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Punjab High Court · body

2001 DIGILAW 915 (PNJ)

Sukhdev Singh v. State (Cbi)

2001-08-24

K.S.GAREWAL

body2001
Judgment K.S.Garewal, J. 1. Sukhdev Singh Kahlon was tried by the learned Special Judge, Chandigarh and found to have been in possession of assets disproportionate to his known sources of income to the tune of Rs. 8,34,086.22/- and accordingly convicted under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 on March 30, 1996. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000.00. In default, he was further ordered to undergo rigorous imprisonment for three months. Feeling aggrieved the officer has filed the present appeal. 2. S.S. Kahlon joined the Ministry of External Affairs, Government of India, New Delhi as Assistant in January 1960. For various periods he was posted at our Embassies/High Commissions at Aden, Bonn, Kathmandu and lastly at Paramaribo (Surinam). He had also had two stints at New Delhi. Sukhdev Singh Kahlon on return from Paramaribo in January 1984 was first appointed Assistant Regional Passport Officer, Chandigarh on April 24, 1984 later promoted as Acting Passport Officer on May 25, 1985. Investigation into his assets was undertaken by the Central Bureau of Investigation, Chandigarh and it revealed that he had assets disproportionate to his known sources of income to the extent of Rs. 10,37,135.76/- as on November 16, 1986. The period of checking of the income, expenditure and assets acquired was from February 10, 1984 to November 16, 1986. The conclusion of the Investigator was that out of this amount, Sukhdev Singh Kahlon had Rs. 2.42, 292.00 lying in 13 saving bank accounts, cash over spent money to the tune of Rs. 3,19,843.76 and he was found in possession of cash to the extent of Rs. 4,75,000.00 as on November 16, 1986. 3. The methodology adopted by the Investigator has been given in the charge-sheet filed before the Special Court as also in the judgment of the trial Court. It consists of six separate statements. Statement A is bank balance on February 10, 1984 of Rs. 5679.76. Statement B is the value of the assets possessed on February 10,1984 which had been converted to cash during the check period. This statement showed the total value of such assets at Rs. 2,26,164.58 and included among others the following major items of assets : (i) U.S. $ 6000.64 converted to Rs. 65044.08. 5679.76. Statement B is the value of the assets possessed on February 10,1984 which had been converted to cash during the check period. This statement showed the total value of such assets at Rs. 2,26,164.58 and included among others the following major items of assets : (i) U.S. $ 6000.64 converted to Rs. 65044.08. (ii) Sale of house No. 178/CR-Model Town Karnal (henceforth referred to as the Karnal House for Rs. 1,50,000.00 Statement C is the statement of income received during the check period from pay, allowances, arrears of pay, T.A. encash, Medical claims, rental income from House No. J-9/17-B, Rajauri Garden, New Delhi (henceforth referred to as the Delhi house), rental income on account of subletting of Government accommodation, sale proceeds of three lottery tickets and sale of gold ornaments. The total income as mentioned as Rs. 2,78,909.06 and includes the following major items : (i) Pay and allowances Rs. 72,694.90, (ii) Rental income from Delhi House Rs. 33,750.00, (iii) Proceeds from lottery ticket Rs. 26,995.00. (iv) Sale of gold ornaments by Gurlal Kaur, S.S. Khlons mother-in-law Rs. 93,359.00. Statement D. relates to the expenses incurred during the check period to the tune Rs. 6,68,868.14. The main items of expenditures are as under : (i) House rent paid for the check period Rs. 30,700.00 (ii) Expenses on account of shifting of residence Rs. 16855.85. Amounting to Rs. 4,75,000.00 and the assets acquired during the check period was Rs. 18200.00. The amount overspent was shown in statement E and assets acquired during the check period in statement F by adding the overspent amount and the assets acquired, the Investigator reached the figure of Rs. 10,37,135.75 as the assets which were disportionate to the income. 4. After completing a meticulous investigation going through the financial position of S.S. Kahlon with a fine toothed comb and obtaining the sanction from the President of India, S.S. Kahlons challan was filed under Section 2 read with Section 5(1) of the Prevention of Corruption Act, 1947. Charge was framed on September 13, 1990 against the accused for having acquired assets disproportionate to his income to the tune of Rs. 10,37,135.75. The accused pleaded not guilty and claimed trial. Trial Court recorded the testimony of 68 prosecution witnesses, whereafter statement of the accused was recorded under Section 313 Cr.P.C. and he was given a full opportunity to explain the case against him. 10,37,135.75. The accused pleaded not guilty and claimed trial. Trial Court recorded the testimony of 68 prosecution witnesses, whereafter statement of the accused was recorded under Section 313 Cr.P.C. and he was given a full opportunity to explain the case against him. He was called upon to enter defence and 27 defence witnesses were examined. 