JUDGMENT: The learned Special Judge No.II/ XII Additional Judge, Chennai in Special C.C.No.3 of 1998 convicted the first appellant for an offence under Sec.13(1)(e) read with Sec. 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for three years and also to pay a fine of Rs. 1 lakh, in default to undergo S.I. for three months and convicted A2 to A5 for an offence under Sec.109, I.P.C. and Sec.13(1)(e) read with Sec.13(2) of the Prevention of Corruption Act, 1988 and sentenced them to undergo R.I. for one year and also to pay a fine of Rs.10,000 each in default to undergo S.I. for one month. The sixth accused was acquitted. As against the order of conviction passed by the learned Special Judge, these appeals have been preferred by the accused 1 to 5. Since all these appeals have been preferred as against a single judgment, the following common order is passed. 2. The charge against the first appellant is that while he was discharging his duties as Minister of Education, Government of Tamil Nadu during the period from 18.5 1993 to 9.5.1996, he abused his position as a public servant and acquired and possessed pecuniary resources and properties in his name and in the names of A-2 to A-5 disproportionate to his known sources of income to the extent of Rs.77,49,337.77. The charge against A-2 to A-5 is that during the above said period, they abetted A-1 in the commission of the offence of criminal misconduct to acquire a substantial portion of the pecuniary resources and properties in their names and by holding such properties and pecuniary resources on behalf of the first accused. 3. The first accused was elected as Member of Legislative Assembly from the Marugapuri Constituency in June, 1991. He became the Deputy Speaker of the Legislative Assembly on 3.7.1991 and subsequently from 17.5.1993 to 9.5.1996, he was the Minister of Education to the Government of Tamil Nadu. Before coming to the political arena, A-1 was employed as a Lecturer in the Government Arts College and P.W.16 was also working as a Lecturer along with him in Trichy Government Arts College. A-1 borrowed a sum of Rs.5,000 from P.W.16 during 1985 and also executed a promissory note, but inspite of notice, the amount was not repaid. Therefore, Ex.P-92, suit was filed and a decree was obtained as per Ex.P-93. A-1 borrowed a sum of Rs.5,000 from P.W.16 during 1985 and also executed a promissory note, but inspite of notice, the amount was not repaid. Therefore, Ex.P-92, suit was filed and a decree was obtained as per Ex.P-93. After execution proceedings, an amount of Rs.9,000 and odd was recovered from the salary of A-1 in 1990 itself. 4. P.W.17 is a retired officer in the Bank of India. He was working as Manager in Trichy Branch from 1994-1998. He issued Ex.P-95, letter to the Deputy Superintendent of Police, Vigilance and Anti-corruption which reveals that the first accused obtained a crop loan of Rs.13.000 on 11.5.1973 and since he did not repay the same, a suit was filed on 20.1.1984 and the amount was collected on 13.12.1984. The financial position of the first accused was very weak till he became the Minister of Education during the period 18.5.1993 to 9.5.1996. 5. A-1 was functioning as Minister for Education. The second accused is his wife; the third accused is his daughter; the fourth accused is brother’s son of A-1; A-5 is the brother of A-1 and the sixth accused is a chartered accountant who submitted the income tax returns and wealth tax returns of A-2 to A-5 to the income tax authorities. The case of the prosecution is that A-1 acquired pecuniary resources during the check period, disproportionate to his known sources of income not only in his name, but also in the names of A-2 to A-5. To prove the case of the prosecution, the prosecution examined as many as 65 witnesses and Exs.P-1 to P-297 were marked. Godrej keys were marked as M.O.1. 6. According to the prosecution, the first accused purchased 2.86 acres of land for a consideration of Rs. 19,800 on 27.2.1995 from P.W.44 through Ex.P-52, sale deed. P.W.45 sold two acres of land to the first accused on the same day for a consideration of Rs.18,365 under Ex.P-54. P.W.46 and others also sold an extent of 8.34 acres of punja land to the first accused for a consideration of Rs.62,550 on the same day through Ex.P-56. The second accused purchased a house site of 3,300 sq.ft. from Tiruchirapalli Co-operative House Building Society for a consideration of Rs.3,23,000 through Ex.P-61, sale deed. One Shameem executed Exs.P-69, 71, 73 and 75 sale deeds in favour of A-3 during November, 1994. The second accused purchased a house site of 3,300 sq.ft. from Tiruchirapalli Co-operative House Building Society for a consideration of Rs.3,23,000 through Ex.P-61, sale deed. One Shameem executed Exs.P-69, 71, 73 and 75 sale deeds in favour of A-3 during November, 1994. A-2 Purchased the property found in Ex.P-77 from one Selvaraj and P.W.33 sold the house bearing door No.1/B, Khajamian Street, Khaja Nagar, Trichy under Ex.P-79 on 25.2.1995 for a consideration of Rs.3,25,000 to one Priya, minor represented by her guardian, the second accused. P.W.30 sold a house site bearing door No.1 Khajamian Street, Khaja Nagar, Trichy, to A-4 for a consideration of Rs.1,60,000 under Ex.P-75. 7. Ex.P-19 is the statement of account relating to the savings bank account of A-1 in the Indian Overseas Bank, Secretariat Branch, Chennai. Exs.P-22 and P-24 are the statements of accounts standing in the name of A-4 in his savings bank a/c. in Karur Vysya Bank, Trichy. Exs.P-33 and P-34 are the statements of accounts relating to the savings bank account of A-3 in the same bank. Ex.P-37 is the ledger extract of the savings bank account standing in the name of minor Priya. Ex.P-38 is the ledger extract of the savings bank account standing in the name of A-2. Ex.P-42 is the ledger extract of the savings bank account standing in the name of A-5 in the same bank. 8. An amount of Rs.65,000 was deposited in A-3’s account on 18.6.1994 and an amount of Rs.5 lakhs was deposited in the same account on 28.11.1994. The relevant pay in slips are Exs.P-35 and P-36. An amount of Rs.5 lakhs was deposited into the account of A-2 as per Ex.P-10, pay in slip and another amount of Rs.5 lakhs was deposited in the same account as per pay in slip, Ex.P-41, on 25.1.1995. An amount of Rs.5 lakhs was deposited in the said account as per pay in slip, Ex.P-65, on 2.2.1995, another Rs.5 lakhs was deposited as per pay in slip, Ex.P-68. on 3.3.1995, yet another amount of Rs.5 lakhs was deposited through pay in slip, Ex.P-66 and on the same day another amount of Rs.5 lakhs was deposited as per pay in slip, Ex.P-67. As per pay in slip, Ex.P-45 an amount of Rs.3,25,000 and as per pay in slip, Ex.P-45 an amount of Rs.1 lakh were also deposited in the account of A-2. As per pay in slip, Ex.P-45 an amount of Rs.3,25,000 and as per pay in slip, Ex.P-45 an amount of Rs.1 lakh were also deposited in the account of A-2. On 8.11.1984, an amount of Rs.5 lakhs was deposited in the account of A-4 as per pay in slip Ex.P-64. 9. There was a locker bearing No.122 standing in the name of A-2 in Andhra Bank, Trichy Branch. There was another locker bearing No.132 standing in the name of A-4 and P.Mala in the same bank. In both the lockers 37 items of jewellery, as per Ex.P-114 list, were found. 10. P.W.34, the owner of a jewellery shop at Trichy sold jewels to A-2 through Exs.P-202 to 214 and A-2 had signed the bills. P.W.34 received payments by way of cheques. A-2 purchased jewels worth Rs.84,250 under Bill No.Ex.P-265 and jewels worth about Rs.78,000 under Bill No.266 from Coimbatore Jewellers. She purchased jewels worth Rs.1,46,000 from the same shop under Ex.P-267, bill. 11. P.W.39, who was working in Malaysia during the year 1992-94 opened N.R.I., account in his name with the help of his brother-in-law, Rajasekaran. He used to send every month Rs.25,000 to Rs.30,000 by bank draft enclosing blank cheques signed by him to Rajasekaran. The said Rajasekaran was operating the account of P.W.39 by utilising the blank cheques signed by P.W.39. The said Rajasekaran used to draw the amount from the bank and hand over the same to the wife of P.W.39. While so, P.W.39 was asked to sign an affidavit by Rajasekaran. The affidavit reads that the cheques have been handed over to Prabhavathy viz., the second accused. P.W.39 did not issue any cheque by way of gift to anybody. Ex.P-224 to P-236 are the blank cheques signed by P.W.39. 12. P.W.42 was employed in Bahrain. He also used to send Rs.5,000 or Rs.10,000 every month to his family in India. Rajasekaran promised him to give commission if he is allowed to deposit American Dollars in N.R.I. A/c of P.W.42. P.W.42 therefore signed pay in slips and one cheque and handed them over to Rajasekaran. P.W.42 has signed Exs.P-136 to P-142, blank cheques. He too did not give any gift to anybody. Rajasekaran promised him to give commission if he is allowed to deposit American Dollars in N.R.I. A/c of P.W.42. P.W.42 therefore signed pay in slips and one cheque and handed them over to Rajasekaran. P.W.42 has signed Exs.P-136 to P-142, blank cheques. He too did not give any gift to anybody. American Dollars worth Rs.2,50,000 were deposited in the N.R.I account of P.W.42 by his son, P.W.43 and Rajasekaran and since the amount in the bank was less than Rs.50 lakhs, 20 dollars were deposited in the same account by them. Rajasekaran obtained documents from P.W.43 for withdrawing the amount from the bank. The entries in pay in slips were filled up by P.W.43. P.W.51 is the brother of one Arulsamy, who was working in Singapore during 1992 to 1994. P.W.51 says that the signatures found in Exs.P-159 to P-173 and Ex.P-128 were not that of Arulsamy. P.W.49 was running a Film Distribution Firm in the name and style of Vaigai cine release. The 4th accused and some others are the partners in the said firm. Each partner invested Rs.40,000. A-4 lent a sum of Rs.10,00,000 to this firm on 29.6.1994. The firm further received Rs.5,00,000 from A-4 on 22.7.1994 and another Rs.5,00,000 was received from one Rajappa. On 30.9.1994, A-4 advanced Rs.2,00,000 to this firm as loan. On 15.12.1994 also, another sum of Rs.3,00,000 was advanced as loan by A-4. The entire amount of Rs.20,00,000 was repaid as per Ex.P-264, ledger. 