JUDGMENT 1. - Dr. Gurdas Mal Saluja has preferred this appeal against the judgment dated 23rd September, 1983, passed by the Special Judge, C.B.I, Rajasthan, Jaipur, whereby he has been found guilty of offence Under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 for short, "the Act" here in after) and sentenced to one year's rigorous imprisonment and a fine of Rs. 30,000/- and in default of payment of fine to further undergo one year's simple imprisonment. 2. The brief facts giving rise to this appeal are that Dr. Gurdas Mal Saluja appellant was appointed by the Western Railway on 16th May, 1261, on the post of Assistant Surgeon. He was, thereafter, promoted as Assistant Medical Officer, on 1st January, 1966. On a complaint of one Mishrilal, a railway employee alleging that the accused-appellant was demanding some illegal gratification, a trap was laid, and the appellant was trapped red-handed while accepting a bribe of Rs. 10/- from him (complainant), on 30th April, 1973. An FIR No. 10 dated 30th April, 1973, which is Ex. P. 159 was registered Under Section 161, IPC. On that date, the appellant was found in possession of assets worth Rs. 78,639. The Railway Board was approached for according sanction to prosecute the appellant in respect of the FIR aforesaid. The Railway Board did not accord sanction. As such, the CBI did not file any charge-sheet in respect of FIR No. 10, Ex. P. 159. 3. On 30th April, 1973, the CBI searched the house of Dr. Saluja, who was found to be in possession of property of total value of Rs. 1,22,544.40. Then, another FIR No. 30 dated 31st October, 1973, under Section 5(1)(e) read with Section 5(2) of the Act, which is Ex. P. 160, was registered. The CBI then investigated the matter and found that the total income of the appellant and his wife who was appointed as an LIC Agent, in Dec, 1962, came to Rs. 1,96,847.22. They also investigated about the expenditure of the appellant during the relevant check period starting from 16th May 1961 to 30th April, 1973. During investigation, they found that the total expenditure of the appellant during the check period was Rs. 1,27,329.04. 1,96,847.22. They also investigated about the expenditure of the appellant during the relevant check period starting from 16th May 1961 to 30th April, 1973. During investigation, they found that the total expenditure of the appellant during the check period was Rs. 1,27,329.04. When the search of the house of the appellant was made on 30th April, 1973, according to the prosecution, the appellant has found in possession of property of total value worth Rs. 1,22,344.40. Thus, according to the prosecution, the appellant was in possession of unexplained income, disproportionate to the known sources of his income to the tune of Rs. 53,026.25. Hence, after completing investigation, the CBI submitted a challan against the appellant in FIR No. 30 dated 31st October, 1973 Ex. P. 260, registered under Section 5(1)(e) read with Section 5(2) of the Act. 4. On 1st Nov., 1976, the Special Judge, CBI, Rajasthan, Jaipur framed charge against the appellant under sub-section 161, IPC; and 5(1)(d) read with Section 5(1)(e) & Section 5(2) of the Act. Against that order of framing charge, the appellant filed an application Under Section 482, Cr. PC before this Court, and this Court vide its order dated 8th December, 1978, passed the order that sanction for prosecution, was accorded only under Section 5(1)(e) read with Section 5(2) of the Act, and as such, the appellant could not be tried for offences under Section 161, IPC and under Section 5(1)(d) read with Section 5(2) of the Act. The appellant was, thereafter, tried by the Special Judge, CBI, Rajasthan, Jaipur for offence under Section 5(1)(e) read with Section 5(2) of the Act. 5. The accused-appellant pleaded not guilty and claimed trial, According to the appellant, his total income along with that of his wife during the check period started from 16th May, 1961 to 30th April, 1973. was Rs. 2,15,688.59. He also alleged that the value of total assets of his and wife's on 30th April, 1973, was only Rs. 99,991.43. He further alleged that the total expenditure as was mentioned by the prosecution, was incorrect and according to him, the actual expenditure was of Rs. 56,937.27. Thus, the expenditure shown by the prosecution, according to the appellant, exceeded the actual expenditure of the appellant by Rs. 70,391.32. Therefore, he alleged that he was not in possession of any unexplained disproportionate assets. 56,937.27. Thus, the expenditure shown by the prosecution, according to the appellant, exceeded the actual expenditure of the appellant by Rs. 70,391.32. Therefore, he alleged that he was not in possession of any unexplained disproportionate assets. To substantiate his contention, the appellant has submitted a written statement about his income, expenditure and assets as on 30th April, 1973. 6. The prosecution to substantiate the charge against the appellant, has examined 37 witnesses and produced a number of documents which have been marked as Ex. P.1 to Ex. P. 162. They appellant also has examined 10 witnesses in his defence and produced various documents which have been marked as Ex. D. 1 to Ex. D. 42. 7. After concluding the trial and perusing the documents filed by both the parties, the learned Special Judge, CBI, came to the conclusion that during the check period, the income of the appellant and his wife was Rs. 2,02,125.71. Thus, he did not agree with the contention of the prosecution that the income of the appellant during the check period was Rs. 1,16,847.22. The Special Judge also found in his judgment that total assets possessed by the appellant, were of the value of Rs. 1,20,228.59, and that the total expenditure of the appellant during the check period was fund to be Rs. 1,92,960.27. Thus, the learned Special Judge on the basis of his findings held that the accused was in possession of assets disproportionate to his known sources of his income, to the tune of Rs. 30,165.15. On the basis of his aforesaid finding, he found the appellant guilty of offence under Section 5(1)(e) read with Section 5(2) of the Act and sentenced him as mentioned above. 