5. After summarizing the evidence of the prosecution and the defence, the trial Court ventured into discussion of some of the main items like recovery of Rs. 4.75 lacs in cash, the purchase of Chandigarh House and the balance in the 13 bank accounts. Kahlon was given some benefit with regard to a sum of Rs. 1,15,600.00 recovered on November 13, 1996 as this represented the amount of Shagan received by Kahlons daughter at the time of marriage. Benefit for a sum of Rs. 49,954.23 was given in respect of the payment of instalment for the Chandigarh House. Lastly there was some cash in hand of Gurlal Kaur, Kahlons mother-in-law, to the extent of Rs. 37526.00 and for this as well benefit was given. Therefore, the total quantum of disproportionate assets came down by Rs. 2,03,049.54 and the accused was found to have been in possession of assets worth Rs. 8,34,086.22. 6. At the very outset, it would be appropriate to briefly reiterate the settled guidelines or principles to assess whether the trial Court has reached the correct conclusion or whether the appellant has been unfairly treated and his explanation with regard to various items of income and expenditure found against him has not been considered. 7. A public servant commits the offence of criminal misconduct when he or any person on his behalf possesses, during the period of the public servant holding public office, assets for which the public servant cannot satisfactorily account for, if those assets are disproportionate to his known sources of income. Therefore, law requires an investigation into the assets held by the public servant either personally or by any person on his behalf during the period of his office but before coming to the conclusion whether or not the assets are disproportionate, the explanation of the public servant is to be considered. The prosecution is required to establish its case beyond reasonable doubt. The prosecution is required to establish its case beyond reasonable doubt. However, on the contrary, the accused in a case such as the present one is not required to offer an explanation beyond all reasonable doubt but is only required to give a satisfactory explanation and for this purpose he may rely on the preponderance of probabilities. 8. Learned counsel for the appellant has argued the appeal by way of offering explanations and giving an account of the major assets found in the possession of the appellant. Counsel has also addressed arguments regarding various postings enjoyed by S.S. Kahlon to argue that while on posting abroad, Kahlon frequently visited India and brought imported goods which he would sell to generate extra income. It has also been argued that the check period from February 10, 1984 to November 16, 1986 of only 2 years and 9 months was too brief in view of the long service from 1960 onwards and the frequent postings abroad which had not at all been considered. 9. The financial position of the appellant with regard to the assets held by him, his income and expenditure has been briefly described above. In first appeal it would be necessary to reappraise the evidence in respect of the various items of income and expenditure, however, it may be more appropriate to select a few major items and discuss them threadbare with reference to the evidence led by the prosecution, the explanations furnished by the appellant and reach a conclusion with regard to whether or not the explanation was satisfactory. 10. Itemwise discussion of the heads of income and expenditure is as follows : (a) Encashment of U.S. $ 6000.64 Prosecution has led evidence that Kahlon had encashed U.S. $ 4000.64 on February 15, 1984 and deposited a sum of Rs. 42,469.63 in his Saving Bank Account No. 13602. Appellant also encashed U.S. $ 2000 on July 22, 1984 and deposited a sum of Rs. 22,574.45 in his Saving Account No. 3964. Furthermore, he had kept U.S. $ 2000 in cash in his locker at New Delhi. The explanation of the appellant in answer to Question 14 was in the affirmative and deserves to be accepted. Therefore, the said two amounts can only be considered once and not twice as the learned Special Judge had mistakenly done. Furthermore, he had kept U.S. $ 2000 in cash in his locker at New Delhi. The explanation of the appellant in answer to Question 14 was in the affirmative and deserves to be accepted. Therefore, the said two amounts can only be considered once and not twice as the learned Special Judge had mistakenly done. (b) The sale of the Karnal house The Karnal house was sold by S.S. Kahlons wife Brinder Kahlon and mother-in-law Gurlal Kaur for a sum of Rs. 1.50 lac of which they received Rs. 10,000.00 in cash and Rs. 1.40 lacs through draft. This was also accepted by the appellant as per answer to question 22. The related question as to whether sale of this asset can be considered to be sale by the appellant shall be considered by the appellant shall be considered when the purchase of Chandigarh House is taken up for discussion herein below. (c) Pay and allowances during the check period The appellant received Rs. 72,694.90 towards pay, allowances and arrears, Rs. 2801.10 as T.A. claim and Rs. 2321.05 as medical claim. This was also accepted by the appellant