JUDGMENT
Usha Mehra, J.
(1) By this appeal, appellant beside challenging the order of the Special Judge on merits, thereby convicting him for criminal misconduct under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act,1947 (in short the Act), has also raised a legal question of importance regarding the construction on the provision of Section 294 of the Code of Criminal Procedure,1973 (in short the Code).
(2) The ingredients of the offence of Criminal misconduct under Section 5(2) read with Sections 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which public servant cannot satisfactorily account. To substantiate the charge, the prosecution has to prove (i) that the accused is a public servant, (ii) nature and extent of the pecuniary resources or property which were found in his possession, (iii) it must be proved as to what were his known sources of income i.e. known to the prosecution and (iv) it must prove, quite objectively that such sources or property found in possession of the accused were disproportionate to his known sources of income. By establishing these ingredients prosecution brings home the guilt of the accused unless he is able to account for the same. It is at this stage that the burden shifts to the accused. But it must be kept in mind that the accused is not bound to prove his innocence beyond all reasonable doubts. The Evidence Act does not contemplate that accused should prove his case with same strictness and regour as the prosecution is required to prove a criminal charge. It is sufficient if the accused is able to prove his case by the standard of preponderance of probability as a result of which he succeeds not because he proved his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, threfore, the prosecution cannot be said to have established the charge beyond reasonable doubts.
(3) The cardinal principle of criminal jurisprudence are (i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from correctness or falsity of the defense version by proving its case, (ii) that in a criminal case accused must be presumed to be innocent unless proved guilty and (iii) that the onus of the prosecution never shifts.
(4) The appellant Gunjit Singh at the relevant time was functioning as Inspecting Assistant Commissioner of Income Tax (Audit) New Delhi. He is an officer of Irs Cadre. By the facts the prosecution proved that appellant was a public servant. Prosecution lead evidence to prove that the appellant was in possession of pecuniary resources or assets as on 4th 0ctober,1985 which were disproportionate to his known source of income. Appellant did not lead any evidence instead relied on the documents produced by the prosecution. Before analysing the evidence, the brief facts as put up by the prosecution that appellant worked in various capacities from 1964 onwards and acquired wealth by corrupt and dubious means in the form of moveable and immoveable assets in his name and in the name of his wife or relations. He made huge investments. He acquired a house known as Balwant House, Solan, (H.P.) in the name of his wife. Further purchased a plot of land at the cost of Rs.25,000.00 at 92, Shaheed Udham Singh Nagar, Jullandar City. Constructed a house on the same by investing more than Rs.1 lakh. He purchased one commercial flat bearing No.901, Akashdeep, Barakhamba Road, New Delhi. Moveable assets were also acquired by him in the form of jewellery ornaments, gun, FDRs, shares, scooters, Car, Electric Gadgets, Refrigerator, Utensils, besides having cash amounts in his name and in the name of his wife. Investigation revealed that he mainly started assessing wealth from 1st April,1971 onwards. Hence for computing income, expenditure and assets the check period was taken from 1st April,1971 to 4th 0ctober,1985. Due credit was given for the assets which the appellant had at the beginning of the check period :i.e. 1st April,1971. Further allegations were that appellant received a sum of Rs.14,96,095.99 Paise as income from known sources an9 had incurred expenditure of Rs.4,61,270.68 Paise. On further calculations the Trial Court came to the conclusion that there was an amount of Rs.7 lakhs with the appellant which he failed to explain hence this amount of Rupees seven lakhs was disproportionate to his known source of income.
(5) The Special Judge, after analysing the evidence vide impugned judgment concluded that appellant had assessed wealth worth Rs.7,00,000.00 disproportionate to his known source of income.
