JUDGMENT
G.K. Sharma, J.
1. This appeal is directed against the judgment dated 5-11-81 by which, the Special Judge, A.C.D. Cases Kota convicted the appellant Under Section 5(l)(c) read with Section 5(2) of the Prevention of Corruption Act and sentenced him to two years’ RI and a fine of Rs. 15,000 in default of payment of fine, to undergo one year’s RI.
2. In the year 1971 a written report was submitted to the Chief Minister, Rajasthan State, Vigilance Commissioner, Director of Public grievances, I.C. Corrupt and the Addl. S.P. (Corruption) and Income Tax Commissioner by one Badri Lal. On this report some enquiries were made by the Anti-Corruption Department and after completing that enquiry the Police registered the case against the appellant on 13-9-73 and ultimately submitted the challan in the year 1978.
3. According to the prosecution case appellant Tikam Lal and his family members had some property and on investigation it was found that they possessed property worth Rs. 56, 910/-. This property was with regard to the period from 1-8-1959 to 11-12-72. It was also found that Chandra Kanta wife of the appellant during this period received certain amount by way of the house-rent, income from tailoring, loan from Co-operative Bank, loan from Hari Shankar and Sardar Mal. Thus, a sum of Rs. 29,064/- was received by Mst. Chandra Kanta wife of the appellant. After adjusting this amount it was found that the appellant could not satisfy the Police Department about the assessment at Rs. 27,846/-. After completing the investigation of this case and taking into account the income of the wife Smt. Chandra Kanta it was found that the appellant had disproportionate asset and in view of his income the appellant could not satisfy the Police he was prosecuted under Prevention of Corruption Act.
4. The learned Special Judge framed charge against the appellant: Under Section 5(1)(e) read with Section 5(2) of P.C Act. The appellant did not plead guilty and claimed trial. He has denied to have the property worth Rs. 27,846/-as disproportionate estate. The learned trial Judge did not agree with the contention of the appellant and after concluding the trial found that the case has been established against him and he was found guilty of the charges levelled against him and has been sentenced as mentioned above
5. The learned Counsel for the appellant against that the approach of the learned trial Judge is an erroneous one with regard to this charge. The appellant has been charge-sheeted with this allegation that he had disproportionate asset with him. The period which was treated as check period was from 1-8-1959 to 31-12-1972. During this period what ever asset the appellant received and found with him at the time of checking is to be proved by the prosecution that this property could not be acquired by the appellant from his income. Unless it is established that during this check period the income of the appellant is such and such, the expenditure of the appellant is such and the balance of the saving of the amount is such and such only, it cannot be said that after taking into account the income and expenditure of the appellant the property in his possession is of more value than the amount which could be with him as a saving. If the property is of more value than what he could save during this check period then certainly the property would be disproportionate property. Therefore, it was the duty of the prosecution to prove the income of the appellant during the check period, expenditure of the appellant during this period and the net saving which could be after mitigating the expenses remained with him. If it can be established that the balance amount is so meagre that he could not purchase or invest the amount for the purchase of his plot in question, for the construction of the house, for the purchase of the scooter then certainly it would be persumed that the appellant had some other source of income in order to meet these expenses. This is the principle of approaching in a case of disproportionate asset. But, in the present case what I find that the prosecution did not proceed with these principles. I have no hesitation to say that the investigation of this case was also not done properly. Similarly, the learned Special Judge did not approach with this case properly and did not conclude this case keeping in mind the principles which are to be considered in a case of disproportionate estates. From the very beginning two years have been taken by the Police Department to register the case. Badri Lal sent a written complaint to the Chief Minister, Rajasthan, ACD and other officers. For complete two years the Police took time for enquiring about the correctness of this report and after a period of two years i.e. on 13-9-73 the case registered against the appellant. Then they investigated the matter and took about more than 4 years in filing challan and in the year 1978 the present challan was submitted. Then another factor which is to be noticed here is the statement of Badri Lal informant Ex. P 1. He has been examined as a prosecution witness and what he has stated is that he admits his signature on the report Ex. P 1 was asked to sign on a blank paper. The Inspector Shop Department came to him and told that Tikam Lal has been transfered from here and some welcome card is to be given to him, so he was asked to sign on a blank paper. He has not stated in his statement that he made the complaint Ex. P 1. No doubt he has admitted his signature on this complaint Ex. P 1 but this complaint was not read over to him. Badri Lal has not been declared hostile even by prosecution. So the statement of Badri Lal transpires. It shows that with some ulterior motive somebody has played mischieve. A complaint has been drafted by some one else and Badri Lal was only made a tool to that complaint.