13. P.W.62, the Superintendent of Police, Vigilance and Anti Corruption received a confidential information that the first accused has amassed wealth disproportionate to his known sources of income when he was serving as Minister. He ordered a secret enquiry. On the basis of the information received by him, he registered a case in Crime No.4/Ac/96/Hq under Sec.13(2) read with Sec.13(1)(e) of the Prevention of Corruption Act. Ex.P-286 is the first information report which was sent to the Sessions Court. He authorised P.W.64 to conduct investigation by issuing Ex.P-287. He also issued an order Ex.P-288 under Sec.18 of the Prevention of Corruption Act authorising P.W.64 to collect documents from the banks. 14. P.W.64 took up investigation and after obtaining search warrant from the Court, he searched the house of A-1 on 21.8.1996 in the presence of A-4. P.W.22 and one Gopaladesikan were also present there. 29 documents and keys of bank lockers were seized. 14. P.W.64 took up investigation and after obtaining search warrant from the Court, he searched the house of A-1 on 21.8.1996 in the presence of A-4. P.W.22 and one Gopaladesikan were also present there. 29 documents and keys of bank lockers were seized. 11 floppies were also seized through search list, Ex.P-113. P.W.22, Gopaladesikan and A-4 have signed the search list. A copy of the search list was given to A-4. On 30.8.1996, P.W.64 searched the house bearing door No.1B, Khajamian Street, but no property was recovered. P.W.64 also searched the bank lockers bearing Nos. 122 and 132 in Andhra Bank, Trichy Branch and found 37 items of jewels. Ex.P-14 is the search list in which also witnesses have signed and a copy was given to A-4. He collected documents from the bank and also Corporation of Trichy and Electricity Board. He also collected income tax returns of the accused. He examined the witnesses and recovered Exs.P-1 to P-214 and Exs.P-224 to P-228. P.W.64 prepared the statements regarding income and expenditure of A-1 and also properties purchased before and during the check period and according to him, the value of the properties acquired by A-1 during the check period was Rs.77,49,337.77, which is disproportionate to his known sources of income. P.W.64 then gave the copies of Exs.P-291 to P-294, statements of income and expenditure to A-1 and got his explanation, which was found to be not satisfactory. 15. P.W.63, the Inspector General of Police, Vigilance and Anti Corruption issued orders under Ex.P-289 as per Sec.17 of the Prevention of Corruption Act authorising P.W.65 to continue the investigation since P.W.64 retired from service. P.W.65 examined P.Ws.31 and 36 to 38 and others. He also collected Exs.P-215 to P-223. After completing investigation, he filled the final report on 9.7.1998 for an offence under Sec.13(2) read with Sec.13(1)(e) of the Prevention of Corruption Act, 1988, against the first accused and for an offence under Sec. 109, I.P.C. and Sec.13(2) read with Sec.13(1)(e) of the Prevention of Corruption Act, 1988 against the accused 2 to 6. 16. After the evidence of the prosecution, the learned Special Judge examined the accused with regard to the incriminating circumstances that appeared in evidence against them. 16. After the evidence of the prosecution, the learned Special Judge examined the accused with regard to the incriminating circumstances that appeared in evidence against them. The first accused stated that he is in no way connected with the properties standing in the name of A-2 to A-5 and the properties standing in his name are not disproportionate to his known sources of income and the case has been filed due to political motive. A-4 would say that no opportunity was given to him to prove his income and that he was doing money lending business, real estate and also took contracts. It is his further case that with the help of his friend Rajasekaran, he transferred his earnings through N.R.I., cheques in the name of A-2 and her children and he has also paid Rs.19 lakhs by way of income tax. A-2 and A-3 contended that the properties standing in their names were acquired by utilising the funds earned by A-4 and A-4 gave them out of love and affection. A-2 would further say that she derived income from landed properties also. A-5’s case is that the assets standing in his name have been acquired by his own efforts and A1 had not contributed anything towards the same. He would further say that he earned through contracts and dairy farming. The accused also examined as many as 46 witnesses and marked Exs.D-1 to D-164. 17. D.W.1 who was running a hardware shop sold the house bearing door No.1, Khajamian Street, Khaja Nagar, to A-2 as per Ex.P-77 and another house belonging to one Abdul Malik was purchased in the name of A-3 for Rs.7,75,000. He also arranged for a loan of Rs.1.5 lakhs for A-3 from Ambal Finance to purchase a car, D.W.2, who was working under D.W.1 received the sale amount through four cheques from A-4 and after encashing them, he gave the amount to Jameem, wife of Abdul Malik. He also signed as a witness in the above said sale deed. D.W.3, the brother of A-2 attested settlement deeds in favour of A-3 and A-2, marked as Exs.P-58 and P-59. According to them, the lands yielded a lot of income. D.W.4 is cultivating the lands of Vallikannu Ammal and after her death, he was paying the lease to her son, the first accused. D.W.3, the brother of A-2 attested settlement deeds in favour of A-3 and A-2, marked as Exs.P-58 and P-59. According to them, the lands yielded a lot of income. D.W.4 is cultivating the lands of Vallikannu Ammal and after her death, he was paying the lease to her son, the first accused. According to D.W.5, the 5th accused was cultivating her lands and paying Rs.1,500 per year as lease amount. D.W.6, Divisional Engineer, Highways gave Ex.A-6 certificate that A-5 was doing contract work. D.Ws.7 to 10, 15 to 29, 31 and 34 to 45 have borrowed loans from A-4 by executing promissory notes and later on paid the amount and got the promissory notes discharged. The concerned promissory notes were marked as Exs.D-10 to 12, 17 to 21, 28, 29, 35, 39, 41, 43, 46, 47, 49, 50, 52, 56, 57, 59, 60, 61, 63, 65, 66 and then 69 to 71, 74, 75, 77, 80, 85, 89, 95, 97, 100, 104, 106, 110, 113, 116, 117, 120, 121, 123, 125, 126, 128, 129, 131, 133, 136, 146 to 148, 151, 154, 155 and 159 to 162. 18. D.W.11, who is the Village Administrative Officer of Sivanthampatti village issued Ex.D-31 certificate regarding the tamarind crop in favour of A-1. D.W.12, the Commissioner, Panchayat Union, Marungapuri issued Ex.D-32 to show that the 5th accused took contract work. D.W.13, The Commissioner of Manaparai Panchayat Union also gave a certificate, Ex.D-33 to show that the 5th accused is a contractor. D.W.14 says that the 4th accused was running a Tutorial College and a Training College and used to lend money for interest. D.W.30, is a pawn broker as well as Registered contractor. According to him, he constructed the first floor of the house bearing door No.1 A, Khajamian Street, Khaja Nagar standing in the name of A-2 for an amount of Rs.3,65,000. D.W.33 gave his building to A-4 for running a tutorial college on rental basis for Rs.750 p.m. Ex.D-98 is the agreement between the 4th accused and D.W.33. D.W.46 is working under Kunhambu, who is an approved valuer for Income Tax Department. He valued the house bearing door No.1A, Khajamian Street, Khaja Nagar on 15.3.1996 and gave Ex.D-164, valuation certificate to the Income Tax Department stating that the value of the house was Rs.4,05,230. 19. D.W.46 is working under Kunhambu, who is an approved valuer for Income Tax Department. He valued the house bearing door No.1A, Khajamian Street, Khaja Nagar on 15.3.1996 and gave Ex.D-164, valuation certificate to the Income Tax Department stating that the value of the house was Rs.4,05,230. 19. The prosecution has proceeded against the accused on the premise that before becoming the Minister for Education, A-1 was a borrower and he had no sufficient funds and after becoming a Minister, he acquired wealth and the properties far beyond the known sources of income not only standing in his name, but also in the names of others viz., his wife, daughter, brother’s son and brother. 