(6) Counsel for the appellant Mr.R.L.Mehta, pointed out at the outset that in para 39 of the judgment there appears to be a mistake in calculation. The amount after proper calculation would come to Rs.7,71,655.00 instead of Rs.6,08,105.50 paise. Thus according to Mr.R.L.Mehta, if this mistake is rectified and this amount of Rs.1 lakh and odd is added as income then the appellant’s alleged disproportionate amount would get reduced. Similarly, there appears to be omission in the inclusion of the income of the amounts as mentioned in items No.6 and 17 of the charge sheet. If the amounts against items No.6 and 17 which have been omitted to be included as income are added then there would be further reduction of Rs.49,630.00 from the disproportionate amount. Thus the impugned judgment suffered on these accounts firstly for wrong calculations and secondly by committing to include the incomes of two items. As a result a total sum of Rs.2,13,180.00 could not be included in the income of the appellant. Once the calculations are rectified, the income that the appellant has to explain would get reduced to Rs.4,86,820.00 . Mr.S.Lal, counsel for the respondent fairly conceded that amount against item No.6 amounting to Rs.l9,630.00 and item No. 17 amounting to Rs.30,000.00 as depicted in the charge sheet have not been taken note of by the Special Judge. He also conceded that there appears to be error in mathematical calculations in para 39 of the judgment. Totalling of these amounts mentioned in para 39 of the judgment would be Rs.7,71,655.00 instead of Rs.6,08,105.56 paise. Hence, admittedly there appears to be mistake of calculation in para 39 of the judgment. In view of these admitted facts, it can easily be said that the Trial Court by mistake omitted to include the income amounting to Rs.49,630.00 against item No.6 and 17 of the charge sheet and miscalculated the amount in para 39 of the judgment. There is thus apparent mathematical error in calculations. If calculated correctly it would work out to Rs.7,71,655.00 . Taking these factors into consideration the alleged disproportionate assets of the appellant would get reduced to Rs.4,86,820.00 as against Rs.7 lakhs as mentioned in Para 86 of the impugned judgment. Accordingly, in view. of the above discussion, para 86 would stand modified. The appellant had to account for Rs.4,86,820.00 instead of Rs.7 lakhs.
(7) In order to account for this amount of Rs.4,86,820.00 the appellant’s defense was that he had sold his Jallandhar house to one Mr.Kuldeep Singh Sehgal. The said Mr.Sehgal gave him advance of Rs.7,50,000.00 on 1st October,1985. This advance was towards the sale of his house under an agreement of sale. This house was under the tenancy of Shri C.L.Laroya. After the agreement to sell the appellant attorney the tenancy in favour of Mr.K.S.Sehgal by writing a letter in this regard to Mr.C.L.Laroya. Mr.Laroya pursuance to the said attornment started paying rent w.e.f. 1st October, 1985 to Mr.K.S.Sehgal. He paid rent to the appellant only upto 30th September, 1985.
(8) During investigating the Investigating Agency recovered the following documents namely (1) sale agreement, (2) counter-part of the agreement and (3) letter of attornment. These were seized by the respondent from Mr.C.L.Laroya and Mr.K.S.Sehgal. These documents were, therefore, relied by the prosecution and filed alongwith the report under Section 173 Criminal Procedure Code . in the Court of Special Judge. Prosecution filed as many as 182 documents in compliance to the provisions of Sub Section 5 of Section 173 Criminal Procedure Code . These documents thus formed part of the charge sheet. Mr.Mehta contended that nowhere it was stated by the Public Prosecutor that the genuineness of any of these documents filed with the charge sheet was doubted or under dispute, rather Public Prosecutor made a statement in the Court that he was relying on these documents and insisted the appellant to admit or deny the same. In accordance with Column 3 of the Charge sheet reliance had been placed on these documents by the prosecution. In the list of documents filed all these documents figured. These documents were got admitted from the appellant by the prosecution.
(9) The question for consideration is whether these documents which formed part of the charge sheet and relied by the prosecution and on which no reservation regarding its genuineness was made by the prosecution could be admissible in evidence without proof? Is the provisions of Section 294 Criminal Procedure Code . applicable to the facts of this case? To determine these questions, reference can be had to Section 294 Criminal Procedure Code ., which is reproduced as under : Section 294 Criminal Procedure Code .
