1971 INSC 0448
                                          Rameshwar Prasad Upadhyaya

                                                           Vs

                                                 The State of Bihar

                                         Criminal Appeal No. 61 of 1968

                                       (J.M. Shelat, I.D. Dua, S.C. Roy JJ)

                                                      20.09.1971

                                                     JUDGMENT

SHELAT, J. -

1. The appellant was, since 1945, serving as an assistant goods clerk at various railway stations
on the Eastern Railway. He did so till. January 1963 when he was suspended from service. The last
two railway stations where he served were Buxar and Patna Junction between 1957 to 1963.

2. He was tried by the Special judge, Patna under Section 5(1) read with Section 5(2) of the
Prevention of Corruption Act 2 of 1947, the charge being that while working as an assistant goods
clerk at Buxar and Patna between April 1956 and March 1959 he was habitually accepting and
obtaining or agreeing to accept or demanding illegal gratification and also for misconduct in the
discharge of his official duties as contemplated by sub-section (3) of that Section. His defence was
that he was falsely involved in the charge by the traders who resented his strictness against
transgression of the railway rules and by the trade union rivals in league with the investigating
officer. He also denied that he acquired or was in possession of properties or pecuniary resources
disproportionate to his known sources of income.

3. The learned Trial Judge held that except for one instance where he demanded Rs. 15 as illegal
gratification the rest of the instances alleged against him had not been established. The appellant,
therefore, could not be said to be habitually accepting or obtaining or demanding illegal
gratification within the meaning of clause (a) of Section 5(1). But he accepted the prosecution case
of the appellant being in possession of properties and pecuniary resources disproportionate to the
known sources of his income and on that finding held him guilty under Section 5(2) and sentenced
him to two years' rigorous imprisonment. On appeal against the said conviction, the High Court
confirmed the sentence and dismissing the appeal held that although the case against the appellant
that he was habitually demanding or accepting illegal gratification had not been proved, and only
one instance of demanding bribe had been proved, it was enough for the purpose of sub-section (2)
of Section 5 that it had also been established that he was in possession of properties disproportionate
to his known source of income, and was, therefore, guilty of misconduct in the discharge of his
official duties as envisaged by sub-section (3) of Section 5. Hence this appeal by special leave. alled
upon to produce documentary evidence in their possession

4. As regards the appellant's demand of Rs. 15 as bribe from Chiranji Lal Ladiya (P.W. 18), there
was concurrent finding both of the Trial Judge and of the High Court. In the absence of any reason
shown to us for interfering with that finding, we decline to reappraise the evidence in respect of that
instance in accordance with the well-settled practice of this Court.
5. As regards the prosecution case of the appellant being in possession of properties and pecuniary
resources disproportionate to his known sources of income, the evidence was that when he was
appointed in 1945 in the service of the railways, he started with monthly salary of Rs. 45/-. By 1958
his salary had gradually reached Rs. 147/- exclusive of the usual deductions. As calculatedssy the
special Judge, the total amount of salary drawn by him from 1945 to 1958 was not more than Rs.
16,172/-. This figure, as noted by the High Court, was not controverted by the appellant, and,
therefore, could safely be accepted.

6. As against such a modest salary, there were four Savings Bank accounts in the post offices at
Arrah and Balia. One account was in the name of the appellant's minor son showing total deposits
therein amounting to Rs. 8.176/- made between 1950 and 1953. The second account was in his own
name wherein between 1950 and 1953 various amounts were deposited aggregating Rs. 3,056/-. In
the third account, which was in the name of his minor daughter, deposits made between 1953 and
1954 totalled Rs. 6,300/-. The fourth account was in the name of the appellant's wife. That account
was opened with an initial deposit of Rs. 13,005/- on May 5, 1955. On July 20, 1959, another sum
of Rs. 2,237/- was deposited therein. There were, no doubt, several withdrawals from these accounts
during this period. But the fact that between 1950 and 1955 the total amount of deposits made in
these four accounts came to Rs. 30,537/-.