in answer to question 26. (d) Delhi house The appellants Delhi house was rented out to M/s Holtec Engineers Private Limited for the period from July 1984 to June 1986 at Rs. 1500/- per month. The appellant received total amount of Rs. 34,500/- which he has accepted as correct in answer to question 31. (e) Proceeds from lottery The appellant acquired three prize winning lottery tickets of Rs. 10,000.00/- each in the names of two daughters namely Dimple and Sonal Kahlon and mother-in-law Gurlal Kaur. The proceeds of these lottery tickets were credited in their respective accounts. This position was also accepted by the appellant in answer to question 32. (f) Gold ornaments Old gold ornaments weighing 255.250 grams were sold by the appellants mother-in-law Gurlal Kaur to M/s. Nikka Mal Babu Ram Jain for Rs. 48,500.00/- and ornaments weighing 236.10 gms were sold by Smt. Gurlal Kaur to M/s Shiva Jeweller for Rs. 44,859.00/- These amounts were credited to the joint savings bank account No. 5814 with United Bank of India, Sector 17, Chandigarh of Gurlal Kaur and Brinder Kahlon on April 23, 1986 and February 9, 1986. The said transactions were also accepted by the appellant in answer to question 34. 44,859.00/- These amounts were credited to the joint savings bank account No. 5814 with United Bank of India, Sector 17, Chandigarh of Gurlal Kaur and Brinder Kahlon on April 23, 1986 and February 9, 1986. The said transactions were also accepted by the appellant in answer to question 34. (g) Chandigarh House The Chandigarh house was purchased on the basis of power-of- attorney in the joint names of the appellants wife Brinder Kahlon and mother-in-law Gurlal Kaur for Rs. 1.50 Lacs. The house had been originally allotted to Pratibha Dwivedi by the Chandigarh Housing Board on July 8, 1993. She executed agreement to sell, affidavit regarding sale, will, General Power of Attorney etc. in favour of the appellant and his son Ravi Kahlon which was duly registered before the Sub Registrar, Chandigarh on May 15, 1986. The sum of Rs. 1.50 lac had been paid by Gurlal Kaur and Brinder Kahlon from their joint saving account No. 5814 form the sale proceeds of the Karnal House mentioned above. This position has been accepted by the appellant in answer to questions 40, 41 and 42. However, subsequently a sum of Rs. 49,923.54/- and Rs. 9403.40/- deposited towards monthly instalments with Chandigarh Housing Board on May 13, 1986 and on later dates but these expenses were not accepted by the appellant in answer to questions 43 and 44. In his detailed explanation the appellant accepted that he has made some payment of instalments after sale of the house from June 1986 onwards. Prior to that the payments had been made by the previous owner. (h) Expenses towards alterations and renovation Prosecution led evidence to the effect that the appellant spent Rs. 1,61,000.00/- towards alterations and Rs. 79200.00/- towards and renovation of the Chandigarh House but this position was not accepted by the appellant in answer to question 45. Report of Shri R.M. Aggarwal Executive Engineer, CPWD, Chandigarh Ex. P.W66/43 in this regard was not accepted by the appellant in answer to questions 80, 81, and 82. In his detailed explanation in his statement under Section 313 Cr.P.C. the appellant has in fact admitted that he had carried out some repairs to the staircase and mumty but spent only about Rs. 25,000.00/-. (i) Recovery of Rs. 1,15,600.00/- on November 13, 1996. In his detailed explanation in his statement under Section 313 Cr.P.C. the appellant has in fact admitted that he had carried out some repairs to the staircase and mumty but spent only about Rs. 25,000.00/-. (i) Recovery of Rs. 1,15,600.00/- on November 13, 1996. This amount was recovered in cash from the possession of the appellant on November 13, 1986 but the learned Special Judge accepted the explanation of the appellant that this amount represented the shagans received at the time of the marriage of the appellants daughter and therefore gave the appellant benefit of this amount. (j) Recovery of Rs. 3,59,400.00 on November 15, 1986. This was the main item of recovery from the possession of the appellant on the morning of November 15. The appellant gave the following explanation : "I was taken to New Delhi on 14.11.1986 in the morning by CBI after my house and office were searched on 13.11.1986 and I returned from Delhi on 14.11.1986 at about 10-11 P.M. I found my wifes cousin Sh. Harbhajan Singh son of late S. Bakshish Singh sleeping in the front bed room and his jacket and pant etc. were hanging there. I could not have any talk with him as it was late and he was already sleep. In the morning of 15.11.1986, I was still asleep when I was woke up by my wife telling that CBI DSP had come. I went outside and requested the CBI people to come inside. I led them to the front bed room. DSP Jasbir Singh told me that he wanted to arrest me, and at this I requested him to permit me to get dressed and ready within 10 minutes which he did allow. My cousin who is a normal morning walker had already left for the morning walk and thus was not present in the said bed room where I found him sleeping on the previous night and I made