JUDGMENT 1. :- The appellant (Udai Nath Mathur) by way of this appeal has challenged judgment of the learned Special Judge (ACD Cases) Jaipur whereby he has been convicted and sentenced as under : Under section 5(1)(e) read with section 5(2) of the Prevention of Corruption Act, 1947-- One year's RI with a fine of Rs. 500/- in default thereof, further 3 months' RI. 2. The relevant facts as unfolded by the prosecution in FIR No. 5/75 dated 18.1.75 (Ex.P.69), lodged by Khemchand Tejwani are that the appellant, while he was an employee in service holding the post of Mechanical Inspector in the Transport Department of Government of Rajasthan from 1953 to 1975 till he was compulsorily retired from service w.e.f. January, 1975, had indulged in corrupt practices and by abuse of his position by corrupt means acquired huge and disproportionate wealth worth Rs. 1,92,210/- as against his earned total income worth Rs. 46,824/- and in this manner he had been in possession of the assets worth Rs. 1,45,386/- over and above his expected savings in the light of his total earned income from the Government service and known sources, and he could not satisfactorily account for the excess wealth. 3. It is pertinent to mention that an anonymous letter was received by the Anti Corruption Department, Rajasthan, Jaipur on 17.9.1971 which was sent to conduct preliminary inquiry by the Head quarter of the Anti Corruption Department (for short "ACD") under order dated 6.10.1971 upon which PE No. 153/71 was registered and after preliminary inquiry, FIR dated 18.1.1975 (Ex.P.69) came be registered. Thereupon the investigation commenced and after usual investigation the challan vide charge sheet dated 3.11.1978 at the instance of the ACD was filed on 18.11.78 in the Court of the learned Special Judge, Jaipur (ACD Cases). The charge was framed against the accused appellant on 20.3.1980 for offence punishable under Section 5(1)(e) read with section 5(2) of the Prevention of Corruption Act, 1947 (for short "the Act"), to which he pleaded not guilty and claimed trial. The prosecution examined 19 witnesses in support of its case. The accused appellant was examined under section 313, CrPC and he examined five witnesses in defence. After hearing the parties, the learned trial Court held the accused appellant for the offence charged and by the impugned judgment, convicted & sentenced him as indicated above. Hence this appeal. 4. The prosecution examined 19 witnesses in support of its case. The accused appellant was examined under section 313, CrPC and he examined five witnesses in defence. After hearing the parties, the learned trial Court held the accused appellant for the offence charged and by the impugned judgment, convicted & sentenced him as indicated above. Hence this appeal. 4. I have heard the learned counsel for the parties and considered their rival contentions and carefully perused the relevant record. 5. Shri D.K. Jain, the learned counsel for the appellant contended that the petitioner since retired on the date of lodging the F.I.R. (Ex.P.69)-18.1.1975 and even on the date of filing the charge sheet after three years on 18.11.78, could not be tried for offence of criminal misconduct in terms of Section 5(1)(e) of the Act after he had ceased to be a public servant. Shri Jain then contended that Section 5(1)(e) of the Act was introduced on 18.12.1964, so it could not be applied retrospectively but the learned trial court committed an error of law in applying the same retrospectively by taking into account all the properties acquired by the petitioner's son and wife prior to 1964. Shri Jain also contended that the petitioner was compulsorily retired in January, 1975, therefore, he was not a public servant when he was served with the charge sheet. 6. Shri Jain further contended that the trial Court committed an error of law in calculating the income of the appellant on the basis of Exhibits 24 & 26 when admittedly neither primary evidence was disclosed to show actual salary of the appellant alongwith all paid allowances, nor there was material to show allowances paid to him during 1972-75. Shri Jain also urged that the learned trial court erred in holding that the petitioner's wife and son were only the benami holders and the property in fact belonged to the appellant whereas the prosecution itself, failed to discharge burden to prove that the property accounted for assessing its value of acquired wealth of the appellant, was benami held in his wife or son's name. 7. Shri Madhav Mitra, learned Public Prosecutor reiterated the conclusions arrived at by the learned trial Court and accordingly the appellant has rightly been convicted and sentenced for the offences charged. 8. 7. Shri Madhav Mitra, learned Public Prosecutor reiterated the conclusions arrived at by the learned trial Court and accordingly the appellant has rightly been convicted and sentenced for the offences charged. 