8. Lengthy arguments were advanced on behalf of both the parties, before this Court. 9. The learned counsel for the accused appellant has argued that the learned lower court has erred in assessing the total income of the appellant and his wife to the tune of Rs. 2,02,125.71. According to him, the appellant has proved by evidence which is unrebutted that the actual income was worth Rs. 2,15,688.59. It was also argued by him that the learned lower court has wrongly disallowed some amount to be included in their income. What are those items, would be discussed in this judgment, later on. 2,02,125.71. According to him, the appellant has proved by evidence which is unrebutted that the actual income was worth Rs. 2,15,688.59. It was also argued by him that the learned lower court has wrongly disallowed some amount to be included in their income. What are those items, would be discussed in this judgment, later on. It was then contended by the learned counsel that the finding on the expenditure of the appellant and his wife, has also been wrongly assessed by the learned lower court. Regarding certain other items which would be dealt with later on, the lower court has held unexplained. Similarly, the lower court has wrongly held about the value of assets in possession of the appellant as on 30th April, 1973. All these findings, according to the learned counsel, has been based by the learned Special on the evidence of P.N. Shukla, the Investigating Officer and one R.C. Chopra who was working in the technical wing of the CBI as a Junior Technical Officer. According to him there is no evidence to prove the appellant's income, expenditure incurred by him and the value of his assets, except the statements of P.N. Shukla and R.C. Chopra. He submitted that none of these two witnesses, had any personal knowledge about income, expenditure and the assets of the appellant. The learned lower court, according to him, has erred in believing these two witnesses and placing full reliance on their depositions. To the contrary the appellant has proved beyond reasonable doubt his case by the defence-witnesses and the learned Special Judge has erred in disbelieving the statements of the defence witnesses, argued the learned counsel for the accused-appellant. 10. I have gone through the entire evidence and the record of the case, and also considered the arguments advanced by both the learned counsel 1 have also considered the contention of the appellant which were made in his written-statement filed in the court. I would discuss the income of the appellant during the check period, total expenditure incurred by him, during this period and the value of the assets found in his possession on 30th April; 1973, separately. 11. The first question to be considered is about the income of the appellant during the check period from 16th May, 1961 to 30th April, 1973. 11. The first question to be considered is about the income of the appellant during the check period from 16th May, 1961 to 30th April, 1973. According to the prosecution, the income of the appellant and his wife who was appointed as an LIC- Agent, was Rs. 1,96,847.22. According to the appellant, his total income during the check-period was Rs. 2,15,688.59. Thus, there is a difference of Rs. 18,841.37, with regard to the income of the appellant. The appellant has given a detail of this difference, which was not considered by the prosecution, as well as by the learned Special Judge, CBI. The appellant, therefore, sought to add those items mentioned in his written-statement, to his income, Since they are in dispute, I shall deal with them in seriatim. 12. The first item of income, is a sum of Rs. 2,000/-. The learned Special Judge did not consider this item and he did not take it in the income of the appellant. This item has been shown in the balance-sheet which was submitted by the appellant's wife in Income Tax Department along with income-tax return. The relevant document is Ex.P 95-A. In this return and the balance-sheet, the appellant's wife has shown this amount of Rs. 2,000/- as cash, with her. The prosecution did not add this amount to the income of the appellant. The learned Special Judge has not given any reason in his judgment for disallowing this item. According to the appellant, his wife filed his return in the year 1968, for the first time, and that, in that return, she showed this amount of Rs. 2,000/- as cash with her. This amount was given to his wife by her father at the time of her marriage. Simply mentioning in the judgment by the Special Judge that all of a sudden in the year 1968, this amount of Rs. 2,000/- was shown as cash, is unbelievable, this is no ground. The trap was laid in the year 1973, and this amount was shown by Mrs. Saluja in the year 1968, in the return of income-tax. It cannot be said that this amount was shown in the return for some benefit in the subsequent years. No reason has been assigned by the learned Special Judge for disallowing this item to be included in the income of the appellant. Saluja in the year 1968, in the return of income-tax. It cannot be said that this amount was shown in the return for some benefit in the subsequent years. No reason has been assigned by the learned Special Judge for disallowing this item to be included in the income of the appellant. There is no evidence on behalf of the prosecution with regard to this item. Therefore, there was no justification for the learned Special Judge to have disallowed this item to be included in the income of the appellant. No reason has been shown by the learned Special Judge for rejecting the claim of the appellant with regard to this item. This amount of Rs. 2,000/-, therefore, should be added to the income of the appellant. 