Judgment. 1. These two appeals arise out of C.C. No. 40 of 1977 on the file of the Special Judge for S.P.E. Cases, Hyderabad, in which the appellant in the former was tried for an offence under section 5 (1) (e) read with section 5 (2) of the Prevention of Corruption Act and was convicted and sentenced to undergo imprisonment till the rising of Court and also to pay a fine of Rs.40,000 fin default to undergo rigorous imprisonment for one year and nine months. The accused preferred the former appeal questioning the correctness of his conviction and also the sentence of fine imposed against him. The State, represented by the Special Police Establishment, preferred the later appeal complaining that the minimum sentence of one year imprisonment provided for the said offence should have been at least imposed against the accused. 2. The prosecution case in short is that the accused while working as an Assistant Medical Officer, Class II, in Railway Department, was found to be in possession of Rs.46,456 77 p. and could not satisfactorily account for the sources for acquiring such disproportionate assets. The prosecution case is confined to the check period from 1st January, 1969 to 12th April, 1972 on which later date, the residential quarter of the accused at Rajahmundry was raided and searched during investigation. The prosecution case proceeds on the basis that at the commencement of the check period i.e., on 1st January, 1969, the accused was having assets of the value of Rs.66,333-60 p. and at the close of the check period, he was found to be in possession of assets of the value of Rs. 1,42,773-11P. and during that check pediod The acquired to the tune of Rs.76,439-51 P. The prosecution case is that during the check period, his total income from known sources was Rs.52,646-80 P. and his total expenditure is Rs.22,664-06 P. leaving a saving of only Rs.29,982-74 P. The prosecution, therefore, claimed that after deducting the aforesaid saying or Rs.29,982-74 P. the accused has come into possession of disproportionate assets to the extent of Rs.46,456-77 p.; for which he could not satisfactorily account. The Special Judge found the diproportionate assets to be worth Rs.36,504-80 P. 3. The accused has given various explanations in proof of his defence which are detailed below. He was a Doctor in the Railways and private practice was not prohibited. The Special Judge found the diproportionate assets to be worth Rs.36,504-80 P. 3. The accused has given various explanations in proof of his defence which are detailed below. He was a Doctor in the Railways and private practice was not prohibited. Limited private practice is, in fact, permitted as can seen from Exhibit D-2 and rules 205 to 209 of the Indian Railway Medical Manual. The evidence of D.Ws. 8 and 9 who are working as Railway Guards and the evidence of D.W.10, a grocery merchant of Telgi is that of independent witnesses and has been wrongly rejected by the Special Judge. The investigation proceeded on a wrong assumption that private practice was not permitted to the accused and the accused is, therefore, prejudiced in his trial. The charge-sheet is filed, restricting the check period from 1st January, 1969 to 12th April, 1972. The accused joined the railway service on.1st December, 1955. Unless his total income and expenditure ever since he joined the service in railways is taken into account, one cannot properly arrive at the actual assets in his hands as on 1st January, 1969. In making the investigation limiting it to the check period, the accused has been prejudiced. At the time the accused was married on 7th July, 1957 to Smt. Shoba Das, D.W. 7, he was given a cash dowry of Rs.10,000 and his wife was given 25 tolas of gold. D. W.7 is an accomplished house-wife. She has known knitting, sewing, pointing, dollmaking, printing of sarees and screens, tailoring and embroidery. She was also good at preparing jams, jellies, bread and biscuits. She used to train persons who were approaching her and she was getting an annual income of Rs.1,000 on an average. They were having a small poultry and kitchen-garden and besides meeting their needs, they were able to earn; some money by selling chicken, eggs and vegetables. While augmenting their income, they were able to save in the expenses for running the house. A cash of Rs. 6,000 belonging to his maternal grand-mother and some gold jewels belonging to his sister Swapna Das were sent to him for safe custody by his father Dr. Indramohana Das (D.W. 1) respectively through Devarajan Das (D. W.3) and Dr. Babranjan Das (D.W.4), brothers of the accused. D.W.4 kept Rs.6,000 of his own money with the accused for safe-custody. 6,000 belonging to his maternal grand-mother and some gold jewels belonging to his sister Swapna Das were sent to him for safe custody by his father Dr. Indramohana Das (D.W. 1) respectively through Devarajan Das (D. W.3) and Dr. Babranjan Das (D.W.4), brothers of the accused. D.W.4 kept Rs.6,000 of his own money with the accused for safe-custody. Rs.4,000 deposited in the United Bank of India, Malda, is the money belong to D.W.2, the mother of the accused and not to the accused. Another Rs. 4,000 belonging to the widowed sister-in-law of the accused was handed over to him for safe custody through D.W. 5, another brother of the accused. 