8. Sub-section (e) to section 5(1) of the Act was inserted by the Anti-Corruption Laws (Amendment) Act, 1964 (40 of 1964) w.e.f. 18.12.1964. The same is reproduced as under: "5. Criminal misconduct in discharge of official duty-(1) A public servant is said to commit the offence of criminal misconduct- (e) if he, or any person on his behalf is in possession of or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income." 9. The introduction and insertion of sub-section (e) to Section 5(1) of the Act and its application w.e.f. 18.12.1964 and not retrospectively have not been disputed by the learned counsel for the parties at the bar. Therefore, provisions of Section 5(1)(e) of the Act could not have been made retrospective application and in other words, the public servant, if he or any person on his behalf has acquired and possessed any property or pecuniary resources prior to 18.12.1964 could not have been computed for assessing the value of the property or income disproportionate to his known sources of income because the provisions contained in sub-section (e) of Section 5(1) of the Act since came into operation after insertion thereof w.e.f. 18.12.1964 and not prior to it. But, the learned trial Court added the property or pecuniary resources acquired prior to 18.12.1964 by the appellant and on his behalf by wife, son or daughter. Therefore the income from the pecuniary resources or property acquired by the appellant or on his behalf by his wife, son or daughter, from the date of joining the service i.e. year 1953 to 18.12.1964 cannot be added so as to determine the culpability for offence punishable under Section 5 (1)(e) of the Act against the appellant. The learned trial Court committed error of law as it failed to take notice of this significant aspect of the matter. 10. The prosecution produced only three documents Ex.P.24 to Ex.P.26, which cannot be termed as legal evidence without production of original acquittance rolls, inasmuch as they did not reflect revision of pay arrears, loan amount etc. The learned trial Court committed error of law as it failed to take notice of this significant aspect of the matter. 10. The prosecution produced only three documents Ex.P.24 to Ex.P.26, which cannot be termed as legal evidence without production of original acquittance rolls, inasmuch as they did not reflect revision of pay arrears, loan amount etc. The law does not permit their admissibility without production of original record. The prosecution examined sole witness Jethanand (PW12) to prove Ex.P.24 to Ex.P.26. Ex.P.24 only reflects basic pay for the period from 1964 to 1971 and Ex.P.26 refers to the period from 1961 to 1968 and no information has been worked out for the period from 1972 to 1975. Moreover, dearness allowance has also not been computed in Ex.P.25 for the period from 1953 to 1961. That apart, Jethanand (PW12) in his statement stated that Ex.P.24 to Ex.P.25 were prepared on the basis of service book and only pay, not DA and other allowances were entered therein. In Ex.P.26 pay and allowances with deductions have been shown for the period 1%1 to 1968 based on salary bills. Thus, having not included the amount of D.A. and other allowances paid to the appellant in any of Ex.P.24 to P.26, calculation of the income is totally wrong because Ex.P.24 to P.26 were prepared on the basis of service book which does not reflect complete income of the appellant. 11. The learned trial Court in para 17 of its judgment held that the prosecution has failed to prove the fact of the accused appellant having any property in his own name. The trial Court held the accused appellant guilty of the impugned offence only on the basis of the property held and proved to have been in the name of his wife (PW15) and a son namely Rajendra (PW16). The property accounted for holding the appellant guilty consisted of (1) agricultural land of Manpura village; (2) a house No. 188 Indira Colony, Jaipur in the name of Kamla (PW15) and (3) a plotthouse No.155 Ashok Nagar Udaipur in the name of Rajendra (PW16). 12. The property accounted for holding the appellant guilty consisted of (1) agricultural land of Manpura village; (2) a house No. 188 Indira Colony, Jaipur in the name of Kamla (PW15) and (3) a plotthouse No.155 Ashok Nagar Udaipur in the name of Rajendra (PW16). 12. As regards agricultural land, on the basis of prosecution evidence consisting of statements of Smt. Kamla (PW15) Prithvipal (PW1), Babulal Gupta Tehsildar (PW9) and Ravindra Prakash (PW9) which were corroborated by a registered sale deed and agreement (Ex.P.21) dated 25.2.74 and Mutation entry (Ex.P.17), the trial Court found the said land proved to have been purchased by Kamla (PW15) w/o appellant from Prithvipal (PW1) for a sum of Rs. 40501/- on or about 25.2.74. So, the land was rightly proved to have been assessed at value of Rs. 40,500/- because Kamla (PW15) wife of appellant, herself, admitted the value as per registry of the land. 13. As regards House No. 188 Indira Colony Jaipur, its construction value was found proved to have been Rs. 39651/- on the basis of prosecution evidence consisting of report (Ex.P.16) which was corroborated by statement of S.V. Gupta (PW4) and documents Ex P.4 to P.14 duly supported by statements of Kamla (PW15) and Rajendra (PW16), and Rs. 2000/- were added to it as cost of land, over which construction of three floors' house was made at intervals during 1962 to 1969 and 1970. In all, Rs. 41,652/- was held proved to have been cost of construction and land of this house No. 188 of Jaipur. A careful perusal of ExP. 16 proved by S.V. Gupta (PW4) shows that valuation was made on the basis of PWD's Circular dated 11.7.62 which cannot be doubted in any manner. 