20. The appellants stand charged for an offence under Sec.13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988. Sec.13(1)(e) has two limbs. The first one is that if the public servant is in possession or has been in possession at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income for which he would not satisfactorily account, he has to be punished. The second limb is if any person possess such property on behalf of the public servant, even then the public servant has got to be punished. In this case, the investigation has not proceeded in such a way to segregate the assets and pecuniary resources possessed by the public servant in his own name and such assets and resources possessed by others on his behalf. Therefore, a worksheet was filed at the instance of this Court by the accused as well as by the prosecution. Both the defence and the prosecution agree as per the worksheets filed by both sides that the assets and pecuniary resources standing in the name of the first accused, the public servant do not exceed the known sources of his income. Therefore, the public servant cannot be punished under the first limb of Sec.13(1)(e) of the Act. The next step is to find out whether the public servant viz., the first accused was in possession or has been in possession at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income standing in the name of some other person on his behalf. 21. The next step is to find out whether the public servant viz., the first accused was in possession or has been in possession at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income standing in the name of some other person on his behalf. 21. With regard to second aspect according to the prosecution, the value of disproportionate assets standing in the name of A-2 is for about Rs.35,23,396. According to the defence, assets standing in the name of A-2, wife of A-1 at the end of the check period was for an amount of Rs.29,00,067 making a difference of more than Rs.6 lakhs. Insofar as the assets standing in the name of A-3, the daughter of A-1, are concerned, according to the prosecution, the value of assets standing in the name of A-3 that are said to be disproportionate assets amounts to Rs.11,14,772. But according to the defence, the assets at the end of the check period standing in the name of A-3 was only Rs.11,26,283 more or less exceeding the assessment of the prosecution. With regard to A-4, the cousin brother of the first accused, the prosecution case is that the disproportionate assets standing in his name during the check period was about Rs.18,55,308 and the defence estimation is also the same, except the plea that those assets belong to A-4 himself. Coming to the case of A-5, the prosecution finds disproportionate assets standing in the name of A-5 (brother of A-1) amounts to Rs.13,16,158. Whereas the case of the defence is, assets standing in the name of A-5 at the end of check period was only Rs.10,01,079 leaving a margin of Rs.2,15,000. This kind of exercise was necessitated because the prosecution case was that the first accused namely the public servant acquired properties in the names of his close relatives namely A-2 to A-5. As already said since Sec.13(1)(e) is in two parts with regard to the disproportionate pecuniary resources possessed by the public servant, it has become necessary to ascertain the assets standing in the name of each and every accused so that it would be easy to appreciate the case of the prosecution as well as that of the defence. 22. As already said since Sec.13(1)(e) is in two parts with regard to the disproportionate pecuniary resources possessed by the public servant, it has become necessary to ascertain the assets standing in the name of each and every accused so that it would be easy to appreciate the case of the prosecution as well as that of the defence. 22. As already found as conceded by the prosecution as well as the defence, the pecuniary resources standing in the name of the public servant namely, the first accused, at the end of the check period is not disproportionate to his known sources of income. Now, it has to be found out whether the assets standing in the name of A-2 to A-5 are in fact the assets and pecuniary resources acquired by A-1 during his tenure of office as Minister of Education. 23. The second accused is the wife of A-1 and the accused No.3 is the daughter of A-1. Keeping the assets standing in the names of A-2 and A-3 aside, let us discuss with regard to the assets standing in the names of A-4 and A-5 to find out whether they are holding the assets standing in their name, only on behalf of the public servant or those assets were acquired only by the first accused during the tenure of his office as public servant. Insofar as A-4 is concerned, no doubt, he is said to be the cousin brother of A-1. But the case of A-4 is that he was doing money lending business, running a tutorial college, took contracts’ and was also doing real estate business. To substantiate his plea, he examined several witnesses on his side to prove that he lent money through promissory notes to various persons. Those who spoke about this fact are D.Ws.7 to 10, 15 to 29, 31, 34 to 35. Exs.D-10toD-12, 17 to 21, 28, 29, 35, 39, 41, 43, 46, 47, 49, 50, 52, 56, 57, 59, 60, 61, 63, 65, 66, 69 to 71, 74, 75, 77, 80, 85, 89, 95, 97, 100, 104, 106, 110, 113, 116, 117, 120, 121, 123, 125, 126, 128, 129, 131, 133, 136, 146 to 148, 151, 154, 155 and 159 to 162, promissory notes were marked. A cursory perusal of all the promissory notes appear to be only genuine promissory notes and relate to the years 1981 to 1995. A cursory perusal of all the promissory notes appear to be only genuine promissory notes and relate to the years 1981 to 1995. Barring a few promissory notes, the remaining promissory notes relate to prior to the check period. Therefore, it has been aptly proved that he was having money lending business from 1981 onwards. Moreover, D.W.14 one Mr.P.Dakshinamoorthy, belonging to the Communist Party of India deposes that A-4 was doing money lending business and that he was also running a Tutorial college and a Training Institute. He has also said that he attended a function at the Tutorial College run by A-4. D.W.33, one Mr.P.Mohammed Haneefa speaks to the fact that as per Ex.D-98, agreement between the witness and A-4, a building belonging to the witness was rented to A-4 for running a Tutorial College at the rate of Rs.750 p.m. and he also received Rs.7500 towards advance. From the evidence forth coming from the above said witness and the exhibits, it could be very well discerned that the fourth accused has his own way of livelihood and was carrying on various types of vocations for his earnings. When other accused also stand charged on the ground that they are holding the properties acquired by the public servant during the tenure of his office as such, it is the paramount duty of the prosecution to exclude the individual income that would have been earned by the particular accused by investigating into his assets, liabilities and earning during the check period. But, it is unfortunate that the evidence of P.W.64, Mr.Adiyapatham, Deputy Superintendent of Police, who is the main investigating officer in this case, is to the effect that he has not made any investigation into the individual income of A-4 and A-5. It is his candid admission during the course of cross examination by A-4. Therefore, when A-4 pleads that the assets standing in his name to the value of Rs.18,55,308 belong to him and earned by him, in the absence of any investigation into this aspect, the prosecution cannot claim to have proved that those assets were acquired only by the first accused. 24. Of course, Ex.P-24 is the statement of account of A-4 in his savings bank account in Karur Vysya Bank, Thambu Chetty Street, Trichy, in which as per Ex.P-64 pay in slip, an amount of Rs.5 lakhs was deposited on 8.11.1994. 24. Of course, Ex.P-24 is the statement of account of A-4 in his savings bank account in Karur Vysya Bank, Thambu Chetty Street, Trichy, in which as per Ex.P-64 pay in slip, an amount of Rs.5 lakhs was deposited on 8.11.1994. The savings bank account that was standing in the name of A-4 is said to be Savings Bank Account No.9609, whereas according to the prosecution, at the end of the check period i.e., 9.6.1995, the cash balance in the savings bank account in the name of A-4 was Rs.1,16,005 only as found in the worksheet filed by the prosecution. Moreover, while questioning A4 under Sec.313, Crl.P.C. no question was put to him to explain as to how he was able to deposit Rs.5 lakhs as per Ex.P-64, pay in slip on 8.11.1994 as shown in Ex.P-24, statement of account of his savings bank account. In the absence of affording any opportunity to explain this particular incriminating circumstance appearing in evidence against him, I am afraid, the said circumstance cannot be made use of against A-4. Therefore, insofar as the assets standing in the name of A-4 are concerned, the prosecution has failed to prove by not conducting investigation in the individual income of A-4 that the assets standing in the name of A-4 do not belong to A-4 and therefore A4 was holding the assets only on behalf of A-1. 