta (DW1) was examined by appellant who gave the valuation report of the said house as Ex.D/7. According to him, the value of the house was Rs.4,40,000/- in February, 1993. The learned trial Court disbelieved the report of this witness. It has been held that there is not grudge against appellant or Smt. Leela Nair by Sudhakar Hatwar (PW6) hence there is no sufficient reason to disbelieve his statement. The learned trial Court gave depreciation of 15% (1,09,200/-) and valued the house to Rs.6,18,800/-. Perusal of statement of Sudhakar Hatwar (PW6), it is quite vivid that he has prepared the valuation report on the basis of a register of the department. The said register is not brought in evidence. Apart from this, the Ex.P/11 is the photocopy of the map. The same was prepared by Sub-Engineer and also took the measurement. PW6 has not stated as to when he went to the house of Smt. Leela Nair (wife of the appellant) for valuation. In absence of evidence of Sub-Engineer who prepared the map and took the measurement of house the valuation done by Sudhakar Hatwar (PW6) does not inspire confidence to be gospel truth. Perusal of valuation report (Ex.P/12) indicates that the value has simply multiplied the constructed area with the respective rates. Apart from this, the learned trial Court has considered this property as benami property. The defence of the appellant is that the house was constructed by his wife. As discussed earlier, the wife of the appellant was assessed to income tax and also had sufficient capital balance. Therefore, this Court is unable to agree with the finding of the learned trial Court that Rs.6,18,000/- was the expenditure of the appellant. In this context, it would be apt to rely upon the judgment of Hon’ble Supreme Court in the case of Krishnanand Agnihotri v. State of M.P., AIR 1977 -16- SC 796 in which, it is observed in paragraph 25 as under - “25. The next item of assets to which we must refer is the land at Varanasi which was purchased for Rs. 2,500/- in 1956. The sale deed of this land was in the name of Shanti Devi and hence it must be presumed, unless the contrary is shown by the prosecution, that the land belonged to Shanti Devi in whose name it was purchased and it stood in the records of the Municipal authorities. The case of the appellant was that this land was purchased by the father of Shanti Devi for her benefit and the consideration for the sale was also provided by the father of Shanti Devi. Ramadhar Avasthi D. W. 22, the father of the first husband of Shanti Devi, clearly stated in his evidence that Anant Ram, the father of Shanti Devi had purchased a plot of land for Shanti Devi for Rs. 2,500/- and this was supported by Bachhalal D. W. 11 who was one of the attesting witnesses to the sale deed. It is indeed difficult to see how this evidence led on behalf of the appellant could be brushed aside and without any evidence whatsoever led on behalf of the prosecution, it could be concluded that the purchase price of the land was paid by the appellant and that the land was purchased by the appellant in the name of Shanti Devi. We must, therefore, exclude this land in computing the total assets belonging to the appellant.” Likewise, in the case of DSP Chennai v. K.Inbasagara, AIR 2006 SC 552, it has been held as under- “16. Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income- tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned -17- the entire money and the other wealth earned by her by not showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the Prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. Hence, we do not find any merit in this appeal and the same is dismissed.” In the case in hand, from the evidence on record, it is established on record that the wife of the appellant was an earning member of family and had sufficient source to construct the house. Therefore, finding of the learned trial Court does not appear to be based upon proper appreciation of evidence. 16. The appellant was charged that he has acquired disproportionate property of Rs.8,77,770.76p from the known source of income between the period 21/12/1979 to 31/03/1995. The learned trial Court found that the appellant had expenditure of Rs.1,22,3557.64p. As per Ex.P/56 for premium, purchase of plot and other expenses, -18- Rs.3,33,350/- as per inventory Ex.P/1 for purchase of article, Rs.6,18,800/- expenses in construction of house at Frezarpur, Rs.1,13,452 for purchase of gold and gold ornaments as per Ex.P/2, Rs.1,87,635/- expenditure on livelihood, social, religious and amusement. Thus, total Rs.13,75,600.64p as expenditure of appellant. The learned trial Court thereafter reduced further 10% from the expenditure of livelihood, religious, amusement and found the expenditure under this head to Rs. 1,56,363.30p/- thus found total Rs. 13,44,327.44p as expenditure of appellant. After deducting Rs.4,38,814.80p the total earning of family of the appellant from known source found Rs.9,05,513.14p disproportionate property of appellant from known source of income. The learned trial Court has disbelieved the statement of T.P. Appukuttan Pillai (DW1) who stated that his wife and children are residing with appellant and he has sent money from Dubai to his sister Leela Nair which also finds corroboration from the statement of PW4. Apart from this, it is to be seen that value of house construction was wrongly added as held by this Court in previous paragraph. So also the valuation of house hold article in inventory Ex.P/1 is without any substantial basis. Hence, the finding of the learned trial Court does not appear to be based upon proper appreciation of evidence. 17. Thus, analysis of evidence reveals that there are other family members who have independent source of income. The house of Smt. Leela Nair was constructed by her from her source of income. The weight & value of the seized gold ornaments could not be proved by the prosecution by cogent evidence. There is no basis upon which the household articles were valued. It appears to be based upon the own guesswork presumption of S.R.Yuvane (PW13). Therefore, the prosecution could not prove the initial burden of having disproportionate income from his known source which he has to explain. Thus, the prosecution failed to prove the charge as levelled against the appellant beyond reasonable doubt, hence he is entitled to benefit of doubt. The prosecution to succeed in a criminal trial has to pitch its case beyond all reasonable doubt and place it in the realm of “must be true” and not in category of -19- “may be true”. 18. Thus, the impugned judgment is set aside. The appellant is acquitted from all the charges. The appeal thus allowed. 19. Appellant is reported to be on bail his bail bond will remain in operation for a period of 6 months in view of Section 481 of BNSS, 2023. Record with copy of this judgment be sent back trial Court. Consequence to follow. Sd/- (Sachin Singh Rajput) Judge Ashish