13. As regard by the learned counsel for the appellant, the second item of the income claimed by the appellant, relates to a sum of Rs. 10,000/-, and is said to have been the value of the gifts and clothes which were given to the appellant's wife, by the father of the appellant at the time of her marriage. To prove this item, the appellant has examined Niranjanlal DW 5 and Sardarilal Wadhwa DW 6. 14. I have gone through the statements of these defence witnesses. Niranjanlal DW 5, in his statement, has stated that the marriage of the appellant took place in the year ]959, and that, he attended that marriage. According to him, the father of the appellant, at the time of marriage, gave gold ornaments weighing about 50-60 tolas, who also gave about 21 sets of sarees to Smt. Saluja. He has further stated that the father of Smt. Saluja also gave about 25 tolas of gold, Rs. 5,000/- in cash, 31 sets of saree, bed, almirah, dinner-set etc. etc., who also gave clothes to Mr. Saluja. 15. Sardarilal Wadhwa DW 6 is the father-in-law of the appellant. In his statement,. he has Started that in the year 1959, the appellant was married to his daughter. and that, he gave gold ornaments in the marriage and spent about 15-20 thousand rupees. He has also stated that from the side of the boy, some gold ornaments, clothes etc. were given to his daughter. The father of the appellant gave near about 50-60 tolas of gold. He has given a detail of the gold ornaments, in his statement. and that, he gave gold ornaments in the marriage and spent about 15-20 thousand rupees. He has also stated that from the side of the boy, some gold ornaments, clothes etc. were given to his daughter. The father of the appellant gave near about 50-60 tolas of gold. He has given a detail of the gold ornaments, in his statement. He has also stated that he too gave about 25-30 tolas of gold to his daughter and a sum of Rs. 5,000/-in cash. Apart from these articles, his daughter also received a number of other articles as mentioned in the statement of this witness. It is material to mention here that Sardarilal PW 6 is an income-tax payer since long. Against this witness, there is no evidence on behalf of the prosecution with regard to the marriage of the appellant, gifts, cash, and the ornaments, which were given to Mrs. Saluja, by both, her father and father-in-law. The learned Special Judge has failed to appreciate the statement of these witnesses. He has simply mentioned that Niranjanlal is not a believable witness. He has not given any reason for discarding the statement of Niranjanlal. Similarly, for Sardarilal, he has mentioned that he being the father-in-law, his statement was not believable. This, in my view, is no reason, to discard his statement. When there is no evidence on the record relating to this item, on behalf of the prosecution, I see no reason to reject the claim of Rs. 10,000/- made by the appellant for adding this amount to his income. The learned Special Judge has erred in disallowing this item by not adding it to the income of the appellant. 16. Now, I take up the third item, as claimed by the appellant, which relates to a sum of Rs. 1500/-, being TA & DA earned by him during the years 1961 to 1963. In this regard, the contention of the appellant is that he used to have tour in connection with his official duty. During this period, he was paid some DA which he did not spend and the amount accumulated. This is his income. The contention of the prosecution is that at that time, the rate of DA per day, was Rs. In this regard, the contention of the appellant is that he used to have tour in connection with his official duty. During this period, he was paid some DA which he did not spend and the amount accumulated. This is his income. The contention of the prosecution is that at that time, the rate of DA per day, was Rs. 6/- only, and that, the appellant being a doctor is expected to have spent more amount than what he was getting as DA on his tea, food etc., and that, as such there was no question of saving any amount from the amount of DA received by him. The appellant says that during tour period, he being a Government railway employee, used to be provided free tickets for both the sides and further that, he used to be provided also tea and food etc. free of cost at various places of tour, by his friends and other employees of the railway, and so, he had no scope to expend any amount on tea and food etc. 17. I have considered this item also. I see no reason to disbelieve the contention of the appellant. No doubt, he used to get DA at rate of Rs. 6/- per day but, it is human courtesy that where an, officer goes on tour, the officers posted at that very place, entertain him and provide him tea and food etc. The appellant being a doctor used to go on tour, and it is a common courtesy that people or the officers who are posted there, would certainly show this much gratitude of serving him tea and food. And, for this petty amount of Rs. 1,500/-, I do not think that the appellant would give a false statement. To the contrary, there is no evidence on behalf of the prosecution in this regard. The only statement is that of P.N. Shukla, the Investigating Officer and Ramesh Chandra Chopra. These two witnesses have no personal knowledge about the manner in which the appellant used to travel and spend amount in the years 1961 to 1963. Their statement is only a eonjecture and their estimation. The only statement is that of P.N. Shukla, the Investigating Officer and Ramesh Chandra Chopra. These two witnesses have no personal knowledge about the manner in which the appellant used to travel and spend amount in the years 1961 to 1963. Their statement is only a eonjecture and their estimation. On their plea, these witnesses have stated that on tour, the appellant would have incurred this amount on his tea and food, but, they have no personal knowledge as to whether he had spent the amount of this item or he was entertained and obliged by the persons posted at those stations. So, the statements of those two prosecution witnesses are most unreliable and no reliance can be placed on them. The learned Special Judge has, therefore, erred in believing the prosecution witnesses who had no personal knowledge, and in disallowing this item of the appellant. Hence, in such circumstances, I find no justification for disallowing this item of the appellant, and hold that this item should be added to the income of the appellant. 