25. Coming to the case of A-5, according to the prosecution, the value of disproportionate assets said to have been standing in the name of A-5 amounts to Rs.13,65,158. Even with regard to A-5, candidly admitted by P.W.65 in his cross examination, no independent investigation was made with regard to his income also. The case of the prosecution is that those assets do not really belong to A-5 and they belong only to the first accused. There is no direct evidence in this case to prove that the assets standing in the name of A-5 belong to the first accused, but on the other hand, it is the evidence of D.W.5, one Tmt.Muthammal that her land was cultivated by A-5 at the rate of Rs.1,500 per year towards lease. D.W.6, the Divisional Engineer, Highways spoke to the fact that from 1982 to 84, the 5th accused was taking contracts and Ex.D-6, certificate was issued by him. D.W.6, the Divisional Engineer, Highways spoke to the fact that from 1982 to 84, the 5th accused was taking contracts and Ex.D-6, certificate was issued by him. D.W.12, the Commissioner of Panchayat Union, Marungapur would say that A-5 is a registered contractor in the Panchayat Union and he has done works from the period 1980-81 to 1995-96. He has also filed Ex.D-32 containing details of work done by A5. D.W.13, Commissioner of Panchayat Union, Manaparai also spoke to the fact that A-5 was a registered contractor even from 1983-84 to 1985-86 and he also produced Ex.D-33 certificate. From this evidence, it is clear that A-5 has also his own way of earning. But, it is unfortunate that the Investigating Officers have not taken care to exclude his earnings from out of the assets standing in his name. It is the evidence of P.W.5, the then Manager, Karur Vysya Bank, Trichy Main Branch that the ledger extract regarding the savings bank account standing in the name of A-5 is Ex.P-42. According to him, an amount of Rs.3,25,000 as per Ex.P-44 and an amount of Rs. 1 lakh as per Ex.P-45, pay in slip were paid into the account of A5. Ex.P-44 was dated 20.6.1994 and Ex.P-45 was dated 18.6.1994. Insofar as this aspect is concerned, A-5 was asked about the above deposits and A-5 agreed that the accounts are correct. No question was put to A-5 that the amounts namely Rs.3,25,000 and Rs.1 lakh as paid into his account through Exs.P-44 and P-45 belong to A-1. Since such a question has not been put to the accused, mere availability of fund in his savings account cannot in any way lead to an inference that the amounts relate to the disproportionate acquisition of the first accused. Moreover, P.W.21, the then Superintending Engineer of P.W.D. Trichy speaks to the fact that on 7.11.1996, he inspected the house at 8/22, Kottai Street, Izhupur, Puddukottai District which is standing in the name of A-5 and gave the valuation report, Ex.P-111. According to him, the value of the house was Rs.7,35,000. With regards to this aspect, when A-5 was questioned, his answer was that the value of the house was Rs.4 lakhs and the same was inflated by the prosecution. According to him, the value of the house was Rs.7,35,000. With regards to this aspect, when A-5 was questioned, his answer was that the value of the house was Rs.4 lakhs and the same was inflated by the prosecution. Except that, there is no evidence to prove that these constructions were made only from and out of the disproportionate income received by the first accused during the tenure of his office. In case, the investigating agency would have attempted to investigate into the individual earnings and assets of the fifth accused, then anything over and above to individual earning would be segregated separately to infer that the excess only relates to the income derived by the first accused. But in the absence of such evidence, it cannot be presumed that all the assets standing in the name of A4 relate to the pecuniary resources of the first accused. Moreover, under Sec.313, Crl.P.C. when A-5 was asked to explain the circumstances appearing in evidence against him, he has stated that in the year 1984, there was a partition between himself and the first accused and from 1982 onwards he was undertaking contracts and he was also running a dairy farm besides holding lands for lease. According to him, the assets standing in his name were earned by him individually. In view of the above discussion, it may not be safe to hold A-5 guilty on the ground that he has abetted A-1 in acquiring pecuniary resources of property. 26. Coming to the assets standing in the name of A-2 and A-3, who are the wife and daughter of A-1 respectively, at the outset, it has to be remembered that A-2 was only a house wife and A-3 was a student at the time of the check period. According to the prosecution, the value of assets standing in the name of A-3 would be Rs.11,14,772. As earlier said, insofar as the assets standing in the name of A-3 are concerned, there is no dispute with regard to the quantum of assets by the defence. But so far as A-2 is concerned, there is some dispute and according to the prosecution the assets amount to Rs.35 lakhs while the defence case is that the assets of A-2 amounts to only Rs.29,00,067. Be it Rs.29 lakhs or Rs.35 lakhs, does not matter much. But so far as A-2 is concerned, there is some dispute and according to the prosecution the assets amount to Rs.35 lakhs while the defence case is that the assets of A-2 amounts to only Rs.29,00,067. Be it Rs.29 lakhs or Rs.35 lakhs, does not matter much. It has to be decided with regard to the individual earning of both these accused. It is the case of the defence that A-2 had agricultural income from 5.45 acres of dry lands amounting to Rs.82,880 during the check period and the lands were said to have been gifted to her by her mother. Interests in the savings bank account were shown as individual-earnings amounting to Rs.16,376. All other assets according to A-2 were gifted to her by A-4. Insofar as A-3 is concerned, the admitted income earned through agriculture in 1.20 hectares of wet land gifted to her by her grand mother fetched Rs.20,052. During the check period, there was a rental income of Rs.4,950 and income in the savings account Rs.4,385 and the total income was Rs.29,327 only. With regard to the other income, her case was that they were gifted by A-4. Insofar as the property standing in the name of A-2 are concerned, on 10.8.1994 a house site was purchased in the name of A-2 for Rs.3,23,000. On 7.11.1994 according to P.W.10, the District Registrar, Tirchy, A-2 purchased in her name a property from Mr.P.Selvaraj as per Ex.P-77. As per the sale deed executed, Ex.P-77, the value of the property was Rs.2,50,000. P.W.10 would further say that on 25.2.1995, a property was purchased from one R.V.Vijayalakshmi through Ex.P-79, sale deed by A-2, as guardian of minor Priya. The sale amount according to sale deed was Rs.3,25,000. While A-2 was questioned under Sec.313, Crl.P.C. regarding the above said purchases, A-2 admitted the purchases. Even as per the worksheet furnished by the defence regarding the personal income of A-2, agricultural income earned by A-2 during the check period was shown to be only Rs.82,880. Other amounts were shown by as interest from loan, income from business and N.R.I. gift cheques, etc. Her explanation to the assets standing in her name except out of the agricultural income was that she purchased movable and immovable properties by way of gift cheques received by her through A-4. 27. Other amounts were shown by as interest from loan, income from business and N.R.I. gift cheques, etc. Her explanation to the assets standing in her name except out of the agricultural income was that she purchased movable and immovable properties by way of gift cheques received by her through A-4. 27. It is the evidence of P.W.5, the Manager of Karur Vysya Bank, Main Branch, Trichy that Ex.P-38 is the ledger extract relating to the savings bank account standing in the name of A-2. The computer print out was marked as Ex.P-39. Through Exs.P-40 and P-41 pay in slips an amount of Rs.5 lakhs was paid into the account. Ex.P-40 was dated 3.1.1994. Ex.P-41 was dated 20.7.1993. It has to be remembered that the check period started from 18.5.1993. It is the further evidence of P.W.5 that in the savings bank account of A-2 on 25.1.1995, an amount of Rs.5 lakhs was paid as per pay in slip, Ex.P-65 and on 3.3.1995 another Rs.5 lakhs was paid through pay in slip, Ex.P-66. On the same day, yet another amount of Rs.5 lakhs was paid as per pay in slip, Ex.P-67. One month earlier, i.e., on 2.2.1995, an amount of Rs.5 lakhs was paid into the account through, pay in slip Ex.P-68. Thus, besides an amount of Rs.10 lakhs as per pay in slips, Exs.P-40 and P-41 relating to the year 1993-94 respectively, another amount of Rs.20 lakhs has been brought into the account of A-2 within a period of not even 40 days i.e., 25.1.1995 to 3.3.1995 which incoming amount goes unexplained, except that these amounts were given by A-4. P.W.6, Manager of Andhra Bank, Trichy Branch speaks to the fact that locker No.122 was kept by A-2 and A-4 jointly. P.W.23, the then Deputy Commissioner of Commercial Taxes on being summoned by the Deputy Superintendent of Police, Vigilance went to the bank on 2.9.1996 at about 2.30 p.m. and the locker was opened for taking inventory. Another locker standing in the name of A-3 and A-4 jointly bearing No.132 was also opened on the same day. Totally, there were 37 items of jewels and Ex.P-114, search list was prepared and signed by P.W.23 and P.W.6. P.W.34, the proprietor of Devi Jewellers, Trichy speaks to the fact that the second accused purchased jewels through cash bills Exs.P-202 to P-214. Totally, there were 37 items of jewels and Ex.P-114, search list was prepared and signed by P.W.23 and P.W.6. P.W.34, the proprietor of Devi Jewellers, Trichy speaks to the fact that the second accused purchased jewels through cash bills Exs.P-202 to P-214. The various dates of purchases are 16.12.1993, 24.1.1994, 28.1.1994, 18.3.1994, 31.3.1994, 28.7.1994, 28.11.1994, 26.12.1994, 31.3.1995, 10.2.1995, 28.2.1995, 20.3.1995 and 31.3.1995. Even as per the worksheet submitted by the defence, the total value of the jewels purchased by A-2 from M/s. Devi Jewellers is for Rs.8,88,086. 