6. Another important aspect is that this complaint is a typed complaint and in the end it has been written PRARTHIGAN. It means that this complaint was typed and prepared on behalf on number of petitioners and under word “PRARTHIGAN” there is no signature but the signature is on the left side of this written application. This also indicates that without explaining what has been written in the complaint Ex. P.1 Badri Lal was asked to sign it. Either the statement of Badri Lal is correct that his signature on a blank paper has been obtained or if his signature have been obtained after typing this complaint then it is definite that this complaint was not read over to Badri Lal before putting his signature. Apart from this there are so many signatories on this report but the prosecution has not produced any one of those signatories except Badri. Badri Lal has not supported the case of the prosecution and I have no hesitation to say that Badri Lal completely falsified the complaint. In such circumstances it was the duty of the prosecution to have examined other signatories of this complaint Ex. P1. But none of them has been examined and the best reason if known to the Investigating Officer. Therefore the entire case has been connected by somebody else in the name of the signatories who have not been examined except Badri Lal and who has not supported the prosecution case. This circumstances is sufficient to throw the entire case of the prosecution.
7. The entire record has been perused. The case of the prosecution is that it was found that Tikam Lal and his family had an asset worth Rs. 56,910/-. The learned trial Judge found that a sum of Rs. 3,573/- being loan amount taken by Tikam Lal has been returned by him. So after ‘deducting this amount the trial Judge found that the asset were worth Rs. 53,337/-. This estate includes the cost of the plot No. 214 and the amount of construction spent for constructing the house on this plot and a sum of Rs. 3500/- the cost of the scooter. The case of the prosecution is that the plot No. 214 is in the name of Mst. Chandra Kanta wife of accused-appellant. The house constructed on this plot is in the name of Mst. Chandra Kanta. So the entire asset which was found in possession of Tikam Lal is in the name of Mst. Chandra Kanta except the Bajaj scooter. Regarding this scootor there is ample evidence to prove that this scooter was purchased by the accused from the amount given by his father Shri Onkar Lal DW 2. He has been examined as defence witness and be has stated that he had given Rs. 3,500/- to Tikam Lal to purchase the scootor and after reading the entire statement of Onkar Lal. I found that there is nothing to disbelieve his testimony. He was once a Government Servant He received some gratuity amount in the year 1958. He had bank account also. There is no unnaturality in this statement. The father certainly will pay money to his son to purchase the scooter and the son need not to return this amount. So the purchase of scooter has been fully explained. About the purchase of the plot No. 214 and constructing house over it, was been proved by Mst. Chandra Kanta. She has been examined as DW 4 and she has explained bow she purchased the plot. She gave detail about the loan takes by her from different persons for constructing this house. The accused has also examined Lalita Shanker DW3 and Ramswaroop DW 5 who have proved that they had advanced money to Smt. Chandra Kanta for constructing the house. There witnesses have been cross-examined by the prosecution and they have not been shattered at all. So it has been also established by the defence that what ever asset was found with the accused belong to wife Smt. Chandra Kanta. The accused is not the owner of the plot and the house, constructed over it. The point is that the Police has to prove the disproportionate asset with the accused. The allegation about this disproportionate asset is the plot No. 214 and the house constructed over it. This fact has been disproved by the accused. The prosecution has completely failed to prove that the plot was purchased by Tikam Lal accused and the house was also constructed by him. On the contrary, the accused has proved beyond reasonable doubt that this plot was purchased by his wife Smt. Chandra Kanta and she constructed the house over it. So this plot and the house cannot be treated as the property of the accused. The plot was purchased for a sum of Rs. 7,700’-The house constructed, over it costs about Rs. 42,173/-. Thus the estate worth Rs. 49,837/- in not the estate of Tikam Lal. The purchase of scooter for Rs. 3,500/- has been explained by the accused. So there is complete false allegation that the accused had a disproportionate asset worth Rs. 53,337/-.