4. The major submission made by Mr. Padroanabha Reddy, learned Counsel appearing for the accused is that the accused, while working as a Doctor in the Railways, was entitled to private practice or at least to a restricted private practice. The following facts become material to appreciate this submission. The accused studied M.B.B.S., at Calcutta during the years 1948 to 1954 and worked as House Surgeon in N. R. Sarkar Hospital during the years’ 1954-1955. He was appointed as an Assistant Surgeon Grade-H in the Southern Railway in the scale of Rs. 200-300. He joined the service at Hubli on 1st December, 1955 till January, 1957. From January, 1957, till October, 1962, he worked in the Railway Hospital at Telgi in Karnataka State. He was retransferred to Hubli where he worked till September, 1963. During the period 1st June, 1963 to 30th September, 1964, he studied D.C.H. at Madras and was on earned leave from 1st October, 1964 to 23rd October, 1964 on the expiry of which he joined the Rajahmundry Health Centre on 4th November, 1964 as an Assistant Medical Officer, Class-II. He was incharge of the hospital as can be seen from the evidence of P.W. 29. As Medical Officer incharge of the hospital, his duties and responsibilities are the same as for a Divisional Medical Officer which are detailed in rule 204 of the Indian Railway Medical Manual. He was also functioning for some time as Assistant Medical Officer-incharge of a health unit whose duties and responsibilities have also been provided for under rule 204. He is not a Railway Doctor occupying any position in the administrative rank. He was also functioning for some time as Assistant Medical Officer-incharge of a health unit whose duties and responsibilities have also been provided for under rule 204. He is not a Railway Doctor occupying any position in the administrative rank. Rule 205 provides for a restricted private practice and permits the Assistant Medical Officers of the rank of the accused to collect some fees and they also provide how regarding such collections, the fees should at all be shared or how they should be shared in some proportion. Exhibit D-2 is a circular, dated l5th March, 1978 issued by the Divisional Medical Officer, Hubli. It gives a resume of the background in which a large number of vigilence cases came to be filed against the medical officers. We are in particular concerned with cases of unauthorised practice. It appears from this circular that prior to 1966, the Doctors serving the Indian Railways were allowed unrestricted private practice. The Second Pay Commission recommended in 1964 that private practice should be completely banned and instead the Pay Commission recommended payment of non-practicing allowance. The Railway Ministry, however, took a decision to permit the Doctors to do practice amongst the limited railway population and the Doctors should be paid a restricted non-practising allowance. The categories of cases coming under the private practice have been detailed in this circular. A total reading of this circular discloses that while allowing such restricted private practice, the Government expected the Doctors to maintain accounts and to make oversome portion of the income in favour of the Railway Department and the Doctors are expected to maintain accounts and diaries showing such income. The more relevant aspects of the circular is that private practice was not, in terms, prohibited, but, on the other hand, restricted private practice was, in terms, permitted. 5. D.W.8 was working at Rajahmundry as a Guard in the South Central Railway since 1962. He was the Vice-President of the South Central Railway Employees’ Sangh, Rajahmundry Branch, from 1973 and prior to that, he was an Executive Member in that trade union. His evidence is that during that period, the accused was treating some members of his family and it was usual for D.W. 8 to pay amounts varying from Rs.2 to 5 for such medical visits made by the accused. D.W.9 also worked at Rajahmundry as a Railway Guard from 1960 to 1974. His evidence is that during that period, the accused was treating some members of his family and it was usual for D.W. 8 to pay amounts varying from Rs.2 to 5 for such medical visits made by the accused. D.W.9 also worked at Rajahmundry as a Railway Guard from 1960 to 1974. He also gave evidence that the accused used to visit his house for treating his family members and he used to pay to the accused Rs.2 per such visit. D.W. 10 is a merchant and a residential of Telgi. He was knowing the accused from 1957 in which year the Railway Department opened a Health Unit at Telgi. There was no other Doctor available at Telgi and in the surrounding areas. The evidence of D.W.10 is that at the time the health unit was opened, the residents of the locality enquired the Medical Officers whether the local people can also expect medical aid and a Senior Medical Officer present on the occasion instructed the accused to give medical aid to the local people also. D.W.10 stated that the accused was