DSP Jasbir Singh to relax there. When I returned after 10 minutes DSP Jasbir Singh was holding the jacket of my cousin brother Sh. Harbhajan Singh in his hand and he asked me as to from where the currency contained in the jacket had come. When I returned after 10 minutes DSP Jasbir Singh was holding the jacket of my cousin brother Sh. Harbhajan Singh in his hand and he asked me as to from where the currency contained in the jacket had come. I told him that this amount belonged to my cousin brother who was staying in the house and in the meanwhile my cousin also returned from morning walk and he also told the DSP that the amount belonged to him. However, DSP Jasbir Singh did not hear him and took the currency notes and me to the CBI Office telling my cousin that I was being arrested under TADA, in a Terrorist case. The cousin brother out of fear left Chandigarh for Kapurthala that very day". (k) Bank accounts Learned Special Judge has on page 67 of the judgment mentioned 13 bank accounts held by the appellant and his dependants. Out of these accounts some were in the name of appellants mother-in-law Gurlal Kaur, one in the name of appellants wife Brinder Kahlon jointly with their daughter Sonal Kahlon and some were jointly held by the appellant and his wife. The main accounts of the appellants were the following : (i) State Bank of India, Model Town, Karnal Account No. 3964 (Ex. PE and Ex. P.19) in which balance to the credit of S.S. Kahlon was Rs. 42020.63/-. (ii) Grindlays Bank, Connaught Place, New Delhi, Account No. 7857 (Ex. 87) jointly held by S.S. Kahlon and Brinder Kahlon and the balance in this account was Rs. 20,762.00/-. (iii) Bank of Baroda, Naraiana, New Delhi, Account No. 5073 (Ex. P. 92) in the name of S.S. Kahlon and the balance in this account was Rs. 43,554.80/-. (iv) Syndicate Bank, Connaught Circus, New Delhi, Account No. 13602 (Ex. P.W. 15/A) in the name of S.S. Kahlon and the balance in this account was Rs. 35,420.00/-. (v) Punjab and Sind Bank, Sector 17, Chandigarh, Account No. 27291 (Ex. P.115) in the name of S.S. Kahlon and the balance was Rs. 34,706.00/-. (vi) State Bank of India, Sector 22, Chandigarh, Account No. 41134 (Ex. P.W.31/C) in the joint names of S.S. Kahlon and Brinder Kahlon and the balance being Rs. 24,208.62. 11. 35,420.00/-. (v) Punjab and Sind Bank, Sector 17, Chandigarh, Account No. 27291 (Ex. P.115) in the name of S.S. Kahlon and the balance was Rs. 34,706.00/-. (vi) State Bank of India, Sector 22, Chandigarh, Account No. 41134 (Ex. P.W.31/C) in the joint names of S.S. Kahlon and Brinder Kahlon and the balance being Rs. 24,208.62. 11. Beginning the discussion with the bank accounts, the factual position regarding the cash balance in the various accounts held by S.S. Kahlon at the commencement of the check period has been admitted by him to be Rs. 5679.73/- as per answer to question 18. The cash balance in the above six accounts which had been put in the main accounts held by S.S. Kahlon is Rs. 2,00,672.05/-. Even if, the Grindlay Bank account and the State Bank of India (Sector 22) Chandigarh account is considered to be a joint one between S. Kahlon and his wife Brinder Kahlon and S.S. Kahlons half share being only Rs. 10,381.00/- and Rs. 12,104.31/-, the above figure total can be reduced by Rs. 22485.31/-, which still leaves the balance amount standing to his credit at the end of the check period as Rs. 1,78,186.74/-. 12. If one goes to the statement of the appellant recorded under Sections 313 Cr.P.C. it becomes clear that the amount standing in the various accounts have not been challenged by him. In the detailed explanation given by the appellant at the end of his statement under Section 313 Cr.P.C. there is no explanation forthcoming regarding these accounts. 13. It will be seen from the above that the main cash assets of the appellant held by him during the check period are U.S. $ 600.40, cash assets in banks Rs. 1,78,186.74/-, cash recovered on November 13,1986 Rs. 1,15,600.00/-, cash recovered on November 15, 1986 Rs. 3,59,400.00. The appellant encashed U.S. $ 600.64 in February/July 1984 and deposited a sum of Rs. 42,469.63/- and Rs. 22,574.45/- in two of his bank accounts mentioned above. Therefore he is entitled to deduction of these amounts. Resultantly the cash in the banks is Rs. 1,13,142.66/- The appellant has offered no explanation whatsoever as to from where he received these amounts and how he came to possess such a large amount of cash at end of the checking period whereas at the beginning the amount standing to his credit in various banks was only Rs. 5,079.63/-. Resultantly the cash in the banks is Rs. 1,13,142.66/- The appellant has offered no explanation whatsoever as to from where he received these amounts and how he came to possess such a large amount of cash at end of the checking period whereas at the beginning the amount standing to his credit in various banks was only Rs. 5,079.63/-. There can be no hesitation in holding that the amounts standing to the credit of the appellant in his six accounts was totally and completely disproportionate to his income and he had no satisfactory or viable explanation to offer. This is the position even after the amounts standing to the credit of his wife Brinder Kahlon, mother-in-law Gurlal Kaur and daughter Sonal Kahlon have been excluded even though in respect of these amounts as well the appellant had no satisfactory explanation. 