18. Apart from these three major items, I find that there are a number of small items which have been disallowed by the learned Special Judge without any cogent reasons. If the above three major items are added to the income of the appellant, it would increase by Rs. 13,500/-. Apart from this, there is some other income also. So, the learned Special Judge has erred in not including this income to the income of the appellant. In his judgment, the learned Special Judge has not agreed with the contention of the prosecution about the income of the appellant. He himself found that the income comes to Rs. 2,02,125.71. So, according to him, the difference was of about Rs. 30,163.15. 19. The result of the above discussion is that the total income of the appellant during the check period from 16th May, 1961 to 30th April, 1973, must be taken to be Rs. 2,02,125.71 plus Rs. 2,000.00 plus Rs. 10,000.00 plus Rs. 1,500.00, totalling to Rs. 2,15,625,71. 20. I am now to consider the expenditure which must have been incurred by the appellant during the period from 16th May, 1961 to 30th April, 1973. According to the prosecution, the expenditure incurred by the appellant was Rs. 1,27,329.04. The appellant's contention is that the prosecution has shown more expenditure, and that they have wrongly added Rs. 2,15,625,71. 20. I am now to consider the expenditure which must have been incurred by the appellant during the period from 16th May, 1961 to 30th April, 1973. According to the prosecution, the expenditure incurred by the appellant was Rs. 1,27,329.04. The appellant's contention is that the prosecution has shown more expenditure, and that they have wrongly added Rs. 70,391.82 towards expenditure. According to him, the actual expenditure incurred by him during the check period was Rs. 56,937.22. I will deal with certain controversies with regard to expenditure incurred by the appellant during the check period. 21. The first item of expenditure relates to the expenditure incurred by the appellant on the treatment of his disabled son. The prosecution has alleged that the appellant during the check period spent Rs. 2,400/- on the treatment of his disabled son. This point has been discussed by the Special Judge in para 40 of his judgment. With regard to this expenditure, the appellant's contention is that he only incurred Rs. 600/- on the treatment of his disabled son. According to him, he himself being a doctor, used to provide him medicines etc., without purchasing them from the market. He was a Government servant, and so, his son was being treated free of charge, according to medical rules. The learned Special Judge has based his conclusion on the basis of the income-tax return. The reply of the appellant is that according to the IT Act, he was entitled to reimbursment of the amount of medicine or the amount incurred on the medical treatment of his dependents So, it was a statutory provision given to him by the Income Tax Department. It cannot be said that because the Income Tax Department has granted this statutory provision, he actually incurred these expenses on the treatment of his son. Therefore, the amount which was shown by the prosecution to have been incurred by him, is not correct. In this regard, I have perused the statements of the witnesses, and I see that the prosecution has failed to prove that the appellant purchased medicine for his disabled son to the tune of Rs. 24,00/-. The learned Special Judge in a very casual manner, has believed that a sum of Rs. 2,400/- had been spent by the appellant for the treatment of his son. 24,00/-. The learned Special Judge in a very casual manner, has believed that a sum of Rs. 2,400/- had been spent by the appellant for the treatment of his son. There is no justification to this conclusion, and I do not agree with the said finding of the learned Special Judge, who has wrongly added this amount to the expenditure of the appellant. 22. The next item of expenditure is with regard to expenses on education and dresses of his son, Praveen Kumar, by the appellant. This point has been discussed by the Special Judge in para 41 of his judgment. After going through that para of the judgment, I am of the opinion that without giving any reason, the learned Special Judge has disagreed with the contention of the appellant, holding that a sum of Rs. 1,661/- has been spent by the appellant on education, books, and uniforms of his son. There is no proof to this effect, and this item also wrongly added to the expenditure of the appellant. 23. The third item is with regard to newspapers and magazines purchased by the appellant. The contention of the appellant is that it was not correct that he spent Rs. 1,522/- on the purchase of newspapers and magazines. All this expenditure is on estimation. In para 42 of his judgment, the learned Special Judge has discussed it. He has believed the statements of P.M. Shukla and R.C. Chopra, who, on their estimation, have stated that the appellant being a doctor, a learned person, must have purchased newspapers and magazines to read. On such hypothecation, it cannot be believed that the appellant actually purchased newspapers and magazines and spent this amount, ft is on the record that at the time of the search, no bill with regard to newspapers or magazines, were found at the house of the appellant. No copy of newspaper or magazine was found in possession of the appellant when the house was searched on 30th April, 1973. To the contrary, the appellant has examined witnesses who have stated that the appellant used to read newspapers and magazines at the hospital, which were supplied to the doctors from the department. I see no reason to disagree with the contention of the appellant. To the contrary, the appellant has examined witnesses who have stated that the appellant used to read newspapers and magazines at the hospital, which were supplied to the doctors from the department. I see no reason to disagree with the contention of the appellant. There is no proof to this item also, by the prosecution; and the learned Special Judge also has further erred in disagreeing with this contention of the appellant. 