7. The appellant's wife and children admittedly had no independent source of income. Throughout
this period they were living with him. Their maintenance and upkeep must have exhausted a major
part, if not the entire, salary earned by the appellant. Despite that fact, the evidence showed that he
had purchased two trucks, one in April, 1956 for Rs. 27,810/- and the other in January 1957 for Rs.
27,505/. There is no gainsaying that the savings accounts and the acquisition of the two trucks
meant that the appellant was in possession of property which was disproportionate in comparison
with the salary he was earning during the period. Under subsection (3) of Section 5 the presumption
of misconduct has to be raised which the appellant had to rebut by satisfactorily accounting how and
wherefrom he had acquired those cash deposits and the two trucks, the total value of the which came
to a little more than Rs. 80,000/- against the total amount of salary of Rs. 16,000/- and odd drawn
by him but out of which very little could have been saved by him.

8. The appellant's defence was that he, his father Ramanand Upadhyaya and his step-brother Radha
Krishna formed a Hindu undivided family, that his father carried on money-lending business, from
out of the profits where of the family acquired 200 bighas of lands and that it was out of the gains of
the said business and those lands that deposits were made from time to time in the said four savings
accounts and two trucks purchased. In his statement under Section 342 of the Code of Criminal
Procedure, however, the appellant did not give any particulars regarding the income from the
business, lands or the houses in Balia which he said belonged to the family, and though he alluded to
the fact of Radha Krishna being a practising lawyer, he did not specifically say, as observed by the
High Court, that the professional earnings made by his step-brother were either treated as joint
family earnings or were thrown by the brother into the hotchpotch. He did not also examine the
brother as his witness to show either the quantum of his professional income or to show if such
income or part of it was diverted to the family coffers.

9. The appellant did, however, examine his brother-in-law Radha Krishna Misra (D.W. 1) and
produced some account books relating to the money lending business. D.W. 1 claimed in his
evidence that he was looking after the affairs of the family both during the lifetime of the appellant's
father and after his death in 1958, and was, therefore, in a position to depose about the said business
and the family lands. In the witness-box, however, he could not even give the locations of the lands,
nor could he give any exact idea of the income from those lands or from the money lending
business. In fact at once stage of his evidence he admitted that during the lifetime of the appellant's
father, the father himself used to look after that business and he alone used to maintain accounts in
respect thereof. In view of such vague and indefinite evidence, both the Special Judge and the High
Court were of the opinion that Misra was not a witness who could have managed the said lands or
the said business as claimed by the defence, and therefore, was not in a position to give any idea as
to the income arising from them with any degree of preciseness. The books of account relating to
the money lending business showed only the accounts of persons to whom moneys were lent, but
did not show the gains made from that business. Since neither the appellant nor D.W. 1, nor the
books threw any light on the question as to the profits and gains from the business and the lands, the
evidence came to no more than that the appellant's father used to carry on that business his lifetime.

10. There was, however, the evidence of P.W. 19, the Lekhpal of Karanpur Chapra that Ramanand
Upadhyaya was possessed of about 200 bighas of lands in various villages, out of which 41 bighas
were kasht and the rest were lands mortgaged to him. Presumably, the mortgage amounts, for which
those lands had been mortgaged to him, came either from the capital or the income of the money
lending business. But, as aforesaid, neither the appellant's statement, nor the evidence of D.W. 1, nor
the books produced in the trial Court threw any light on the extent of that business, the capital or the
income arising therefrom, or the amount involved in those mortgages. The evidence also did not
point to the fact that any particular amount was diverted towards making the said deposits in the
said savings accounts or towards the purchase of the said two trucks. As regards the houses in Balia,
as against the allegation of D.W. 1 that there were four houses which fetched an annual income of
Rs. 500/- to Rs. 600/-, the municipal records showed that there were only two houses which stood
not in the name of the father but that of the step-brother, and that the annual assessments in respect
of them were respectively Rs. 45/- and Rs. 70/- only. Obviously, the income from the houses could
not be as high as alleged by D.W. 1. Prima facie the fact that the two houses stood in the name of
Radha Krishna would indicate that they belonged to him unless it was shown by some evidence,
such as title-deeds, that they belonged to the joint family, and that it was only for the sake of
convenience or expediency that they were entered in the municipal registers in the name of Radha
Krishna. Neither such evidence nor the evidence of Radha Krishna was adduced to show that the
houses belonged to the family or what their income was or that such income or part of it was
deposited in the savings accounts or was utilised towards the purchase of the said two trucks. The
professional income, whatever it was, earned by Radha Krishna would ordinarily be the income of
Radha Krishna. Unless, therefore, it was shown that it was allowed to be treated as family income
by Radha Krishna or was brought by him in the hotchpotch, it was difficult to treat that as a known
source of income for explaining the deposits in the post office accounts or the acquisition of the
trucks.