14. However, the value held by the trial Court to have been at Rs. 92035/- as cost of land and house constructed over the property situated at Plot No. 155, Ashok Nagar Udaipur, in my considered view, appears to be totally wrong being over estimated on the basis of no legal evidence. As regards, costs of land of this Plot No. 155, Rajendra (PW16), himself, proved by producing Ex.P.60 and Ex.P.61 to establish that the said plot was purchased from U.I.T. in auction for a sum of Rs. 10,115/- by depositing it on 24.8.66 ad as per map (Ex.P.63) construction over the plot was made upto 5.10.66. As regards, costs of land of this Plot No. 155, Rajendra (PW16), himself, proved by producing Ex.P.60 and Ex.P.61 to establish that the said plot was purchased from U.I.T. in auction for a sum of Rs. 10,115/- by depositing it on 24.8.66 ad as per map (Ex.P.63) construction over the plot was made upto 5.10.66. The trial Court held the value of land and construction of house on this plot at Rs. 92035/- only on the basis of assessment report (Ex.P.19 & P.20) made by U.M. Singhvi (PW7). This witness (PW7) in his statement admitted to have made valuation of house No.155 of Rajendra (PW16) as per his letter cum report (Ex.P.20). This letter cum report dated 10.9.75 (Ex.P.20) clearly states that the valuation was made at the B.S.R. rates of the PWD which were applicable from September 1972. Thus, the valuation of construction and cost of land since based on the B.S.R. rates of PWD which were effective from September, 1972 is ex facie over estimated and assessed, whereas the assessment would have been made on the basis of B.S.R. rates of the PWD which were applicable on the date of completion of the construction, which in case of this plot was made up to 5.10.66. Therefore, the assessment made and relied by the trial Court in its judgment being based on no legal evidence is discarded from the evidence and held to be inadmissible. The rates as on 5.10.66 when construction was completed as per prosecution evidence of Rajendra (PW16) could have been applied so as to assess construction value. Since the rates which were effective on 5.10.66 have not been proved on record by the prosecution, therefore, only evidence produced by the prosecution is of Rajendra Kumar (PW16) who deposed that he had incurred a sum of Rs. 30,000/- towards construction of house over this plot of Udaipur, can be relied. Hence, its value to the tune of Rs. 40115/- ( Rs. 10115/- cost of land deposited with UTT and Its. 30,000/- cost of construction) is held to be proved on record. 15. Total value of the property (consisting of aforesaid three) accounted for holding the appellant guilty is held to the tune of Rs. Hence, its value to the tune of Rs. 40115/- ( Rs. 10115/- cost of land deposited with UTT and Its. 30,000/- cost of construction) is held to be proved on record. 15. Total value of the property (consisting of aforesaid three) accounted for holding the appellant guilty is held to the tune of Rs. 1,22,267/- only as observed above and this trioka property certainly found proved to have been in the name of Kamla (PW15) and Rajendra (PW16) (wife and son of the accused appellant) and not in the name of the appellant himself and it is also not the prosecution case in the entire evidence on record that he had also owned any property in his own name. The trial Court held the accused appellant guilty for offence under Section 5(1)(e) of the Act only on the findings that the trioka property proved to have been owned in the name of his wife Kamla (PW15) and his son Rajendra (PW16) were benami and its real owner was the accused appellant, himself and further that his wife and son on behalf of the accused appellant are in possession of aforesaid trioka property. It must be remembered that it is prosecution that the aforesaid properties stood in the names of Kamla (PW15) and Rajendra (PW16) and the burden, therefore, lies on the prosecution to show that they were benamidars of the accused appellant. 