24. The next item is with regard to expenses on cosmetics. The prosecution says that the appellant spent a sum of Rs. 6,780.00 on cosmetics. This point has been discussed by the learned Special Judge, in para 43 of his judgment, and while discussing, it has stated that he did not agree with the contention of the appellant that he had spent only Rs. 4,260/- on cosmetics during the check period. This was all guess-work of the learned Special Judge. There is no evidence on record to prove as to what amount had been spent by the appellant on cosmetics, and the learned Special Judge, according to his own conjectures and estimation, found that the appellant had spent about Rs. 5,760/- on cosmetics. I see no reason to agree with this finding of the learned Special Judge, that appellant has stated that he spent Rs. 4,260/- on this item, and there is no reason to disbelieve the contention of the appellant. Therefore according to the appellant, there is a difference of Rs. 2,520.00 as regards expenditure on this item, and according to the learned Special Judge, there is a difference of Rs. 1,500/- on this item. 25. After considering all the record of the case, I am satisfied that the learned Special Judge has committed error in regard to this item also. 26. The next item of expenditure is of Rs. 1017.95, with regard to expenditure incurred at the time of travelling in tour which includes the expenses of the appellant on food etc. I have discussed above with regard to this item and held that the learned Special Judge has erred in agreeing with the prosecution in this regard. So, this amount has been wrongly added by the prosecution to the expenditure of the appellant. 27. The next item is Rs. 8,500.00 which is with regard to expenses on the clothes of the appellant and his family members. So, this amount has been wrongly added by the prosecution to the expenditure of the appellant. 27. The next item is Rs. 8,500.00 which is with regard to expenses on the clothes of the appellant and his family members. In para 45 of his judgment, the learned Special Judge has discussed this item, where in, he has referred to the statement of P.N. Shukla PW 36. According to the appellant, he spent only a sum of Rs. 4,000.00, on this item. The learned Special Judge, after discussing the statement of P.N. Shukla and other defence witnesses arrived at the conclusion that during the check period, the expenditure incurred by the appellant alleged by him was only on the basis of his estimation. The learned Special Judge has held that during this period the appellant had spent a sum of Rs. 6,720.00 on this item. I do not see any justification for the learned Special Judge to arrive at this figure. What ever evidence in on the record on behalf of the prosecution, is the statement of P.N. Shukla PW 36 which has been believed by the learned Special Judge. The evidence of the appellant has been discussed, but has been incorrectly appreciated by the learned Special Judge. There is no justification to arrive at the figure that the appellant incurred Rs. 6,720.00/- on this item. Therefore, there is no reason to disbelieve the contention of the appellant to the effect that during the check period he spent only Rs. 4,000.00/- on the clothes of himself and other family members. The evidence is overwhelming to this effect that quite a large number of sets of clothes were given to Mrs. Saluja at the time of her marriage, and the appellant also was given clothes. Apart from this, it is not in the evidence that the appellant used to lead a luxurious life and used to purchase costly clothes. Therefore, the estimation of the learned Special Judge on this item has no basis. I, therefore do not agree with the finding of the learned Special Judge. In this view of the matter, the expenditure on account of this item by, the appellant during the check period, was only Rs. 4,000/-. 28. The next item relates to kitchen expenses. According to the prosecution during the period from 16th May, 1961 to 30th May, 1964, the appellant spent Rs. In this view of the matter, the expenditure on account of this item by, the appellant during the check period, was only Rs. 4,000/-. 28. The next item relates to kitchen expenses. According to the prosecution during the period from 16th May, 1961 to 30th May, 1964, the appellant spent Rs. 200/- on this item, and from 1st June, 1964 to 39th April, 1973 the appellant spent Rs. 300.00/- per month. Thus, according to them, the expenditure on this item incurred by the appellant, comes to Rs. 37,000,00/-. The appellant in his statement under Section 313, Cr. PC, denied to have incurred this much expenses on his kitchen. In his written statement, he stated that during the check period, he spent a sum of Rs. 23,314.50 on this item. This aspect also has been discussed by the learned Special Judge, in para 49 of his judgment. With regard to this item, the prosecution has examined only two witnesses namely, P.N. Shukla PW 36 and R.C. Chopra PW 23. The learned Special Judge, in his judgment, has mentioned that P.N. Shukla did not give any detail or reason for which he came to the conclusion that the kitchen expenses