found to be an efficient Doctor and, during these days, was earning more than Rs.500 per month from his private practice. D.Ws.8 to 10 are absolutely disinterested witnesses and have no reason to give any false evidence. The statements made by P.W. 36, the Investigating Officer, can now be referred to. He took the stand that private practice was prohibited from 1962 and relies on the income-tax returns Exhibits P-28 to P-34 filed by the accused to say that the accused could not have earned any monies by private practice. The failure on the part of the accused to disclose this part of the income is equally attributable to a desire on his part to avoid the payment of income-tax and a desire on his part not to share any part of such income with the Railway Administration. Exhibits P-28 to P-34 cannot, therefore, be relied upon to discredit the evidence of D. Ws. 8 to 10 or to discredit the version of the accused that he was also earning some money from private practice. To a specific question put to him with regard to Exhibit D-2, P. W. 36 took cover by saying that he did not see the circular at any earlier point of time and the accused did not show it to him. To a specific question put to him with regard to Exhibit D-2, P. W. 36 took cover by saying that he did not see the circular at any earlier point of time and the accused did not show it to him. He made a statement that as the accused has not maintained any register showing the several patients he treated, the accused would not have received any monies from his private practice. The learned Special Judge proceeded on the footing that private practice was permitted till 1962, but that it was totally prohibited from 1962. Exhibit D-2 referred to above does not reveal that at any point of time’ there was a total ban imposed by the Railway Department, prohibiting the private practice of the Doctors. The discussion made by the Special Judge in para. 19 or his judgments reveals that he paid no attention to Exhibit D-2 or to Exhibits P-64 to P-70 which are statements furnished by the accused in March, 1973 before the charge-sheet was filed against him. In Exhibit P-66, the accused was in fact giving explanation that he acquired some of the assets from his private practice money and house-visits money. In Exhibit P-68 also he stated that he acquired some of the assets mentioned thereon by utilising his salary, private practice and other income. In Exhibit P-70 statement as well, he was indicating that some of the assets mentioned therein were acquired from the monies be earned by his private practice. These various statements should at least have provoked P.W. 36 to direct his investigation to the period, if any, during which private practice was totally prohibited. He made no such effort and it is unfortunate that the accused should have been prosecuted at all for being found in possession of assets worth Rs. 36,504-80 P. which, according to the prosecution, are disproportionate to the known sources of the income of the accused. It is equally unfortunate that the Special Judge should have ignored this basic material which is in favour of the accused and to have convicted him for the offence in question. The check period can be taken to be roughly 40 months. Any Doctor, in-charge of a Railway Hospital, could easily have made that extra income which works out to an average of about Rs. 900 per month. The check period can be taken to be roughly 40 months. Any Doctor, in-charge of a Railway Hospital, could easily have made that extra income which works out to an average of about Rs. 900 per month. The cases which have been replied upon by the Special Police Establishment, are all cases concerning employees, who could not have earned any monies other than the salary and allowances payable to them. No useful purpose will, therefore, be served in making detailed reference to any of those cases. As has been observed by the Supreme Court in C.S.D. Swami v. The State1 “The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service.” The appellant in that case was working as a Director of Fertilizers and was found to be in possession of disproportionate assets to the extent of Rs.73,000 in cash and Rs. 18,000 by cheques for which he was not able to give any satisfactory explanation. Sajjan Singh v. State of Punjab1 is again a case where the accused was a salaried employee, being a Sub-Divisional Officer in the Irrigation Department. The evidence established disproportionate assets to the extent of Rs.53,000 for which the accused therein could not give a satisfactory explanation. Rameshwar Prasad v. State of Bihar2 is again a case where in respect of an Assistant Goods Clerk working in the Railways, disproportionate assets found with the accused have not been satisfactorily accounted for and he was only a salaried employee. In Krishnand Agnihotri v. State of Madhya Pradesh3 the excess of assets found with the accused was found to be 10% of the total receipts from his known sources of income and the Supreme Court held that having regard to the smallness of the excess, the presumption of guilt need not be drawn against the accused in that case. We are dealing in