14. As regards the Chandigarh house the evidence before the trial Court was that a sum of Rs. 2,09,326.94/- had been spent in acquiring it. Out of this a sum of Rs. 1.50 lac had been paid by Gurlal Kaur and Brinder Kahlon to Pratibha Dwivedi and two amounts of Rs. 49,923.54/- and Rs. 9403.40/- had been deposited towards monthly instalments with the Chandigarh Housing Board. The trial Court gave the appellant the benefit of the deduction of Rs. 49,923.54/- but neither of Rs. 1.50 lacs nor of Rs. 9403.40/-. 15. The exact position regarding the Chandigarh house is revealed in the evidence of Shri K.K. Dwivedi (P.W.63). Shri Dwivedi was at one stage posted as Collector, Central Excise and Customs at Chandigarh and his wife Pratibha had been allotted House No. 1212, Sector 43-8, by the Chandigarh Housing Board. This house had been sold by her to Brinder Kahlon and Gurlal Kaur. S.S. Kahlon admitted this as correct and also accepted as correct the fact that Pratihba Dewivedi had executed in agreement to sell, affidavit, will, general power of attorney regarding the further sale of the house in favour of himself and his son which were duly registered on May 15, 1986. However, the case of the prosecution itself was that a sum of Rs. 1.50 lac had been paid to the seller by Brinder Kahlon and Gurlal Kaur from their joint account with United Bank of India, Sector 17, Chandigarh Account No. 5814. This must also be excluded from the appellants expenditure. However, the case of the prosecution itself was that a sum of Rs. 1.50 lac had been paid to the seller by Brinder Kahlon and Gurlal Kaur from their joint account with United Bank of India, Sector 17, Chandigarh Account No. 5814. This must also be excluded from the appellants expenditure. On May 13, 1986 a sum of Rs. 49,924.00/- was deposited in the Bank of Rajasthan in the account of Chandigarh Housing Board towards 25 monthly instalments of Rs. 1585/- and other charges in respect of the said house. With regard to this payment, the appellant received benefit of deduction. The subsequent payment of instalments from June, 1986 onwards was not accepted by the appellant in answer to question 44 but in answer to the last question where the appellant gave his detailed explanation he admitted that all instalments after completion of sale deed had been deposited by him. Therefore, this amount of Rs. 9403.40 must be deemed to have been paid by the appellant, this being the only expense incurred on the Chandigarh house by the appellant. 16. The trial Court accepted that a sum of Rs. 2,40,200.00/- had been spent on renovation and alterations of the Chandigarh house by the appellant. Out of this a sum of Rs. 1,61,000.00/- was stated to have been spent on alterations and the balance Rs. 79,200.00 towards renovation of the house. The prosecution had relied solely on evaluation report Ex. P.W.66/43 which had been "proved" by Gurdial Singh, P.W.68. This witness worked as a Cashier with CPWD, Chandigarh and was examined to prove the signatures of Shri R.M. Aggarwal on the above report and on the three sheets attached therewith. Learned counsel has argued that simply proving the report is meaningless. The Engineer who had examined the structure should have been examined as a witness to depose with regard to what he had actually examined, when he had visited the spot, what was the method used to give his assessment and who were the witnesses present when the inspection was done. There is nothing to show that the inspection was done after associating the appellant or in his presence. The argument of the counsel is valid and deserves to be accepted. The manner in which the alterations and renovations had been sought to be proved by means of a report without examining the maker thereof, is wholly unsatisfactory. There is nothing to show that the inspection was done after associating the appellant or in his presence. The argument of the counsel is valid and deserves to be accepted. The manner in which the alterations and renovations had been sought to be proved by means of a report without examining the maker thereof, is wholly unsatisfactory. The seller of the flat had made some alterations/renovations. The flat was in occupation of a tenant, it was in a livable state at the time it was sold. S.S. Kahlon has accepted that he had spent Rs. 25,000.00/- on alterations/renovation of the property by repairing the staircase and the mumty. Therefore, the expenditure under this head deserves to be reduced to Rs. 25,000.00 only and report Ex. P.W.66/43 must be ruled out of consideration altogether. 17. The main item of cash assets possessed by the appellant was the sum of Rs. 3,59,400.00/- recovered from his possession on November 15, 1986. The evidence in this regard deserves to be considered in some detail because this recovery, according to the appellant was from the possession of his wifes cousin Harbhajan Singh who had spent the night at the Kahlon house. 