11. Mr. Chari relied on a compromise decree, dated June 5, 1965, with a view to show that the
appellant had filed a suit for partition of the houses against the step-brother. Strangely, the fact of
the appellant having filed that suit was not relied upon the trial Court by him. The appellant did not
also rely on the suit or the compromise decree in the High Court. It would, therefore, appear that the
suit and the decree were collusive, their purpose being to show that the houses were family
properties. If that was so, it is difficult to understand why the fact of the suit having been filed by
the appellant and the compromise decree passed therein were not relied on by him either in the trial
Court or in the High Court.

12. Of the two trucks, one was purchased in the name of the appellant's wife on April 16, 1956. The
price of that truck was paid in three installments, all of which were paid up between March and
April 1956. The Savings Bank account in her name showed that Rs. 12,000/- were withdrawn
therefrom by her on April 2, 1956, exactly on the day on which the second installment of Rs.
18,155/- as part of the price of the truck was paid to M/s. Tewary Bechar & Co. from whom that
truck was purchased. No doubt, the case of D.W. 1 was that this truck as well as the other truck were
purchased by the appellant's father. But the truck was registered in the name of the appellant's wife.
Only a few days after its purchase she transferred and got in registered in the name of the her son.
The evidence was that all the payments in respect of the purchase of the two trucks were made by
D.W. 1 and not by the appellant's father, though, it was he who was alleged to have purchased them.
In the ledger of M/s. Tewary Bechar & Co. the appellants wife was shown as the purchaser, and
curiously, her address shown there was care of D.W. 1, and not the appellant or his father. It was the
somewhat extraordinary that although the appellant's father was said to have purchased the trucks,
there was no trace of his name either in the books of M/s. Tewary Bechar & Co. or in the
registration entries or anywhere else. The books maintained by the father in respect of the money
lending business also do not appear to have shown that he had made these purchases, nor did they
have any account therein reflecting the purchases.

13. In the light of this evidence neither the trial Court nor the High Court was prepared to accept the
appellant's explanation or the evidence of D.W. 1 that the trucks were not purchased by him but by
his father from the income of the business or the lands. No explanation was forthcoming as to why,
if the father was the purchaser, the trucks were purchased in the name of the appellant's wife, why
they were registered in her name, how or under what family arrangement one was transferred to the
appellant's son, why payments were made in the name of D.W. 1 and why the address of the
appellant's wife was shown to be care of D.W. 1. The evidence would, on the contrary, show that the
entire arrangement for purchasing the trucks was made by D.W. 1 and that was why payments were
made through or by him and the address of the purchaser, the appellant's wife was shown as care of
D.W. 1, so that if any enquiry had to be made by M/s. Tewary Bechar & Co. with regard to the
payment of the price that concern could address such enquiry to or through D.W. 1.