294.(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2)The list of documents shall be in such form as may be prescribed by the State Government.
(3)Where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry, trial or other proceedings under his Code without proof of the signature of the person to whom it purports to be signed: PROVIDED that the Court may, in its discretion, require such signature to be proved.
(10) Before dealing with legal aspects of the matter, it must be kept in mind that the original sale agreement and letter of attornment were seized by the prosecuting agency from Mr.Sehgal and Mr.C.L.Laroya respectively. It was only counter part of the sale agreement which was recovered from the possession of the appellant. The original documents were seized during investigation. Public Prosecutor while placing reliance on these original documents got direction from the Court to the appellant to admit and deny the same. On the insistence of Public Prosecutor, the appellant admitted and denied these documents on 28th August,1989. On 3rd September,1991 some of these documents were again got admitted. On 10th March,1992 Public Prosecutor made a statement that he tendered in evidence these admitted documents. Hence the admitted documents were exhibited as EX.P1 to P.181. These documents were in fact owned by the Public Prosecutor as his documents. Public Prosecutor at no stage pointed to the Court or to the appellant that he doubted or disputed the genuineness of any of these documents, rather he tendered EX.P.1 to P.181 in evidence and placed complete reliance on the same. It is in this backdrop we have to consider and appreciate the provision of Section 294 Criminal Procedure Code .
(11) Sub Section 3 of Section 294 Criminal Procedure Code . clearly envisage that the documents produced by the prosecution on being admitted by the accused became authentic and the contents thereof became substantive evidence. In this case as discussed above, since documents were produced and relied by the Public Prosecutor as his documents, therefore, genuineness of the same could not be said to be in dispule. Such documents had to be read in evidence by the Court without proving the signatures of the person by whom it purported to have been signed. However, if the Trial Court, at any stage, found that mis-carriage of justice was going to. take place on account of these documents being admitted without formal proof, then he could suo moto call the attesting witnesses of the sale agreement and the purchaser Mr.Kuldeep Singh Sehgal. Having not done so, the Trial Court could not draw presumption that genuineness of these documents was in doubt. Hence, the observations of the Trial Court in this regard are not supported from the evidence on record. In fact the Trial Court fell in error in presuming and concluding in his judgment that the genuineness of these documents was doubted by the prosecution. In fact such an observation is not borne out from the testimony of any of the witness or from the statement of Public Prosecutor rather it appears to be the pigmentation of Court’s own imagination. Trial Court drew this conclusion even though that was not the case set up by the Public Prosecutor. Observations in this regard are quite contrary to the facts placed on record. In view of the admitted facts, the Trial Court ought to have held that provision of Sub Section 3 of Section 294 Criminal Procedure Code . are applicable. Similar point came up before the Full Bench of the Allahabad High Court in the case of Saddiq & ors. Vs. State, 1981 CRL.L.J. page 379 where after analysing the provisions of Section 294 and in particular to Sub Section 3, the Court opined that under Sub Section 3 of Section 294 an injury report filed by the prosecution under Sub Section I of Section 294 may be read as substantive evidence. If the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under Sub Section I of Section 294 it amounts to an admission that the entire is true or correct. It does not only amounts to admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Similar view was expressed by the Bombay High Court in the case of Shaikh Farid