18. The appellants tale of woe began in November, 1986 with the registration of RC 25 86 SP/Chandigarh and the investigation of this case by DSP Jasbir Singh (P.W.60). On November 13, 1986 DSP Jasbir Singh conducted a thorough search of the house of the appellant from 2.30 P.M. to 9.00 P.M. in the presence of two witnesses. During the search cash worth Rs. 1,15,600.00/- was recovered from a from steel almirah (the learned Special Judge took this to be a shagan amounts received by the appellants daughter and gave the appellant benefit thereof). Besides this the Investigator recovered liquor, locker keys, household items and jewellery. The jewellery was got assessed from the jeweller at Rs. 1,54,030.00/- Again on November 15 at about 5.30 A.M. DSP Jasbir Singh went to the appellants house to arrest him in RC 25 86 but found the house locked from inside. On ringing the bell the door was opened by the appellants wife who warned the appellant. Thereafter DSP Jasbir Singh saw the appellant running towards the back of the house carrying six bundles. The appellant was caught and it was found that the bundles contained currency notes worth Rs. 3,59,400.00/-. The amount was seized. 19. On ringing the bell the door was opened by the appellants wife who warned the appellant. Thereafter DSP Jasbir Singh saw the appellant running towards the back of the house carrying six bundles. The appellant was caught and it was found that the bundles contained currency notes worth Rs. 3,59,400.00/-. The amount was seized. 19. The version of the appellant was that his house was thoroughly searched on November 13. On the following day, the appellant was taken to Delhi by Inspector V.K. Bindal (P.W.66) for search of the bank lockers and verification of bank accounts in Delhi. They returned the same evening. Further case of the appellant was that his wifes cousin Harbhajan Singh had come to visit him at Chandigarh on November 14 but by the time the appellant returned, Harbhajan Singh had already turned in so he was unable to meet him. On the morning of November 15 by the time DSP Jasbir Singh reached the house, Harbhajan Singh had already gone for a morning walk and left his jacket and trousers in the guest room. When DSP Jasbir Singh told the appellant that he was to be arrested, the appellant took some time to get ready while DSP Jasbir Singh waited in the guest room. After some time when the appellant came to the room he found DSP Jasbir Singh holding Harbhajan Singhs jacket containing the cash. On being asked the appellant told him that the amount belonged to his cousin Harbhajan Singh. In the meanwhile Harbhajan Singh also returned home. In cross-examination DSP Jasbir Singh accepted that it had been brought to his notice that the amount belonged to the appellant, relative and he had also found a Sikh gentleman present in the house aged about 55 years, clean and slim, with a fair complexion. Furthermore, DSP Jasbir Singh accepted that Sikh gentleman claimed this amount but he was told to file a proper claim during the course of investigation which was never done. 20. Harbhajan Singh was examined as DW.13. He stated that he had come to Chandigarh on the evening of November 14 and had gone to sleep at 9.30 P.M. He had hung his jacket containing Rs. 3,59,400.00/- in the cupboard. In the morning he left for a walk at 5.00 A.M. and when he returned at 5.45 A.M. he found the police in the room. He stated that he had come to Chandigarh on the evening of November 14 and had gone to sleep at 9.30 P.M. He had hung his jacket containing Rs. 3,59,400.00/- in the cupboard. In the morning he left for a walk at 5.00 A.M. and when he returned at 5.45 A.M. he found the police in the room. He told the DSP that the amount taken out from the jacket belonged to him but he had been advised by the DSP not to come in the picture as the controversy was serious relating to a case under TADA. This made Harbhajan Singh scared and he returned to Kapurthala. In cross- examination Harbhajan Singh stated that the money had come from the sale of paddy for Rs. 1.00 lac and some amount had been left at home. He also admitted that he did not make any application before any Court to claim this amount and also did not complain against the C.B.I. due to fear. The trial Court carefully considered the circumstances relating to the recovery of this amount and rejected the defence version altogether. The evidence of Harbhajan Singh (DW.13) was found to be unreliable for various reasons as he never appeared before the Investigating Officer to claim the amount, did not claim the amount from any Court, did not produce any documentary evidence in the form of withdrawal from a bank to prove that he possessed the amount in cash, gave no evidence of the source of money, no property deal was struck by Harbhajan Singh, it was improbable that he would keep a huge amount in the jacket and go for walk and there was no corroboration of his version. He was a close relative of the accused and an interested person but had not spoken to the appellant when the appellant returned from Delhi on the previous evening. 