this case with an employee who, besides his regular salary, was also entitled to receive monies from private practice. We are dealing in this case with an employee who, besides his regular salary, was also entitled to receive monies from private practice. The rigid approach which should be made in dealing with cases against employees depending only on salary cannot be made against categories of employees similar to the accused who are permitted not only to draw their salaries, but also to receive payment for permitted private practice. It is in this context that the grievance of the appellant that the prosecution deliberately fixed the check period from 1st January, 1969 to 12th April, 1972, and that it has prejudiced him assume importance. By 1st January, 1969, the accused had already been in service for 13 years and even, according to the finding of the Special Judge, private practice was permitted for a period of six years i.e., till 1961. He did not record any finding as to what his assets were as on 1st January, 1969. He merely accepted the version put forward in the charge-sheet that the accused was having assets of the value of Rs. 66,333-60 P. as on 1st January, 1969. There is every probability that the extra amount of Rs.36,504-80 P7 would have been existing with the accused even by 1st January, 1969. The failure on the part of the accused to have disclosed this income in his income in income-tax returns or to the Railway Department are not, by themselves, circumstances from which it can be inferred that he had come into possession of such assets otherwise than from his known sources of income. The Special Judge is not correct in respecting the evidence of D.Ws.8 to 10 that the accused was in fact having private practice nor is he correct in rejecting the explanation given by the accused that he was getting monies from his private practice as well. If the accused made an effort during trial do say that some of the monies found in his possession have come from various other sources, he cannot be convicted if some of the explanations given by the accused are found to be not true. In formulating his defence the accused was faced with the dilemma of avoiding a possible consequential departmental action against him or an investigation by the Income-tax Authorities into his assets or a conviction for the offence in question. In formulating his defence the accused was faced with the dilemma of avoiding a possible consequential departmental action against him or an investigation by the Income-tax Authorities into his assets or a conviction for the offence in question. If, as appears to be true, the disputed amount is attributable wholly or in part to his private practice, he cannot be convicted for the offence in question, whatever may be the consequences he may have to face from the Railways or from the Income-tax Departments. The accused has to be acquitted on the reasons given aforesaid. 6. There are a few other points for controversy which have been adverted to only to make the record complete. The accused married D.W.7 on 7th July, 1957. Both of them belong to kayastha community, though they belong to two different sub sects in that community. According to the statement of the accused, he was given a cash dowry of Rs.10,000 and D.W.7 was given 25 tolas of gold when they were married, D.W.1, the father of the accused, D.W.7, the wife of the accused and D.W.6, the brother of D.W.7 have also sworn to the fact that in fact that dowry amount was paid to the accused and the 25 tolas of gold were given to D.W.7. The parties originally belonged to Bangladesh. They were uprooting from their homes in the wake of the partition of the country. The father of D.W.7 was owning 32 to 35 bighas of land in Bangladesh and the evidence of D.W.6 is that in the wake of partition, his father sold away the properties and migrated, to West Bengal with cash and acquired properties concerning which he has filed various tax receipts as evidenced by Exhibits D-17 to D-24. The father of D.W.7 was working as “A Grade Railway Guard”. He died leaving D.W. 6, the only son and two daughters including D.W.7. A payment of dowry of Rs.10,000 and a provision of 25 tolas of gold to D.W.7 when she was married to the accused when the accused was a qualified Doctor is very probable, having regard to the fact that both the parties belong to the Kayastha Community of Bengal. A payment of dowry of Rs.10,000 and a provision of 25 tolas of gold to D.W.7 when she was married to the accused when the accused was a qualified Doctor is very probable, having regard to the fact that both the parties belong to the Kayastha Community of Bengal. The prosecution wanted to make it appear that while the accused was working as a House Surgeon in the hospital at Calcutta, D.W. 7 was working as a Nurse and the accused married D.W.7 out of love and it was not an arranged marriage and the marriage was not even attended to by the other members of the two families. Certain witnesses belonging to West Bengal were examined during investigation, but they were not examined during trial. An adverse inference has, therefore, to be drawn that this part of the prosecution story is not true. The evidence which the accused has been able to adduce has exclusively established that D.W.7 never worked as a Nurse and the marriage of the accused with D.W. 7 is an arranged marriage and not a love marriage and it was attended marriage to by the members belonging to both the families and that the dowry was in fact paid. The explanation of the accused that Rs. 10,000 in cash was given to him as dowry in 1957 and 25 tolas of gold were given to his wife at the time of the marriage appears to be true or atleast probable and has, therefore, to be accepted in the alternative as diminishing the disproportionate assets, if the earlier reason given for acquitting the accused is not to be accepted. 