Hussainsab Vs. State of Maharashtra, 1983 CRL.L.J. page 487. In the present case also, admittedly the documents EX.P1 to P.181 were filed by the prosecution under Sub Section I of Section 294 Cr.P.C. each of such document was included in the list of documents relied and filed by the prosecution. The Public Prosecutor called upon the appellant to admit or deny the same. Hence, those documents after having been admitted by the appellant became authentic and contents thereof became substantive evidence.. Ex.P.174 fully establish that a sale agreement was executed between the appellant and Shri Kuldip Singh Sehgal regarding the sale of his house at Jallandhar. That Mr.Sehgal had paid a sum of Rs.7,50,000.00 as advance to the appellant on 1st 0ctober,1985. The letter of attornment EX.P.111 by the appellant to his tenant Mr.C.L.Laroya further fortifies the stand of the appellant regarding the sale of his house and handing over the symbolic possession of that property to Mr.Sehgal. Public Witness .3 confirmed that he paid the rent to the appellant only upto 30th September,1985 and w.e.f. 1st October,1995 it was paid to Shri Kuldeep Singh Sehgal. This fact is further corroborated by the testimony of PW.34 Shri Charanjit Singh who deposed that the appellant received Rs.7,50,000.00 from Shri K.S.Sehgal under the sale agreement Ex.P.174. The purchase of stamp paper for this agreement by the appellant is corroborated by the testimony of Public Witness .19 Shri Rakesh Sharma. He by his testimony refused to yield to the suggestion of the prosecution that stamp paper for sale agreement was anti dated. Rather he struck to his version that stamp paper was sold on the date given on the paper and it was sold to the appellant. His testimony clearly establish that stamp paper purchased from Public Witness .19 was genuine and not anti dated. At no stage, the prosecution doubted the genuineness of the stamp paper purchased by the appellant. It doubted the genuineness of the stamp paper purchased by Mr.Sehgal with which we are not concerned. Hence, the observations of the Trial Court in this regard are not only erroneous but based on no evidence at all.
(12) MR.S.LAL, counsel for the respondent in order to counter the arguments of Mr.R.L.Mehta placed reliance on the observations of the Trial Court and in particular where Trial Court observed that “prosecution had been disputing the genuineness of the documents produced by the accused during investigation, hence the admission of these documents by the accused had no consequences”. Further that “since these documents were produced by the accused hence its admission would not attract the inference of its genuineness”. Relying on these observations, Mr.Lal contended that since these documents were of the appellant hence advantage of Sub Section 3 of Section 294 Criminal Procedure Code . could not be taken by the appellant. I am afraid this argument of Mr.Lal and for that matter the observations of the Trial Court are contrary to the facts on record. There is not an iota of evidence to prove that the documents EX.P.1 to P. 181 were produced by the accused or that prosecution doubted .the genuineness of the same. In the absence of any such evidence the inference drawn by the Trial Court can be said to be against the facts and the law and hence not sustainable. Further observation of the Trial Court that these documents could not be called prosecution’s documents or the burden of proof shifted to the accused or that he failed to discharge the same are nothing but the pigmentation of his own imagination. In other words these observations can be nothing but surmises and conjectures without any substance. Since these observations are not based on facts placed on record hence reliance on these observations by Mr.Lal is mis- placed. He cannot take any advantage on the basis of the observations of the Trial Court. He can succeed or fail on the basis of evidence produced by the prosecution. The evidence produced by the prosecution does not support these observations of the Trial Court hence Mr.Lal cannot put into his aid these observations which are not based on the material placed on record.