28. P.W.50, the accountant of Coimbatore Jewellers at Salem speaks to the fact that A-2 purchased jewels worth Rs.84,250 on 15.3.1995 and the carbon copy of bill was marked as Ex.P-265. On the same day, jewels were purchased for Rs.78,000 as per Ex.P-266. According to the witness, on 25.3.1995 jewels for a value of Rs.1,46,000 were purchased as per Ex.P-267, cash bill. Even as per worksheet filed by the defence from 15.3.1995 to 25.3.1995 jewels were purchased from P.W.50, Coimbatore Jewellers for Rs.3,08,250. When the above said evidence of P.W.34 and P.W.50 was put to A-2 during the course of questioning her under Sec.313, Crl.P.C. she had admitted the above said purchase, but failed to explain as to through his income, she purchased those jewels. She has only stated at the end of her examination that she purchased movables and immovables out of the gift cheques received by her through A4. 29. Coming to A-3, according to the evidence of P.W.10, District Registrar Trichy on 25.11.1994, the property found in Ex.P-69 sale deed was purchased from Shameem in the name of A-3. On 24.11.1994, another property as per Ex.P-71 was purchased in the name of A-3. Ex.P-69 was purchased for a value of Rs.1,90,000, and another property by Ex.P-71 was also valued to Rs.1,95,000. According to P.W.16, on 26.11.1994, the very same Shameem sold a property found in Ex.P-73 sale deed to A-3 for Rs.1,95,000 and on 28.11.1994, through Ex.P-75, property worth Rs.1,95,000 was purchased in the name of A-2 from the very same Shameen. From this it is very clear that from 24.11.1994 to 28.11.1994, within five days, nearly 15 lakhs were spent for the purpose of purchasing property, including probably the cost of stamps. It is the admitted case of the defence that A-3 was then a student not having any other earning except the minimum agricultural earning as stated supra. From this it is very clear that from 24.11.1994 to 28.11.1994, within five days, nearly 15 lakhs were spent for the purpose of purchasing property, including probably the cost of stamps. It is the admitted case of the defence that A-3 was then a student not having any other earning except the minimum agricultural earning as stated supra. When this fact was put to A-3, she has admitted that the properties were purchased in her name Even A-2 has also stated when the evidence of P.W.10 was put to her regarding the purchase of immovable properties as follows: According to the evidence of P.W.5, Ex.P-33 is the savings bank account standing in the name of A-3. The computer print out of ledger extract was marked as Ex.P-34. On 24.11.1994, an amount of Rs.5 lakhs was deposited in her account through pay in slips Exs.P-35 and P-36. She was admittedly a student during that period, having no other income except the meager agri-cultural income and when this fact was put to her during the course of examining her under Sec.313, Crl.P.C., she has admitted the accounts, but said that she did not know anything about it. Even with regard to the lockers standing in her name along with A-4, she has only stated that it is true that there was a locker but she did not know any other details. From the above discussion, it is very clear that so much of resources were standing in the names of A-2 and A-3 and the explanation appears to be that the said wealth was acquired by them at the instance of A-4. The emphatic case of defence is that A-4 was brought up by A-1 and because of love and affection towards his brother’s daughter, A4 was gifting all the amounts which he earned through his own sources. 30. A-2 and A-3 are admittedly, the wife and daughter of A-1. Over Rs.40 lakhs worth of properties are acquired in the name of A-2 and A-3 during the check period. According to Sec.13(1)(e), if the possession of these pecuniary resources and property stand in the name of any person on behalf of the public servant the public servant has (sic.) to satisfactorily account for the same. Over Rs.40 lakhs worth of properties are acquired in the name of A-2 and A-3 during the check period. According to Sec.13(1)(e), if the possession of these pecuniary resources and property stand in the name of any person on behalf of the public servant the public servant has (sic.) to satisfactorily account for the same. In this connection, the learned senior counsel appearing for the accused appellants submits that A-4 out of love and affection has given the same to A-2 and A-3. A-1 during the course of explaining the circumstances appearing in evidence against him under Sec.313, Crl.P.C. has stated that the property standing in his name are within the bounds of his own income and because of political animosity, the case has been filed against him and he has nothing to do with the properties standing in the case of others. Except this brief statement, he has not accounted for the properties standing in the name of his wife and daughter. He has not even started that the properties standing in the name of his wife and daughter were gifted by A-4 out of love and affection. There is absolutely no explanation forth coming from the first accused with regard to the properties standing in the name of A-2 and A-3. That means, he failed to satisfactorily account for the pecuniary resources of properties available with his wife and daughter, which is admittedly disproportionate to his known sources of income. Insofar as the properties standing in his name are concerned, they are within the limits. Therefore, he cannot be held liable under the first limb of Sec.13(1)(c) of the Prevention of Corruption Act. But so far as the second limb is concerned, regarding the properties standing in the name of A-4 or A-5, who are proved to be having individual income of their own, it is not necessary for the public servant A-1 to satisfactorily account for. But insofar as the properties and assets standing in the name of his own wife and daughter, it is his bounden duty to explain as to how they acquired such properties, particularly, when all the properties were purchased during the check period. It was only A-4 at para. But insofar as the properties and assets standing in the name of his own wife and daughter, it is his bounden duty to explain as to how they acquired such properties, particularly, when all the properties were purchased during the check period. It was only A-4 at para. 11 of his written submissions, who has stated that he was brought up from his childhood by A-1 and therefore wanted to show his gratitude towards them and therefore since he cannot give them so much amount of cash by gift, as it may attract income tax or gift tax, he consulted his friends and through his friend one Rajasekaran, he purchased N.R.I., cheques and gave the amount to A-2 and A-3. This explanation of A-4 is totally unacceptable, because A-4 was not having account prior to the check period and he has not paid any income tax prior to 1993 and the bank account was opened in the year 1994 only. Yet another important circumstance to belie the case of A-4 that he gave gifts to A-2 and A-3 is that the properties purchased by A-2 and A-3 with the help of A-4 are worth over and above Rs.40 lakhs whereas the properties and assets standing in the name of A-4 at the end of the check period was only Rs.18,55,308. If A-4 is a person who could have earned crores and crores of rupees, then it can atleast be accepted when he says that he gave to his brother’s wife and brother’s daughter nearly Rs.40 lakhs. When he was possessing only 18 lakhs worth of assets, he gave Rs.40 lakhs to A-2 and A-3 is not only unacceptable bat also inconceivable. Now, the burden is on the first accused to satisfactorily account for the property and assets standing in the name of his wife and daughter. But, he had miserably failed to account for the same. 31. Learned senior counsel appearing for the appellants argues that there is no evidence to prove that the amounts of A-1 was brought into N.R.I. account of A-2 to A-5. It is not a case where the accused stand charged for offence under Sec13(1)(d) to prove that he has abused his position as public servant or he obtained for himself or for any other person, pecuniary advantage by corrupt or illegal means. It is not a case where the accused stand charged for offence under Sec13(1)(d) to prove that he has abused his position as public servant or he obtained for himself or for any other person, pecuniary advantage by corrupt or illegal means. But where the assets standing in the name of his wife and daughter are admittedly far beyond the known lawful sources of income, it is his duty to account satisfactorily for the same. Therefore, there is no necessity for the prosecution to prove that the money of A-1 was brought into the account of A-2 to A-5. Insofar as N.R.I. accounts are concerned, what has been argued was to avoid tax, money of A-4 was put in N.R.I. accounts of A-2. and A-3. We are not on the question of illegality or otherwise of the making use of the N.R.I. accounts. Even in the absence of any N.R.I. accounts when A4 says that he gave so much of amount to A-2 and A-3, it is unbelievable and unacceptable and therefore it cannot be brought within the four corners of satisfactory accounting. 