16. As held by Apex Court in Krishnanand vs. State of M.P. ( AIR 1977 SC 796 ) , this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of behami or establish circumstances unerringly and reasonably raising an inference of that fact. Even as held by Apex Court in Jay Dayal Poddar vs. Bibi Hazra ( AIR 1974 SC 171 ) , 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 on legal grounds established by evidence. In my considered view also, no absolute formula or strait jacket formula can be laid down to constitute a benami transaction. The conduct of the parties has to be considered in dealing with benami transaction. Title has to be looked, considering nature of the possession of the alleged benami property after its purchase. In my considered view also, no absolute formula or strait jacket formula can be laid down to constitute a benami transaction. The conduct of the parties has to be considered in dealing with benami transaction. Title has to be looked, considering nature of the possession of the alleged benami property after its purchase. The source from which purchase money came in the hands of purchaser and the motive for giving transaction as benami, have also to be seen. If aforesaid principles are taken into consideration in the case at hand, I find that the prosecution has utterly failed to adduce legal evidence on record of a definite character which may directly prove the fact of benami or even to suggest anything unerringly to raise an inference to that fact. There is no evidence of a definite character to prove that the transaction of the aforesaid three benami properties was done by appellant or that the constructions were got made/arranged/managed by the accused appellant. Contrarily the title deeds/registered deed for purchase of the agricultural land of Manpura, Udaipur house and Jaipur house, produced by the prosecution at the instances of its witnesses (PW15, PW16 and other witnesses supporting them to prove deeds/purchase or sale deeds or its registration) clearly establish title, right and interest besides possession over the property in favour of only purchasers and not the accused appellant. The sellers of the aforesaid benami properties have been produced by the prosecution and they do not connect the appellant with their transactions and none of them proved that the purchase money was managed or arranged by the accused appellant. Even presence of the appellant at the time of alleged agreement to sell has not been alleged in oral statement. It is true that the purchasers of the alleged benami properties are the wife and son of the accused appellant but mere relation does not prove the transaction as benami one. 17. As regards source of the purchase the prosecution itself produced Ramchandra (PW3), Ramswaroop (PW11), Kamladevi (PW15) and Rajendra (PW16). Ramchandra (PW3) proved that he was tenant of a shop which was owned by Kamla but mortgaged with Trilok Chand. In cross examination, he admitted to have paid rent of Rs. 370/- vide Ex.P.21 which also noted to have earlier paid Rs. 1550/- towards rent for period from 1.10.63 to 30.9.67 @ Rs. 40/- per month. Ramchandra (PW3) proved that he was tenant of a shop which was owned by Kamla but mortgaged with Trilok Chand. In cross examination, he admitted to have paid rent of Rs. 370/- vide Ex.P.21 which also noted to have earlier paid Rs. 1550/- towards rent for period from 1.10.63 to 30.9.67 @ Rs. 40/- per month. He proved receipt of rent for period from Oct. 67 to Jan. 68 vide Ex.P.22. He also proved receipts of rent vide Ex.P.23 to P.58, differently signed for Kamla Devi landlord of shops of Ramganj Bazar. Ramswaroop (PW11) proved to have purchased one shop of Kamla Devi (PW15) in March 1972 at sale price of Rs. 11000/- paid to her through registered sale deed. Even Ramswaroop (PW6) UDC of Municipality Jaipur proved annual rent of Rs. 1102/- for 1964-65, Rs. 1836/- for 1971-72, Rs. 6426/- for 1975-76. He also proved the fact of tenant let out in Bani Park's House in question. 18. Even the defence witness Mishri Mohan (DW6) proved the facts that Banshilal (father in law of the appellant) was having only one daughter (wife of the appellant) and in marriage she was given gift consisting of cash worth Rs. 3000/- besides gold weighing 20 bolas; that cash gift of Rs. 3000/- was given by wife of the appellant to her father in law for further investment to earn interest. He proved that house No.188 of Labour Colony of Jaipur was purchased by Kamladevi at Rs. 2000/- and the ground floor was constructed upto 1962, and 1st floor was constructed in 1963. He also proved that both first and ground floors were let out @ Rs. 200/- and Rs. 150/- p.m. respectively. He also deposed that Rs. 9000/- was given by his mother to Rajendra (PW16) to purchase land in Udaipur vide Ex.D.3. He also proved that Banshilal (father of Kamladevi) got purchased two shops situated in Ramganj Bazar and which were let out @ Rs. 60 and Rs. 40/- per month respectively. He also proved to have given Rs. 6000/- to Rajendra (PW16) in the year 1966-67 for purchase of land in Udaipur. During cross examination by the Public Prosecutor, Mishri Mohan (DW6) deposed that Banshilal purchased orce shop in 1959 @ Rs. 5000/- and second shop @ Rs. 7500/- in 1960 for his daughter Kamladevi (PV%115) (wife of appellant). 19. He also proved to have given Rs. 6000/- to Rajendra (PW16) in the year 1966-67 for purchase of land in Udaipur. During cross examination by the Public Prosecutor, Mishri Mohan (DW6) deposed that Banshilal purchased orce shop in 1959 @ Rs. 5000/- and second shop @ Rs. 7500/- in 1960 for his daughter Kamladevi (PV%115) (wife of appellant). 