21. Learned counsel has argued that on November 13, a thorough search of the premises had been conducted expanding over 6-1/2 hours. Considerable amount of cash, jewellery and other assets were recovered. Therefore, it was impossible that the amount recovered on November 15 could have been remained undetected on November 13. On November 14, the appellant was taken to Delhi by Inspector V.K. Bindal, therefore, he would have no chance or occasion to collect this money and bring it to his house. Considerable amount of cash, jewellery and other assets were recovered. Therefore, it was impossible that the amount recovered on November 15 could have been remained undetected on November 13. On November 14, the appellant was taken to Delhi by Inspector V.K. Bindal, therefore, he would have no chance or occasion to collect this money and bring it to his house. He has also argued that the main witness of the prosecution had admitted that there was a person who had claimed the amount to be his own after the recovery had been made. This explanation was sufficient explanation for the presence of the amount in the appellants house, and should be accepted as the preponderance of probabilities were in favour of the appellant. 22. While it is true that DSP Jasbir Singh admitted that a claim was made by a relative of the appellant, the explanation put forth is not worthy of acceptance. The appellants house had been raided on November 13 and appellant had been taken to Delhi on November 14. Therefore, on the morning of November 15, at 5.30 A.M. the appellant was simply caught off-guard. Harbhajan Singh being a close relative may have been on a visit to the Chandigarh and staying with his cousin the appellants wife. He may have been called to provide support while the investigations were on. Harbhajan Singh has not come forward with any valid or reasonable excuse as to why he was carrying such a huge amount with him particularly as terrorism was rife and no sensible person would take the risk of carrying Rs. 3,59,400.00/- in cash when he could safely put it in bank and issue a cheque or draft for whatever transaction he proposed to execute. Harbhajan Singh did not have any document regarding his income tax because his income was agricultural. No astute person would carry cash when other means of money transfer were available. On the other hand, the claim made by Harbhajan Singh that he came with money to help his close relative, is simply to explain the cash found in the house. Neither the appellants explanation with regard to this amount nor the evidence of Harbhajan Singh is worthy of creadence. The story of the money taken out of a jacket is palpably false, a bit like a magician taking a rabbit out of a hat. The money was in notes of Rs. 100. Neither the appellants explanation with regard to this amount nor the evidence of Harbhajan Singh is worthy of creadence. The story of the money taken out of a jacket is palpably false, a bit like a magician taking a rabbit out of a hat. The money was in notes of Rs. 100. 3540 notes of this denomination cannot be even stuffed in all the pockets of an overcoat what to speak of a jacket. In any case Harbhajan Singh had gone for a walk on a cold winter morning he would have donned the jacket instead of leaving it hanging in a cupboard with the money. The question also arises as to why Harbhajan Singh did not carry the cash in a brief case or a bag but instead chose to carry it in the pockets of a his jacket. The whole story is a fabricated one. 23. It is no doubt true that the appellant had examined certain witnesses in support of his case that the money belonged to Harbhajan Singh but the witnesses were close relations. Gurlal Kaur (DW.21) was appellants mother-in-law, Sonal Kahlon (DW.22) was his daughter. Even Harbhajan Singh himself was a close relation, not much reliance can be placed on such close related witnesses. A large sum of money was recovered from the appellants house. The appellant put forth an explanation which cannot be accepted. If the money had been found laying in a bag in the house then the appellants version that it belonged to Harbhajan Singh may have been even more difficult to accept. It seems it was for this reason that the money was stated to have been recovered from Harbhajan Singh jacket in order to fix its ownership on Harbhajan Singh. Presence of such a large amount of cash should not be at all difficult to explain if it was the result of a bona fide legal transaction, e.g. sale of property, loan from a friend/relative, being the amount kept in safe custody on behalf of a friend or relative etc. By putting a false and unacceptable explanation the appellant has made the case against him even stronger. It may be noted that Harbhajan Singh did not file any claim for the release of the recovered amount before any authority. This makes the prosecution case more stronger. By all accounts the prosecution had successfully established that the sum of Rs. By putting a false and unacceptable explanation the appellant has made the case against him even stronger. It may be noted that Harbhajan Singh did not file any claim for the release of the recovered amount before any authority. This makes the prosecution case more stronger. By all accounts the prosecution had successfully established that the sum of Rs. 3,59,400.00/- in cash was recovered from the house of the appellant on the morning of November 15, 1986 and that this amount constituted cash assets which were disproportionate to his income. 