of the appellant Rs. 37,000.00 during the check period. Shri Shukla even did not state anything as to how the appellant used to maintain his kitchen, used to prepare his food, and from which shop, he used to purchase eatable articles. Hence there was no justification for P.N. Shukla to have said anything about the kitchen expenses of the appellant. Similarly, for R.C. Chopra, the learned -Special Judge was of the same view. Therefore, he did not agree with the estimate given by the prosecution on this item. He has no doubt, discussed the statements of these witnesses, but, he did not believe the version of the appellant, and according to his own conjectures he found that the appellant might have incurred the expenditure as estimated by the prosecution. He fully agreed with the contention of the prosecution. The learned Special Judge in his judgment, has discussed the entire evidence adduced by the appellant in this regard, and disbelieved them. He was of the opinion that the appellant did not submit any record to show that actually that amount was spent. I fail to understand the reasons and the way of appreciation of evidence by the learned Special Judge. He was of the opinion that the appellant did not submit any record to show that actually that amount was spent. I fail to understand the reasons and the way of appreciation of evidence by the learned Special Judge. On one hand, he says that P.N. Shukla PW 36 & R.C. Chopra PW 23 had no knowledge, and they had no basis for estimating the expenditure of the appellant on his kitchen, and on the other, the appellant who has reasonably proved this item of expenditure on his kitchen, by his evidence, has been disbelieved in a very casual manner alleging that the defence witnesses are relatives. This is no ground to discard the statements of witnesses. The appellant has examined DW 3 B.D. Deva, who used to cook food for the appellant. He has stated that in the year 1963, he was cook with the appellant. He was living is ope of the outhouses at the residence of the appellant. According to him, the food which the appellant used to have, was very ordinary & used to be cooked some times by his wife and sometimes at his own house and sometimes at the house of the appellant. According to him, the appellant was living all alone. There was very less expenses on the food of the appellant. So, I see no reason to disbelieve the statement of B.D. Deva PW 3. The other witnesses have also stated that while he was living with his family, he used to get done eatable articles from his father who was well-to-do, and also from his father-in-law, who was also an income-tax payer and a well-to-do person. This cannot be disbelieved that the appellant used to have some eatable articles from these two places, and the witnesses also have supported this aspect, and I see no reason to discard their statements, specially when there is no evidence to the contrary on the record of the case. The evidence on behalf of the prosecution is only an estimation, which has no basis. Therefore, the learned Special Judge has also erred in coming to the conclusion that the expenditure of the appellant on kitchen, was about Rs. 37,000.00, during the check period. The appellant who has mentioned that this expenditure was Rs. 22,314.50 appears to be reasonable on this item, and his explanation is proper, and there is no reason to disbelieve it. 29. 37,000.00, during the check period. The appellant who has mentioned that this expenditure was Rs. 22,314.50 appears to be reasonable on this item, and his explanation is proper, and there is no reason to disbelieve it. 29. The result of the above discussion is that the total expenditure of the appellant during the check period from 16th May, 1961 to 30th April, 1973, as alleged by the prosecution, is incorrect, and while agreeing with the contention of the appellant, regarding the items above, I agree with the expenditure incurred by the appellant during the check period, which was Rs. 22,314.50. 30. Now, I must proceed to consider as to what were the assets of the appellant as on 30th April, 1973, and see whether they were disproportionate to his known sources of his income. 31. According to the prosecution, the total assets found in possession of the appellant on 30th April, 1973, was worth Rs. 1,22,544.43. The contention of the appellant is that this estimation of the assets by the prosecution, is wrong, and that, by an arbitrary manner, they have valued his assets. According to him, total value his assets was Rs. 99,291.43 only. This item has been discussed by the learned Special Judge in para 57 of his judgment. He has mentioned in this para that the appellant had locker in the UCO Bank, at Ajmer and that, in that locker, some ornaments were found. The prosecution after giving some rebate on the value of the ornaments, found that they were worth Rs. 6,859/-. Those ornaments were were weighed on behalf of the prosecution, by R.R.L. Saraf, and according to Shri Saraf, the value of those ornaments, was Rs. 15,051.20. Within these ornaments, the prosecution did not include the value of 12 gold bangles & one necklace, which were worth Rs. 5,936.00 and Rs. 2,252.20 respectively. Thus, after deducting these two items, the value of these items, according to the prosecution, was Rs. 6,859.00. With regard to those ornaments, the contention of the appellant was that all those ornaments were given to his wife by his father and father-in-law at the time of his marriage. The learned Special Judge rejected this contention of the appellant on the ground that no bill etc. was produced by the appellant with regard to those ornaments. 