32. Learned senior counsel further argues that income tax returns filed by the accused were far before the registration of the first information report in this case, therefore, the income has been correctly accounted for and hence they are entitled to acquittal. In support of his plea, he relies on a ruling of the Apex Court rendered in the case of M.Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad, (1992)4 S.C.C. 45 . It was a case where an Assistant Engineer, Chief City Planner of Municipal Corporation, Hyderabad was charged with an offence under Sec.5(1)(e) read with 5(2) of the Prevention of Corruption Act, 1947, on the allegation that he acquired assets in his name and in the names of his dependents and was found in possession of pecuniary resources of property for a value of Rs.7,02,848 which was disproportionate to his known sources of income. While discussing the relevant aspects, the Apex Court has seen that income tax returns were filed in 1982 before the search of the house of the appellant and registration of the case and the appellant’s wife also filed wealth tax returns for the assessment year 1980-81, 1981-82 and 1982-83 on August 26, 1982 and that the son-in-law of the appellant also filed his income tax returns for the assessment years 1980-83 on August 26, 1982 and that those documents could not have been manipulated and concocted anticipating the prosecution in 1983. 33. Yet another ruling of the Apex Court was relied on by the learned Senior counsel for the very same proposition. It is rendered in the case of State of Madhya Pradesh v. Mohan Lal Soni, J.T. (2000)8 S.C. 333. That was a case where charges were about to be framed during which stage the accused wanted to consider the documents collected and produced by him before the Court and the same was rejected by the trial Court. But the High Court directed to consider those documents and inspite of that the trial Court framed charges without considering those documents. In that context, the Apex Court has held as follows: "The High Court in the order under appeal has elaborately considered the documents collected during the course of investigation and produced by the prosecution itself which were available at the time of framing charges It may be added that most of the documents relate to the income-tax assessment orders. All these documents pertain to the period prior to 26.3.1993. Some of them even relate to the year 1988. In the normal course the documents could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The document being the orders of assessment or return filed with the income-tax authorities on their face value supported the case of the respondent." The above said ruling was rendered because during the investigation, properties and assets belonging to the public servant, mother-in-law, father, brother and nephew were shown as assets of the respondent. The assets of his wife, who was an income-tax payer and a self earning member were also connected with the assets of the respondent. The assets of his wife, who was an income-tax payer and a self earning member were also connected with the assets of the respondent. Only in that view of the matter, the Hon’ble Supreme Court has held that the income tax returns showing the income of the with and kin of the public servant has to be accepted because those incomes were derived from their own resources and should have been excluded from the assets of the public servant. It is not the case here. Though, in this case, all these resources were shown in the income tax return, still there was no satisfactory account for resources disproportionate to the known sources of income of the public servant. In this case, we re concerned with the acquisition of resources. Admittedly, A-2 and A-4 have no other business or income except the income from the landed properties that has been deducted from disproportionate assets. Therefore, I am afraid the above said ruling could not be applied to the present case. 34. Even according to the ruling of the Apex Court M.Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad, (1992)4 S.C.C. 45 , it was argued that the High Court has committed an error in arriving at the figure by conveniently ignoring certain material pieces of evidence standing in favour of the appellant and also wrongly holding some of the items of the landed properties as benami in complete violation of the law. In that case, the case of the appellant/ public servant was that P.W.21 lent Rs.20,000 to the accused and another loan of Rs.20,000 was taken by the accused from Dr.K.Ravindra Reddi and the gifts received by the wife of the accused to the tune of Rs.8,750 were declared in the income tax return for 1975-76 and the accused sold the necklace which was also shown in the income tax and the father-in-law advanced an amount of Rs.5,000 which was also shown in the income tax return. Appreciating the above facts, the Hon’ble Supreme Court was pleased to hold that these documents could not have been manipulated and concocted anticipating the prosecution in 1983. If such a satisfactory accounting was given in this case by the first accused, then the above said ruling could be applied to the facts of the present case. But, there was absolutely no accounting much less satisfactory accounting forth coming from the first accused. If such a satisfactory accounting was given in this case by the first accused, then the above said ruling could be applied to the facts of the present case. But, there was absolutely no accounting much less satisfactory accounting forth coming from the first accused. 35. In the above said ruling, the essential ingredients to be proved by the prosecution in a case of this nature were stated as below: "To substantiate a charge under Sec.5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (i) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession. (3) it must be proved as to what were his known sources of income, i.e., known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Sec.5(1)(e) is complete, unless the accused is able to account for such resources or property." The very same passage rendered in the case of State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, (1981)3 S.C.C. 199 is relied on by the prosecution. From this it is clear that once the prosecution proved that the nature and extent of the pecuniary resources which were found in possession of a public servant or with somebody on his behalf were disproportionate to his known sources of income, then, the onus shifts to him to satisfactorily account for his possession of disproportionate assets. Though the accused is not bound to prove his innocence beyond all reasonable doubt, he should atleast bring out preponderance of probabilities. In this case, though the prosecution has not established that the assets disproportionate to known sources of income of public servant are found to be standing in the name of public servant, it has been overwhelmingly established that the disproportionate assets were found in possession of A-2 and A-3 who are none but the wife and daughter of the first appellant. In the absence of satisfactory account for such possession, the public servant has to be made liable under Sec.13(1)(e) of the Act. In the absence of satisfactory account for such possession, the public servant has to be made liable under Sec.13(1)(e) of the Act. When once the contention of A4 that he gifted the assets to A-2 and A-3 is negatived as either unbelievable or unreliable, then in the absence of any other explanation, it has to be held that those assets were acquired only by the first accused in the names of his wife and daughter. 36. The learned senior counsel further argues that the prosecution has filed to establish benami transaction and therefore the prosecution has to fail. In support of his contention he relied on a ruling of the Supreme Court rendered in the case of Krishnanand Agnihotri v. State of Madhya Pradesh, A.I.R. 1997 S.C. 796. wherein it has been held that the burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. It has been further held that the essence of benami is, the intention is shrouded in a thick veil which cannot be easily pierced through. But, such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjecture or surmises as a substitute for proof. This riling can very well be applied insofar as the assets standing in the name of A-4 and A-5 are concerned. When we apply the above said ruling insofar as the assets and resources that are found in the possession of A-4 and A-5 are concerned, no doubt, the prosecution has failed to prove that they are benami transactions Already, it has been concluded that in the absence of a separate investigation into the income of A-4 and A-5, the assets and resources possessed by them cannot be held to be that of the first accused. But, the abovesaid ruling is not applicable to the assets and resources standing in the name of A-2 and A-3 who are wife and daughter of the first accused, public servant. But, the abovesaid ruling is not applicable to the assets and resources standing in the name of A-2 and A-3 who are wife and daughter of the first accused, public servant. Insofar as these resources are concerned, they are not held benami, but the case of the prosecution is that out of the illegal income derived by the first accused, these properties movable and immovable found in possession of A-2 and A-3 were purchased. Therefore, the above said ruling is not available to the assets and resources standing in the names of A-2 and A-3. Insofar as the accounting is concerned, the learned Government Advocate relied on a ruling of the Supreme Court in the case of C.S.D.Swami v. The State, wherein the Hon’ble Supreme Court has held that the emphasis must be on the word “satisfactorily” and the Legislature casts a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. In this case, as I have already said the disproportionate resources have not been satisfactorily accounted for and the irresistible inference is, those resources standing in name of A-2 and A-3 were belonging only to A-1. 