8. What argued that the purchase of the plot and construction over it in the name of Smt. Chandra Kanta it Benami transaction. So this property should be deemed to the property of accused Tikamlal, in this regard is to be seen as to what constitute benami transaction. Though no absolute formula can be laid down with regard to a benami transaction but there are some principles to constitute a benami transaction which could be kept in mind. These circumstances could be No. 1 the source from which the purchase money came in the hands of purchaser; (2) the motive if any, for giving the transaction a benami transaction; (3) the position of the parties i.e. the relationship between them is to be seen; (4) the conduct of the parties is to be considered in dealing the transaction; (5) the title is to be looked and the nature of the possession of the property after purchase is also to be considered. So these are few instances in order to have a guideline to consider whether a transaction is a benami transaction or not. If we apply these principles in the present case we find that there is no evidence from the prosecution to prove that the transaction of the plot was done by accused TikamlaL There is no evidence 10 prove that the house was constructed by Tikam Lal accused. There is no proof that after the construction of the house accused Tikam Lal is managing the house. Even the prosecution did not care to take the title-deed of the house. If the title deed would to with Tikam Lal then some presumption can be drawn but in the present case the title-deed was not even demanded by the prosecution. It is correct that the purchaser of the plot is the wife of the accused Tikam Lal and mere relation of husband and wife does not prove the transaction to be a benami transaction. From the evidence of the defence witnesses it is established beyond reasonable doubt that the purchase money of the plot was paid Smt. Chandra Kanta. The house over this plot was constructed by her after taking loan from certain persons who have appeared in the witness-box and corroborated the statement of Smt. Chandra Kanta. Apart from this it has been proved by her statement corroborated by other witnesses that Chandra Kanta had her independent source of income. She earns from tailoring. She took some loan and constructed the house over this plot and this house was rented to other persons and thus she received rental income also. Even the trial court in the judgment have accepted that the income of Smt. Chandra Kanta is Rs. 36,895/-, So it is incorrect to say that this house was constructed from the income of Tikam Lal and was shown as a benami house in the name of his wife. On the contrary, it has been established beyond all reasonable doubt that this plot was purchased by Smt. Chandra Kanta out of her own source of income and the loan taken from certain persons. I am supported with the decision in the case of Krishnanand Agnihotri v. State of Madhya Pradesh 1977 Supreme Court 796. In this case their Lordships of the Supreme Court have observed as under:
The burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that act. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick well which cannot be easily pierced through. But such difficulties do not relieve the person ascerting the transaction to be benami of the serious ones that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act an legal grounds established by evidence. In the instant case though the prosecution alleged that certain amounts lying in the name of accused’s wife S was an asset belonging to the accused, no evidence at all was led on the side of the prosecution to show that the monies lying in fixed deposit in her name was provided by the accused. How so ever strong may be the suspicion of the Court in this connection, it cannot take the place of proof. Beyond raising suspicion and doubt in the mind of the Court, the prosecution has not been able to adduce any legal evidence of a definite character which would establish the benami character of this bank account. On the contrary, the evidence led on behalf of the accused shows that S had means of her own.
9. Thus, keeping in view the decision of Krishmand’s case (supra) and the principles which have been laid by Hon’ble the Supreme Court in the case of Jaidayol Poddar v. Mst Bibi Hazra and Ors. 1974 SC 171, it is clear that the transaction with regard to the plot and the construction of the house is not a benami transaction in the name of Mst. Chandra Kanta but it is the proper purchased & constructed by Smt. Chandra Kanta from her own income after discussing entire aspect and the principles I found that the prosecution has failed to prove that the accused has advanced money for the purchase of the plot or for the construction of the have or that it was a benami transaction in the name of Smt. Chandra Kanta. Apart from this there is no evidence showing the income of the accused and the expenditure incurred by him on his family and the amount of the saving. This should have been proved by the prosecution. But this aspect was not at all considered. Therefore, the learned Special Judge has not appreciated what is to be proved in a case of disproportionate assets. The approach of the learned Special Judge was entirely erroneous approach and without understanding the ingredients which are to be proved in such offence and he has wrongly found the appellant guilty of this offence.
10. As a result, the appeal is accepted. The appellant is not found guilty of the offence under Section 5(1)(e) read with Section 5(2) Prevention of Corruption Act and he is acquitted. The appellant is on bail. His bail-bonds are cancelled and he need not surrender.