24. Gurlal Kaur (DW.21) had only one daughter Brinder Kahlon who was married to the appellant. Gurlal Kaurs husband expired in 1962. He owned two Marabas (50 acres) of land in Behlolpur and some of which was sold for Rs. 65,000/- before 1962 and the remaining land was being looked after by her younger brother Sukhinder Pal Singh who pays to her Rs. 500/- per month. Her husband at the time of his death had left behind a sum of Rs. 2 lacs in cash and jewellery. Gurial Kaur and Brinder Kaur had inherited the Karnal house after the death of Gurlal Kaurs husband. Gurlal Kaur was in receipt of rent for a portion of this house. It will be seen from these circumstances that Gurlal Kaur was a lady of means who had considerable property and also possessed the means to acquire jewellery. As Brinder Kahlon was her only child it was natural for Gurlal Kaur to come and live with the appellants family after they had moved to Chandigarh. The Karnal house was sold for Rs. 1.5 lacs by Gurlal Kaur and Brinder Kahlon and they purchased the Chandigarh house for the same amount. The assets of the appellants included the movable and immovable property, owned and possessed by Gurlal Kaur but for these properties the appellant has given satisfactory explanation. Therefore, movable and immovable assets of Gurlal Kaur must necessarily be taken out from the assets owned and possessed by the appellant. Indeed for similar reason the bank accounts maintained by Gurlal Kaur jointly with her daughter Brinder Kahlon and the bank accounts held by Brinder Kaur and her daughter Sonal Kahlon have been satisfactorily explained and ruled out of consideration. 25. Consequently the sale proceed of the Karnal house amounting to Rs. 1.50 Lacs must be deducted from statement B (assets held on February 10, 1984). 25. Consequently the sale proceed of the Karnal house amounting to Rs. 1.50 Lacs must be deducted from statement B (assets held on February 10, 1984). A sum of Rs. 93,359.00/- being the sale price received by Gurlal Kaur for sale of gold ornaments must be deducted from statement C (income received during check period). Benefit of Rs. 49,923.54 was already given to the appellant by the learned Special Judge but for some reason the benefit of Rs. 1.50 lac being amount paid for the purchase of the Chandigarh house by Gurlal Kaur and Brinder Kaur should also have been given. Resultantly the bank balances held by Gurlal Kaur and Brinder Kahlon and Sonal Kahlon must be deducted from the balance amounts in the various banks. 26. On the basis of a reappraisal of the financial position of S.S. Kahlon and after excluding income, assets and expenditure of Gurla Kaur and Brinder Kaur the position which emerges is as follows : Original Revised A Rs. 5,679.73 Rs. 5,679.73 B Rs. 2,26,164.48 Rs. 76,164.48 C Rs. 2,78,909.06 Rs. 1,85,550.06 D Rs. 6,61,868.14 Rs. 2,46,744.60 E Rs. 1,51,114.87 Rs. 20,649.27 (overspent) (surplus) F Rs. 8,86,020 Rs. 4,41,893.39 G Rs. 10,37,135.76 Rs. 4,51,893.39 [Note : The investigator [Note : This is the had reached this figure sum of the balance by adding (E) and (F) in the bank accounts whereby the overspent and cash recovered on amount got included November 15 minus twice.] the surplus amount] 27 Consequently the quantum of disproportionate assets held by the appellant on November 15, 1986 is as Rs. 4,51,893.39. The explanations offered by the appellant have been unsatisfactory and are rejected. 28. There are two important factors which need to be considered while determining the quantum of sentence. The appellant had not been shown to have misused his authority as Passport Officer by issuing passports to undesirable individuals for consideration. There is nothing on the record to establish any such mal-practice. Furthermore, the appellant was suspected of having committed offences under the TADA Act but after investigation no prosecution was launched against him. The disproportionate assets have been scaled down to about Rs. 4.51 Lacs. The case against the appellant took nearly four years at the stage of investigation and over five years during trial. Furthermore, the appellant was suspected of having committed offences under the TADA Act but after investigation no prosecution was launched against him. The disproportionate assets have been scaled down to about Rs. 4.51 Lacs. The case against the appellant took nearly four years at the stage of investigation and over five years during trial. Keeping all the above factors in view the conviction of the appellant is maintained but sentence is reduced from three years to one year, sentence of fine is also maintained. Resultantly, the appeal is dismissed subject to the above modification in the sentence. 29. The appellant shall surrender forthwith to undergo the remaining sentence. As the appellant has been suffering from chronic renal failure and is on maintenance haemodiallysis as per medical reports filed along with Criminal Misc. No. 40039 of 1999, his latest medical condition shall be taken into consideration while committing him to custody.