37. The learned senior counsel attacked the case of the prosecution on the ground that non-examination of one Rajasekaran was fatal to the prosecution. According to him, the 6th accused was acquitted due to non-examination of Rajasekaran, therefore the first accused also has to be necessarily acquitted because there is no proof that the money belonging to A-1 came to he hands of A-6 or that Rajasekaran has brought into N.R.I. accounts. The charge against A-6 is that he abetted A-1 by arranging deposits of foreign currencies in the accounts of N.R.Is. and arranged issue of cheques from these accounts in favour of A-2 to A-5 for a vital value of Rs.56,30,000 as gifts from the N.R.Is. having reason to believe that these amounts represented the unaccounted money of A-1. 38. The learned Special Judge in para 63 of his judgment had discussed about the charge against A-6 who was a chartered accountant. having reason to believe that these amounts represented the unaccounted money of A-1. 38. The learned Special Judge in para 63 of his judgment had discussed about the charge against A-6 who was a chartered accountant. As far as A-6 is concerned, the trial judge found that the prosecution had not let in any evidence to prove that A-6 had helped A-1 or A-4 in converting the ill-gotten money of A-1 into legal money and as a professional he had only given advice that N.R.I. cheques will not attract income tax. Though Rajasekaran has implicated A-6 in his statements before enforcement officer marked as Exs.P-215 and P-216, since he has not been examined before the Court, and his evidence has not been tested by the cross examination, contents of Exs.P-215 and P-216 cannot be held to be proved, and therefore he acquitted A-6. Rajasekaran was the only link to speak about the involvement of A-6 in the crime. Therefore, A-6 was acquitted. But according to the learned Senior Counsel if A-6 was acquitted due to non-examination of Rajasekaran insofar as the N.R.I. accounts are concerned, in the absence of examination of Rajasekaran, it has not been established that A-1’s money was brought into the accounts of N.R.I. Insofar as the N.R.I. accounts are concerned, though the trial Judge says inspite of non-examination of Rajasekaran, the evidence of P.Ws.39, 42, 43 and 52 shows that the N.R.I. accounts were operated by Rajasekaran, even in the absence of any proof that N.R.I. accounts were operated by Rajasekaran of A-4 or anybody else for that matter, the only point that required proof is the possession of disproportionate resources and property far and above known sources of income of the public servant. Now, insofar as the property standing in the name of A-2 and A-3 are concerned, they have been proved to be far beyond the known sources of income of A-1 to A-3. Under these circumstances, we need not go into the aspect of N.R.I. account at all. Now, insofar as the property standing in the name of A-2 and A-3 are concerned, they have been proved to be far beyond the known sources of income of A-1 to A-3. Under these circumstances, we need not go into the aspect of N.R.I. account at all. According to the learned senior counsel, the prosecution case is that A-6 in his statement before the Enforcement Officer that has been marked as Ex.P-217 has stated that he was introduced by D.W.I to A-1 in the circuit house, at which time A-1 enquired as to whether the gifts by N.R.I. attract tax and A-6 who was a chartered accountant informed him that the gifts by N.R.I. cheques will not attract tax. Therefore, he says that there is no link between the donor and A-1’s N.R.I. account and that Ex.P-217 is not a substantive piece of evidence. It is only a statement recorded from A-6. He being the co-accused, his statement can be made use of to lend assurance to the other available evidence. But merely because A-6 was acquitted and Rajasekaran was not examined, the prosecution need not fail, because it is not the duty of the prosecution to prove that N.R.I. accounts were operated for the purpose of proof of bogus gifts. 39. The prosecution is expected to only establish that the assets arid resources are far beyond and disproportionate to the known sources of income of the public servant. Thus, it becomes the duty of the public servant to account satisfactorily. Only in that process of satisfactory accounting, A-4 came forward with a theory of making use of N.R.I. accounts for the purpose of providing gift cheques to A-2 and A-3. Non-examination of Rajasekaran can only be commented to prove the link between A-1 and A-6 with regard to the N.R.I. accounts. No doubt, P.Ws.42, 43 and 52 would speak about their N.R.I. accounts being operated by Rajasekaran only and no doubt the said Rajasekaran is a material witness to be examined by prosecution to unfold the case of the prosecution, but non-examination of that moral witness only leads to adverse inference that in case he is examined, he cannot support the case of the prosecution as envisaged by Sec.114(g) of the Indian Evidence Act. At the most, there may be lack of proof regarding the link between A-1 and A-6; but that does not cut the root of the prosecution case itself with regard to the disproportionate resources and property standing in the name of A-2 and A-3, who are the wife and daughter of the first accused. 40. The learned senior counsel relies on a ruling of the Supreme Court rendered in the case of Habeeb Mohammad v. State of Hyderabad, A.I.R. 1954 S.C. 51, wherein it has been pointed out that it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth and not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Sec.114 of the Indian Evidence Act, but it casts a serious reflection on the fairness of the trial. At this stage it is essential to comment on the non-examination of the said Rajasekaran. During the course of investigation, the said Rajasekaran was considered to be a vital witness to link A-1 with the N.R.I., accounts, but at the time of trial abruptly he was left out without being examined in Court. None of the investigating officers has offered any explanation as to why he was left out. Naturally, the defence may not make an attempt to fill up the lacuna and therefore, there was no cross examination on that aspect also. But no doubt, it is the bounden duty of the prosecution to have produced and examined the said Rajasekaran who appears to be a star witness in the case insofar as the operation of N.R.I. accounts are concerned. Even the learned trial Judge has remarked in para 63 of his judgment that the said Rajasekaran was not examined before the Court for the reasons best known to the prosecution. Of course, the prosecution failed in its duty to produce and examine the said Rajasekaran. But in view of the facts and circumstances of the case, non-examination of Rajasekaran does not cut the root of the prosecution case itself. It only affects one part of the case with regard to the operation of N.R.I account. Of course, the prosecution failed in its duty to produce and examine the said Rajasekaran. But in view of the facts and circumstances of the case, non-examination of Rajasekaran does not cut the root of the prosecution case itself. It only affects one part of the case with regard to the operation of N.R.I account. There are overwhelming evidence to establish the resources standing in the names of A-2 and A-3 for which there was no satisfactory accounting made by the first accused. 