6,859.00. With regard to those ornaments, the contention of the appellant was that all those ornaments were given to his wife by his father and father-in-law at the time of his marriage. The learned Special Judge rejected this contention of the appellant on the ground that no bill etc. was produced by the appellant with regard to those ornaments. The appellant has examined DW 5 Niranjanlal and DW 6 Sardarilal Wadhwa, and also DW 8 Dr. I.K. Singhal, and all of these witnesses have stated some ornaments were given to the wife of the appellant at the time of her marriage by the father of the appellant and also father-in-law of the appellant. I have already mentioned above while discussing the statements of these witnesses that this is no ground to discard their depositions because they are related to the appellant. I have read the statements of these witnesses, and find that they have deposed honestly, and there is nothing to discard their statements. The father as well as the father-in-law of the appellant are persons of sound status. There is evidence on the record that they both are well-to-do persons and were capable of spending large amount at the time of marriage of the appellant. There is no evidence on behalf of the prosecution, to the contrary, which shows that these witnesses are unreliable witnesses. The appellant has only to give proper explanation with regard to those ornaments. Whatever explanation he has given and whatever evidence he has adduced with regard to those ornaments, is reliable one and when there is nothing contrary to this evidence, I see no reason to discard this evidence. Therefore, the learned Special Judge has not at all correctly appreciated the evidence adduced by the appellant. On no basis, he agreed with the contention of the prosecution that the value of the assets of the appellant, was to the extent as alleged by the prosecution, and that the costs of those ornaments were not explained by the appellant. In my view, the appellant has given a cogent explanation. Therefore, the value of the ornaments, cannot be added to the assets of the appellant, because, they were received by him in the year 1959 when his marriage was performed, from his father and father-in-law. In my view, the appellant has given a cogent explanation. Therefore, the value of the ornaments, cannot be added to the assets of the appellant, because, they were received by him in the year 1959 when his marriage was performed, from his father and father-in-law. It is, therefore, incorrect to say that the appellant has failed to give evidence with regard to this item as to from where he purchased them or got them prepared. There was no need of giving any voucher or bill, because, they were given to them at the time of their marriage. There is no evidence on behalf of the prosecution to the effect that these ornaments were purchased by the appellant. While alleging something against the appellant, there should be some basis of it. Merely on conjectures and on an oral estimation of the Investigating Officer, it cannot be made basis for coming to the conclusion that the ornaments were collected by the appellant from undisclosed sources of income. Even if we look to the year 1959, when the marriage of the appellant was performed, the price of gold was very low. These ornaments were valued in the year 1973 when the house of the appellant was searched. According to law, the value of those ornaments should be calculated according to the rate prevalent in the year 1959, when the price of gold was very low. So, it cannot be said that the father and father-in-law of the appellant were not in a position to give so much of gold at the time. of the marriage of the appellant. Both these persons were well-to-do persons, and their income was sufficient to incur expenses on that ornaments at the time of marriage of the appellant. Therefore, the learned Special Judge has erred on this aspect also. 32. The next item is as regards a fixed deposit receipt of Rs. 3,000.00. This receipt is dated 3rd June, 1973. The house of the appellant was searched on 30th April, 1973. So, the FDR was of a latter date, and this should not have been added to the assets of the appellant, at the relevant time. Therefore, again the learned Special Judge has committed error in counting the FDR of Rs. 3,000.00 in the assets of the appellant. 33. The next item is with regard to some sarees, crockeries, almirahs etc. etc. Therefore, again the learned Special Judge has committed error in counting the FDR of Rs. 3,000.00 in the assets of the appellant. 33. The next item is with regard to some sarees, crockeries, almirahs etc. etc. The prosecution has alleged that all these items were found in possession of the appellant, on 30th April, 1973. As I have discussed above, at the time of their marriage, Dr. Saluja and his wife both were given clothes, crockeries, almirahs, etc. There is no proof on behalf of the prosecution that all these articles were purchased by the appellant after his marriage. Mere presence of these articles at the house of the appellant, does not give presumption that they were purchased by the appellant during his service period. Explanation has been given by the appellant that he received these articles at the time of his marriage. In my view, the explanation of the appellant is sufficient, and there is no reason to discard it. The prosecution must prove that these articles were purchased by the appellant. But, the prosecution has failed to do so. Therefore, all these items which were included in the assets of the appellant, have been wrongly included as such, by the prosecution. 