14. As against all this evidence, upon which the trial Court and the High Court gave their concurrent
findings, Counsel for the appellant raised two contentions. Relying on the observations of this Court
in V. D. Jhingan v. State of U.P., ((1966) 3 SCR 736 : AIR 1966 SC 1762 : 1966 Cri LJ 1357) cited
in fairness to the appellant by the High Court itself, Counsel contended that though Section 5(3)
raised a presumption against an accused person upon proof of disproportion between the known
sources of his income and the properties held by him, it would be enough for its rebuttal if the
explanation tendered by him appeared on a preponderance of probabilities to be true, and therefore,
he was not required to prove his case as strictly as where a case had to be proved beyond any
reasonable doubt. Therefore, the argument ran, the High Court had thrown upon the appellant a
burden of proof which was excessive than the one required under sub-section (3) of Section 5. The
second contention, which indeed was the corollary of the first, was that the evidence showed that
though the appellant's father carried on the said business and also held as much as 200 bighas of
lands, no bank or similar account stood in his name in which he could have deposited the earnings
from the said business and the said lands. That would suggest, Counsel argued, that the appellant's
explanation that the deposits in the savings accounts and the cost of the trucks came from those
earnings was true. The High Court, therefore, ought to have regarded his explanation as being on a
preponderance of probabilities acceptable and as satisfactorily accounting the disproportion between
the income of the appellant and the properties and pecuniary sources acquired by him.

15. A reasonable view of the evidence on record and an examination of the findings based on that
evidence given with unanimity both by the Special Judge and the High Court, however, fail to
satisfy that either of the two contentions can prevail. There is no doubt that upon proof of the
disproportion mentioned in sub-section (3) of Section 5, the onus falls upon an accused person to
account satisfactorily the acquisition of properties and pecuniary sources held or possessed by him.
That onus, it is true, may not be as strict as the initial onus on the prosecution which was first to
establish the disproportion between the properties held by an accused and the known source of his
income. The disproportion in the present case established by calculations made by the Special
Judge, which were not controverted, came to nearly Rs. 80,000/- for which the appellant had to give
a satisfactory account. It is true that he tried to suggest that the deposits and the cost of the two
trucks came from the income of lands, the houses, the money lending business and the professional
earnings of the step-brother. But, barring the appellant's statement under Section 342 of the Code of
Criminal Procedure, the evidence of D. W. 1 and some account books produced by D.W. 1, there
was no other evidence. As aforesaid, the evidence of the D.W. 1 was so vague and indefinite that
both the Courts came to the conclusion that he could not be managing the family affairs as he
claimed to have done. It was surprising for a man who claimed to have managed the family
properties and the business not even to know where the lands were situate, what were the profits
derived from them, the extent of the money-lending business and the income derived therefrom.
There was no explanation forthcoming as to how the two houses in Balia happened to stand in the
name of the step-brother, nor was there any evidence that they or the lands or the said business
belonged to the family. Equally was there no proof that the father had diverted the income from the
lands and the business towards making deposits in the savings accounts, the more substantial of
which were in the account in the name of the appellant's wife. The entire contention was on an
assumption that all these properties and the business belonged to the family, and that the father had
diverted the income therefrom in the savings accounts and towards the purchase of the trucks. The
first assumption was based on the sole ground that there was no account in the name of the father.
But there was no evidence as to the extent of the income or as to the manner in which the father had
dealt with it. The houses also were assumed to be family properties although they stood in the name
of the step-brother. It was easy to prove them to be the family properties, if they were so, by
producing the title deeds or any other similar evidence. If the money-lending business was
substantial enough to lay aside such a sum of Rs. 80,000/-, there would have to be a licence for a
business of that extent and there would also be an income-tax liability, through both of which it
would have been possible to show that it belonged to the joint family, its extent and the diversion of
its capital or gains in the Savings Bank accounts or towards the purchase of the trucks. None of
these things was even attempted. In these circumstances if the Special Judge and the High Court
refused to treat the defence as satisfactorily accounting the disproportion, it is not possible to say
that they were either wrong or that they threw upon appellant a burden excessive than warranted.

16. On a perusal of the evidence on record and the circumstances established through it we do not
find any reason to interfere with the concurrent conclusions of the two Courts. In the result, the
appeal must fail and is dismissed.

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