7. The other explanations given by the accused depend only on the evidence of D.W. 1, his father, D.W. 2 his mother and D.Ws. 3. to 5 who are his brothers. They are naturally interested in coming to the succour of the accused and save him not only from his prosecution but also from any other consequential action that may be taken against the accused by the Railway Department or Income-tax Department. Their evidence has to be assessed in the context of the surroundings probabilities. There is no need for any of them to have entrusted their monies or jewelsto the accused for safe custody nor is there any need for D.W.2 to keep Rs.4000 in the name of the accused. Their evidence has to be assessed in the context of the surroundings probabilities. There is no need for any of them to have entrusted their monies or jewelsto the accused for safe custody nor is there any need for D.W.2 to keep Rs.4000 in the name of the accused. These explanations are unconvincing and the special Judge is right in disregarding these explanations put forwardby the accused. 8. The accused has come forward with an. explanation that D.W.7 was making on an average Rs.1,000 per year imparting tuitions, in various arts in which she was accomplished. D.W.8 has stated that he used to pay Rs.10 per month to D.W.7 for teaching knitting work to his daughter. D.W.9 made a vaguestatement that D.W.7 used to get some remuneration for giving such coaching. Such evidence, as is given by D.Ws.8 and 9 is veryvague and does not establish the case put forward by the accused that his wife was making an annual income of Rs.1,000 by interesting herself in such teaching activity. D.W.7, as thewife of the Railway Doctor, can be expected to have maintained her own dignity and it is not normal for people living in familiar quarters; to earn anything for imparting knowledge in such trades to the children of persons, living in the locality. There is no doubt some evidence to show that the accused was keeping a small poultry and was rearing a kitchen garden, but one cannot except the accused tohave made any income out of it. He might have raised some small poultry to feed the members of the family with the required” number of eggs or he might have raised the kitchen garden as a hobby and would have utilised those vegetables for domestic consumption and would not have derived any noticeable income either out of the poultry or kitchen garden. 9. During arguments, Mr. Padmanabha Reddy, has only questioned the correctness of the finding given by the Special Judge regarding four specific items. An amount of Rs.40 evidenced by Exhibit P-2 and another amount of Rs. 216-35 P. evidenced by Exhibit P-21 have been disallowed as receipts, despite those two documents. Having regard to the two documents aforesaid, the accused must be treated to have explained satisfactorily the receipt of these two amounts. An amount of Rs.40 evidenced by Exhibit P-2 and another amount of Rs. 216-35 P. evidenced by Exhibit P-21 have been disallowed as receipts, despite those two documents. Having regard to the two documents aforesaid, the accused must be treated to have explained satisfactorily the receipt of these two amounts. According to the accused, he was once deputed to the Baroda Staff College and there he received Rs.500 and at another time he was deputed to Bangladesh where he received a deputation allowance of Rs. 950 as evidenced by Exhibit P-153. As the accused is claiming these amounts consequent on his deputation, these claims appear to be reasonable and are, therefore, accepted and should go in reduction of the amount arrived at by the Special Judge as disproportionate assets. The total of Rs.1,706.35 P. covered by these four items will, therefore, have to be deducted from the total amount arrived at as disproportionate assets, after deducting there from also the sum of Rs. 10,000 as dowry and the cost of 25 tolas of gold belonging to D.W.7 The net amount should be arrived at in case the reasons given earlier for the acquittal of the accused are not to be accepted. 10. In the result, the conviction of the accused and the sentence imposed against him are set aside. Crl.A. No.1146 of 1978 is allowed acquitting the accused. The fine amount, if any, paid is ordered to be refunded to the accused. His bail bonds are cancelled. Crl A.No.369 of 1979, is inconsequence dismissed. D.V.P ----- Crl. Appeal No. 1146 of 1978, allowed; Crl. Appeal No. 369 of 1979, dismissed.