41. The case of A-4 is that he declared his income in the V.D.S. with regard to his own accounted money and then paid Rs.19,80,000 towards tax. That is his statement in para. 12 of the written submissions filed by him along with his questioning under Sec.313, Crl.P.C. The learned senior counsel appearing for the appellants also contended that the first information was lodged in this case only as against A-1 on 20.8.1996 and the final report was filed against A-2 to A-5 also on 1.7.1998. Therefore, according to him even before the final report was filed on 16.12.1997 itself, A-4 voluntarily disclosed his income under the Voluntary Disclourse Scheme and paid an amount of Rs.19,80,000 towards tax. This contention of the learned senior counsel was made only to show that even before A4 was arrayed as an accused in the final report, he had made his voluntary disclosure and that should be accepted as a bona fide conduct on his part. But the learned Government Advocate (Criminal side) submits that the moment the first information report was registered against the first accused, the theory of the assets of A4 brought into the accounts of A-2 and A-3 was invented and in respect of the same only, this voluntary disclosure has been made by A-4. From these rival arguments, it is very much clear that A-4 has made voluntary disclosure only with a view to helping the first accused. Therefore, the very fact that the voluntary disclosure was made by A-4 after the registration of the first information report against A-1 shows that during investigation, the ill-gotten money was sought to be explained through some ways known to law. 42. Therefore, the very fact that the voluntary disclosure was made by A-4 after the registration of the first information report against A-1 shows that during investigation, the ill-gotten money was sought to be explained through some ways known to law. 42. The Hon’ble Supreme Court in the case of Nallammal v. State 1999 Crl.L.J. 3967, had held as follows: “Thus, the two postulates must coming together for crystallisation into the offence, namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it.” Therefore, it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. 43. Coming to the complicity of A-5, as already held, there was no proper investigation into the individual income of A-5 and the evidence was also adduced on behalf of A-5 that he was a contractor and was running a dairy farm also and therefore, the properties and resources standing in his name cannot be said to be held by him on behalf of A-1. Under the circumstances in the absence of further proof from the side of the prosecution that A-1’s money flow into the hands of A-5, A-5 cannot be held to be holding the assets and resources on behalf of A-1. Except certain property standing in the name of A-5, there is no other evidence that he either instigated or intentionally aided A-1 to commit the offence under Sec.13(1)(e) of the Prevention of Corruption Act. Even according to the prosecution at the end of the check period, there was a cash balance of Rs.1,01,079 in the savings bank account of A-5 and A-5 had constructed a house in his name for a value of Rs.7,35,000 and an investment was made by him under the Vaigai Cine Release in his own name for an amount of Rs.5 lakhs. Therefore, there is no proper proof that A-5 was holding assets on behalf of A-1 and hence A-5 has got to be acquitted of charge of abetment. 44. Coming to A-4, no doubt, as already held, the property standing in the name of A-4 could not be held to be the properties or resources belonging to the first accused, in the absence of any investigation into the individual income of A-4. 44. Coming to A-4, no doubt, as already held, the property standing in the name of A-4 could not be held to be the properties or resources belonging to the first accused, in the absence of any investigation into the individual income of A-4. Moreover, it has been clearly found that there is some evidence that he was also a contractor, doing real estate business and also doing money lending business and in the course of such variety of business, there were possibilities of his earning. There is also no proof that A-1’s money flew into the hands of A-4. In the absence of such proof, A-4 cannot be said to be holding the properties and resources in his name on behalf of the first accused Insofar as the offence of abetment is concerned, there is no evidence that A-4 either instigated A1 to commit the offence under Sec.13(1)(e) of the Prevention of Corruption Act or intentionally aided him in such an offence. Therefore, A-4 also cannot be held to be guilty of the offence of abetment. 45. It has been clearly found that the properties and resources standing in the names of A-2 and A-3 were not satisfactorily accounted for by A-1. A-4’s explanation was already found to be not acceptable. A-2 and A-3 are not the earning members of the family, except that they get a meager income from agricultural property. The defence of A-2 is that she purchased movable and immovable properties by using the gift cheques received by her through A-4. This theory was not accepted for the reasons already recorded. So far as A3 is concerned, she could not say anything as to how the properties came in her name. She, being a student, may not be knowing naturally. There ore, merely because A-2 and A-3 have acquired properties in their names whether they can be held to have abetted the First accused to commit the offence? The offence of abetment can be established only by providing that the abettor instigated the main offender to do the offence or conspired together or intentionally aided by any act or illegal omission, for the commission of the offence. Insofar as the first limb of Sec.107, I.P.C. is concerned, there is no evidence that either A-2 or A-3 instigated A-1 to acquire properties and resources disproportionate to his known sources of income. Insofar as the first limb of Sec.107, I.P.C. is concerned, there is no evidence that either A-2 or A-3 instigated A-1 to acquire properties and resources disproportionate to his known sources of income. There is also no evidence of any conspiracy for that end. The last limb of Sec. 107 is intentional aid by any act or illegal omission. No doubt, A-2 and A-3 are holding properties rather purchased properties in their names. There is ample proof to that effect. Whether mere purchase of properties including jewels would amount to intentional aid is a point to be decided. This last limb can be held to be established only either when A-1 informs A-2 and A-3 or A-2 and A-3 have knowledge that the ill-gotten money was being used for the purpose of purchasing properties in their names. In the absence of such a proof, A-2 and A-3 cannot be held to be liable for the offence of abetment. Insofar as the abetment of offences under the Prevention of Corruption Act is concerned, the law on the subject has been declared by the Hon’ble Supreme Court in the case of P.Nallammal v. State represented by Inspector of Police, 1999 Crl.L.J. 3967, their Lordships have discussed in detail even with regard to the abettability of the offence under Sec.13(1)(e) of the Prevention of Corruption Act and came to a conclusion that abetment can be held to be proved in such case only where the prosecution was able to prove the existence of certain facts as set out by their Lordships by way of illustrations. The relevant paragraph of the judgment is reproduced below: “Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abatements fitting with each of the three clauses in Sec.107 of the Penal Code vis-a-vis Sec.13(1)(e) of the Prevention of Corruption Act. The first illustration cited is this: If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly, if it is a proved position there cannot be any doubt that A has abetted the offence by instigation. Next illustration is this: Four persons including the public servant decide to raise a bulk among through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy. The last illustration is this: If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known sources of income to account, he requests A to keep the said wealth in A’s name, and A obliges the public servant in doing so, if it is a proved position, A is guilty of abetment falling under the”Thirdly“clause of Sec.107 of the Penal Code.” 46. Though Sec.13(1)(e) of the Act was abettable there is no evidence to bring A-2 to A-5 within the ambit of abetment Therefore, benefit of doubt has to be given to them. Insofar as the first accused is concerned, though he has not held resources in his name disproportionate to the known sources of his income, he managed to hold those resources in the names of his wife and daughter. He was Minister for education for a certain period in the Government of Tamil Nadu. He was expected to govern the State in the field of education during his tenure of office. 47. In the words of his Lordships R.P.Sethi J. of the Apex Court “Corruption is opposed to democracy and social order being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence- shaking of the socio- economic- political system in an otherwise healthy, wealthy, effective and vibrating society.” Keeping in mind the above observation, I hold the first accused guilty of an offence under Sec.13(1)(e) read with 13(2) of the Prevention of Corruption Act and there is no reason to disturb the judgment of the trial judge insofar as this appellant is concerned. 48. 48. In the result, the appeals preferred by A-2 to A-5 in C.A.No.748, 750, 751 and 752 of 2000 are allowed and the fine amount paid by them is ordered to be refunded, and the appeal preferred by the first accused in C.A.No.749 of 2000 stands dismissed and the conviction and sentence passed by the trial Court insofar as the first accused is concerned stands confirmed. 49.C.A.Nos.882 to 886 of 2000: The trial Court while delivering the judgment in the above case ordered confiscation of pecuniary resources of property in Annexure II (Ex.P-292) to the extent of Rs.77,14,337 to the State. Inasmuch as this Court acquitted the accused 4 and 5, since their individual income has not been investigated, the assets standing in the name of A-4 and A-5 in Annexure II (Ex.P-292) has to be excluded from the order of confiscation. With the result, the appeals filed in C.A.No.885 and 886 of 2000 alone are allowed and the other appeals are dismissed.