(13) The Trial Court fell in error in concluding that the appellant could not substantiate his plea on the basis of the documents produced by the prosecution. In fact, the documents produced by the prosecution and in particular exhibit P.174, 175, 111 amply prove the case of the appellant that he entered into a sale transaction of his house with Shri Kuldeep Singh Sehgal. And with effect from 1st October,1985 Shri Kuldeep Singh Sehgal became the owner of the said house. That he received Rs.7,50,000.00 as advance from Mr.Sehgal pursuance to the said sale agreement. Taking this amount into consideration the appellant fully accounted his income. He disprove by the documentary evidence that he had any disproportionate income. It was wrong for the Trial Court to infer that the appellant failed to substantiate his income. The Supreme Court in the case of Ravindra Kumar Dev Vs. State of Orissa, while laying down the cardinal principles of criminal jurisprudence observed that onus lies affirmatively on the-prosecution to prove its case beyond reasonable doubt. It cannot derive any benefit from defense version while proving its case. In the case in hand, the mere fact that the appellant did not adduce any evidence was no ground to infer that appellant failed to prove his income nor it can be said that prosecution succeeded because accused failed to establish his defense. In view of the fact that the documents produced by the prosecution establish the case of the appellant, it was not necessary for him to have lead any evidence. From the testimony of the prosecution witnesses read with the documentary evidence produced, the defense of the appellant was established beyond reasonable doubt that he had received Rs.7,50,000.00 as advance against the sale of his house. In fact the Supreme Court in the case of Trilok Chand Jain Vs. State of Delhi, has clearly laid down that the accused may refute the presumption by showing a mere preponderance of probability in his favour. It is not necessary for him to establish his case beyond a reasonable doubt In that case in hand from the documentary evidence placed on record, the appellant has not only established the preponderance of probabilities but the truth of his defense.
(14) Reliance by Mr.Lal on the. testimony of Public Witness .18 is unfortunate. Public Witness .18 deposed about the sale of stamp paper with regard to the sale agreement between Shri Kuldeep Singh Sehgal and J.K. & Co. dated 28th September,1995. Neither the sale of that stamp paper exhibit Public Witness .18/A & Public Witness .18/B nor the sale transaction between Mr.Kuldeep Singh Sehgal and J.K. & Co. had anything to do with sale agreement entered between the appellant and Shri Kuldip Singh Sehgal. Mr.Lal cannot take advantage of the testimony of Public Witness .18 because neither Shri Kuldeep Singh Sehgal nor any member of the J.K. & Co. or Mr.Jain to whom alleged document exhibit Public Witness .18/A & Public Witness .18/B were sold had been produced in the witness box. Their statements were not recorded before the Court nor their statements under Section 161 were recorded. So much so this circumstance was not even put to the appellant when he made a statement under Section 313 Criminal Procedure Code . Therefore, this circumstance that Mr Jain purchased the stamp paper and got it anti dated from Public Witness .18 cannot be relied nor could have been taken into consideration for the reasons stated above. The Supreme Court in umpteen number of cases has held that the circumstance which is not put to the accused cannot be used against him. This fact having not been put to the appellant when he appeared cannot be used against him. Therefore, the Trial Court committed error in using this circumstance against the appellant.
(15) Lastly Mr.Mehta’s contention that prosecution itself brought on record that when the raid was conducted the appellant was residing in his brother’s house. In the inventory of the articles prepared, prosecution has not indicated about those articles belonging to his brother in whose house appellant was residing. In fact number of articles seized belonged to his brother. Appellant was residing with his brother on temporary basis. In the absence of details, the inventory of the articles appeared to be vague. Be that as it may and if this argument is not accepted still the fact remains that the prosecution by its oral and documentary evidence has proved the sale agreement and the letter of attornment. Relying on the same lend to only one irresistable conclusion that the appellant has been successfully accounted for the assets in his possession and also the source form which he derived the same. Therefore, on the basis of the oral and documentary evidence placed on record, it can safely be concluded that the appellant was not in possession of property disproportionate to his known source of income.
(16) In view of my above discussion, I am satisfied that the appellant has been able to prove that the explanation given by him was both probable and reasonable. To my mind, prosecution miserably failed to prove affirmatively as to in what manner the amount was mis-appropriated and also failed to establish that the amount in the hands. of the appellant was disproportionate to his known source of income. Such proof is wholly lacking in this case as the appellant has given a reasonable explanation, therefore, to my mind, the Trial Court fell in error in drawing any adverse inference against the appellant.
(17) For the reasons stated above, the appeal is allowed. The impugned judgment is set aside. The conviction and sentence imposed on the appellant are set aside and be is acquitted of all the charges framed against him.