34. It is also material to note that Mrs. Saluja, wife of the appellant, Dr. Saluja, is also an earning member. She is LIC Agent, and she gets commission on policies procured by her. The prosecution has alleged that while in this business, the wife of the appellant also must have incurred expenses for procuring policies, and so, that should have been added to the expenditure of the appellant. With regard to this expenditure, regarding procuring policies, the appellant has examined witnesses who have stated that it is correct that Mrs. Saluja was working as LIC-Agent, but, mostly, she used to procure policies of their relatives, and in that procurement, she had not to spend any expenditure. Madhukar Kul Gaur DW 7 has been examined as a defence witnesses. He was Development Officer from 1962 to 1972 and Mrs. Saluja was agent under him. He has stated that for procuring business he used to provide assistance to Mrs. Saluja. He also used to arrange for medical examination of the policy-holders. Madhukar Kul Gaur DW 7 has been examined as a defence witnesses. He was Development Officer from 1962 to 1972 and Mrs. Saluja was agent under him. He has stated that for procuring business he used to provide assistance to Mrs. Saluja. He also used to arrange for medical examination of the policy-holders. According to him, forms for policies, were supplied by the Office free of charge, so, no expenses were to be incurred on these forms also, by the agent. He has also stated that whenever he used to come to the agent, he used to come in his own conveyance. He has further stated that Smt. Tej Saluja had procured business mostly out of her relatives, and that, he knew that Mrs. Saluja did not incur any expenses on procuring business. So, from the statement of this witness, it is clear that no expenses were incurred by Smt. Saluja on procuring business. I have no reason to disbelieve the statement of this witness, who is an independent witness. To the contrary, there is no evidence on behalf of the prosecution on this aspect. So, as the husband and the wife both were earning members since long, it cannot be said that they were not in a position to save some money from their earnings. 35. In view of my above discussion, I am not satisfied with the contention of the prosecution that the assets found in possession of the appellant on 30th April, 1973, were worth Rs. 1,22,544.43. While believing the evidence adduced by the appellant, I hold that the value of the assets of the appellant on 30th April, 1973, amounted to Rs. 99,991.43. 36. The learned counsel for the appellant has argued that during the check period, the savings of the appellant were Rs. 1,58,751.31, and the assets which were found in possession of the appellant on 30th April 1973, valued to Rs. 99,991.43, and hence, there was no surplus income available to the appellant. He further argued that even if some surplus income remains there, that income would be comparatively small than the total income received by the appellant, and then too, no offence can be found to have been committed by the appellant. To support his argument, the learned counsel cited the case of Krishnanand Agnihotri v. State of M.P. AIR 1977 SC 796 . To support his argument, the learned counsel cited the case of Krishnanand Agnihotri v. State of M.P. AIR 1977 SC 796 . In the said judgment, their Lordships of the Supreme Court observed as under: "It will, therefore, be seen that as against an aggregate surplus income of Rupees 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rs. 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small it is less than ten per cent of the total income of Rs. 1,27,715.44--we do not think it would be right to hold that the assets found in the possession of the appellant, were disproportionate to his known sources of income so as to justify the raising of the presumption under Sub-section (3) of Section 5. We are of the view that, on the facts and the present case, the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption." In the above-cited case, their Lordships have held that the High Court as well as the Special Judge were in error in convicting the appellant; and the consequently, of the appellant was allowed and he was acquitted of the charge. 37. In the present case, without adding all items, if we take into consideration three main items which relate to amount of Rs. 10,000.00, Rs. 2,000.00 and Rs. 1,500.00, which were not added to the income of the appellant, and as I have already discussed above agreeing with the appellant, they should have been added to the income of the appellant. The total of those items come to Rs. 13,500.00. According to the learned Special Judge the surplus amount found with the appellant, for which, no explanation was given by him, was Rs. 30,163.50. So if the amount of Rs. 13,500.00 is deducted from Rs. 30,163.50, it comes to Rs. 16,663/- approximately. Looking to the income of the appellant during the check period from 16th May, 1961 to 30th April, 1973, this excess income is comparatively small, which is less than 10% of the total income of the appellant. 30,163.50. So if the amount of Rs. 13,500.00 is deducted from Rs. 30,163.50, it comes to Rs. 16,663/- approximately. Looking to the income of the appellant during the check period from 16th May, 1961 to 30th April, 1973, this excess income is comparatively small, which is less than 10% of the total income of the appellant. So it cannot be said that the assets found in possession of the appellant on 30th April, 1973, were disproportionate to his known sources of income, so as to justify his conviction for offence Under Section 5(1)(e) read with Section 5(2) of the Act. 38. In view of my above discussion, I do not agree with the prosecution case, nor do I agree with the conclusion arrived at by the learned Special Judge. I hold that the assets found in possession of the appellant on 30th April 1973, were not disproportionate to his known sources of income. Therefore, no offence has been committed by the appellant. The prosecution has failed to establish its case against the appellant. 39. In the result, the appeal is accepted. The conviction and the sentence passed against the accused appellant under Section 5(1)(e) read with Section 5(2) of the Act, by the Special Judge, C.B.I., Rajasthan, Jaipur, vide his judgment dated 23rd September, 1983, are set aside, and he is acquitted of the said charge. He is on bail. He need not surrender to his bail-bonds, which are hereby cancelled.Appeal accepted. *******