19. Though the learned trial Court treated the property owned in the names of wife and son of the appellant as benami property of the appellant so as to hold him guilty of misconduct under Section 5(1)(e) of the Act and to establish charge of disproportionate income but surprisingly enough it did not compute the income earned/accrued from those benami properties or the income earned by benamidars Kamla (PW15) and Rajendra (PW16) as income of the appellant from known resources. If those income earned by wife and son of the appellant whose properties have been computed as benami, is added income from known sources and pecuniary resources to the appellant then also in my considered view, the appellant cannot be saddled with charge of misconduct of having disproportionate property to his known sources of income. As held above, though this Court has not recognised/affirmed the conclusions of the trial Court as to the prosecution case for the known source of income i.e. salary of the appellant for the reasons assigned above because of the prosecution having utterly failed to prove entire statement of salary with allowances paid by the employer of the appellant during the entire period of his office on the post of Mechanical Inspector in the Transport Department,. but for the sake of arguments, if computation of income made by the trial Court is added by other known sources of income from the benami properties and income of wife and son of the appellant then total income comes as under: 1 Salary income conceded by the prosecution Rs. 46824 2 Rental Income of Two Shops @ 60+40=100/- per month Rs. 14400 from 1960 till one shop sold in 3/72 @ 1200 p.a. x 12 years & 480 p.a. x3 yrs. Rs. 1680 3 Rental Income of Two Floors . 150+200=350/- per month from Oct. 1966 till retirement Oct. 1975 4200 p.a.x10 years Rs. 42000 4 Sale proceeds of one shop in March 1972 @ Rs. 11000/- Rs. 11000 Rs. 115904 20. Rs. 1680 3 Rental Income of Two Floors . 150+200=350/- per month from Oct. 1966 till retirement Oct. 1975 4200 p.a.x10 years Rs. 42000 4 Sale proceeds of one shop in March 1972 @ Rs. 11000/- Rs. 11000 Rs. 115904 20. Thus, as against the assets possessed by the appellant even in the benami of his wife and son worth Rs. 1,22,267/- the income from known sources assessed above worth Rs. 1,15,904/- it is excess comparatively small and it is less than ten percent of the total income, I do not think it would be right to hold that the assets found in the possession of wife and son of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under Section 5(1)(e) of the Act. 21. Even otherwise, there is not an iota of evidence on record to prove that the money was provided by the appellant for purchase of agricultural land, plots of Labour Colony Jaipur and Ashok Nagar of Udaipur and for construction on these plots. As already discussed and held above, the prosecution has produced no evidence to even suggest that the aforesaid three properties owned and titled in the names of wife and son of the appellant, is Bnami and their real owner is the appellant. On the other hand, there is evidence on record that the money was funded by Banshilal, father of Kamla (PW15) and she disposed of her one shop of Ramganj Bazar at Rs. 11000/- and she earned rental income from the let out shops besides Rajendra (PW16) had also rental income of the ground and first floors of house in his name. Therefore, the prosecution had failed to establish and it was erroneous on the part of the trial Court to have assumed that in respect of the aforesaid three properties which have been in the right, title and interest so also possession of wife and son of the appellant, they are the benamidars and their real owner is the appellant. 22. In the ultimate analysis the prosecution has not established the case against the appellant beyond reasonable doubt. 22. In the ultimate analysis the prosecution has not established the case against the appellant beyond reasonable doubt. There are also other possible errors in the calculations in respect of pecuniary resources and known sources of income which have been either included or excluded by the trial Court during computation of income as well as valuation of the assets held in possession of wife and son on behalf of the appellant. The findings become inescapable that the assets were benami and in excess of the known sources of income. I am of the considered view that, on the facts of the present case, discussed above, the trial Court was in error in raising a presumption contained in Section 5(1)(e) of the Act and convicting the appellant on the basis of such erroneous presumption. 23. As a result of the above discussion, this appeal is allowed. The judgment dated 25.6.1985 & order dated 6.7.85 passed by the Special Judge (ACD Cases), Jaipur in Spl.Cr.Case No. 66/78 is set aside and consequently the impugned conviction and sentence awarded against the appellant (Udainath Mathur) are quashed & set aside. The appellant is acquitted of the offences under Sections 5(1)(e) and 5(2) of the Prevention of Corruption Act, 1947. The appellant is on bail, therefore, his bail bonds stand discharged.Appeal Allowed. *******