JUDGMENT Virender Singh, J. - Dalip Singh of Nihal Singh stands convicted vide impugned judgment of learned Special Judge, Gurdaspur dated 8.10.1990 under section 5(1)(e) of the Prevention of Corruption Act, 1947 and has been sentenced to undergo RI for two years and to pay a fine of Rs. 2000/-, in default of payment of fine to further undergo RI for three months. 2. The appellant was working as Sectional Officer (designated as Junior Engineer afterwards) in the P.W.D. B&R, Batala during the period from 1.1.1981 and 31.10.1984. He was booked by the Vigilance Bureau, Gurdaspur on the allegation that during the said period, he by corrupt means was in possession of property and was not able to satisfactorily account for pecuniary sources which were disproportionate to his known sources of income. 3. After completing investigation, the appellant was challaned to face trial. 4. The prosecution in support of its case has examined as many as 17 witnesses. I need not enter into unnecessary discussion of all the witnesses because as per the finding of the trial court itself, the appellant has not been able to account for disproportionate assets of Rs. 42,218.45 which in fact is the difference between the income of Rs. 1,57,621.70 and the expenditure of Rs. 1,99,840.45. Besides this, the learned Special Judge has observed that the appellant was also possessing a property worth Rs. 24,000/- which he purchased on 16.1.1981 as per sale deed Ex. PC and this asset is also over and above the said figure. 5. The defence taken up by the appellant as emerges from the statement recorded under section 313 Criminal Procedure Code is that he and his wife are earning hands and since the family consisted of two persons only, they had saved considerably from the salaries and that some loan was also taken from the relatives for the construction of the house. Besides this, some jewellery was also sold and that the investigating officer had not taken all these facts into account. 6. In support of his defence, the appellant had examined one J.D. Bhanot, an official of Punjab National Bank, Gurdaspur showing that Fauja Singh had withdrawn an amount of Rs. 7000/- from the Bank on 10.11.1983 and get prepared a draft in favour of the appellant. DW2 is Charanjit Singh who proved the pronote showing that the appellant had taken a loan of Rs. 7000/- from the Bank on 10.11.1983 and get prepared a draft in favour of the appellant. DW2 is Charanjit Singh who proved the pronote showing that the appellant had taken a loan of Rs. 19,200/- from him on 15.4.1983. DW3 Kewal Krishan has proved the pronote written by his father Rattan Chand as Rattan Chand had died on 17.10.1989. Prem Lal has been examined as DW4. He is running a jewellery shop at Gurdaspur. He has also proved that some gold ornaments were sold to him by Sukhwant Kaur wife of the appellant for Rs. 17,343/- on different dates and for each transaction the vouchers were prepared. The learned trial Court was not convicted with the explanation given by the appellant and as such has convicted and sentenced him as indicated above. Hence, this appeal. 7. I have heard Mr. TPS Mann, Advocate with Mr. Sandeep Vermani, Advocate learned counsel for the appellant and Mr. Sandeep Jain, learned Assistant Advocate General, Punjab has also been heard. With their assistance, I have gone through the entire record. 8. Mr. Mann has vehemently contended that the calculations done by the learned trial court on different counts for arriving at its conclusion against the appellant is not in the right direction. Strengthening his arguments, he submitted that so far as the amount of Rs. 24,000/- for the purchase of plot is concerned, the prosecution agency itself has not taken this fact into account seriously and as such any finding in this regard by the trial would be, thus, against the basic case of the prosecution. 9. Mr. Mann further contended that the prosecution is, thus, relying very heavily upon the valuation report Ex. PH prepared by PW15 Devinder Singh Bath, SDO Irrigation Department, who had prepared the estimate regarding the probable costs of construction of the house of the appellant situated at Pathankot and calculated the construction at Rs. 1,68,789.00. The basis of the said calculation was Punjab P.W.D. (B&R) manual. The learned counsel contended that may be the learned trial court has deducted 20% of the estimated value as per the manual but in fact the present appellant being a technical man would have certainly taken the cost to much more on lower side and as such it cannot it cannot be said by any rule of thumb that in fact the total value would be Rs. 1,35,031.00 and not less. 1,35,031.00 and not less. The learned counsel, thus, submits that there can also be variation in this regard. 10. Mr. Mann further contended that the learned trial court has applied the guide-lines laid down by the Vigilance Bureau that 2/3rd of the salary income in case of the husband and wife being earning hands has to be taken as the living expenditure but on this count as well no yardstick can be applied as it depends upon the basic constitution of the family. In the present case according to the learned counsel, there were only two family members and both were earning hands as the wife of the appellant was working as a Clerk in the office of S.D.O. (Civil) Pathankot and both were saving a considerable amount out of their salary. The calculation done by the trial court in the present case thus is not in the right perspective, the learned counsel so contends. In support of his contentions, the learned counsel for the appellant has relied upon Hemanta Kumar Mohanty v. State of Orissa, 1973(1) SLR 1121 and Krishanand Agnihotri v. State of M.P., 1977 Crl. L.J. 566. 11. Mr. Mann further contended that the appellant has produced cogent evidence by producing three witnesses in defences regarding the intake of money at the time of construction of house and as such the finding of the trial court that the explanation rendered by the appellant is incorrect, in fact, is unsustainable and the appellant deserves acquittal. 12. Refuting the arguments advanced by the learned counsel for the appellant, the learned Assistant Advocate General, Punjab contends that the case of the prosecution against the present appellant is proved to the hilt and he has no escape. He then submitted that the learned trial court has taken into account all the aspects including the defence led by the appellant and then recorded a categoric finding that the appellant is in possession of assets disproportionate to his known sources and consequently the conviction of the appellant is liable to be maintained. 13. He then submitted that the learned trial court has taken into account all the aspects including the defence led by the appellant and then recorded a categoric finding that the appellant is in possession of assets disproportionate to his known sources and consequently the conviction of the appellant is liable to be maintained. 13. Before I enter into detailed discussion on merits, it would be most appropriate to reproduce the charge framed against the appellant which reads as under :- "That between 1.1.1981 to 31.10.1984 abusing your position as Sectional Officer P.W.D. (B&R) Punjab, by illegal and corrupt means acquired property in your name and during the aforesaid period your standard of living was disproportionate to your known sources of income and you could not satisfactorily account for the acquisition of the property and the standard of living i.e. though during the aforesaid period your total income (including the income of your wife Sukhwant Kaur) was Rs. 93,688.90 but your expenditure during the said period was 1,80,699.20 and thus you incurred an excess expenditure of Rs. 87,010.30 of your known sources of income and thereby committed an offence of criminal misconduct punishable under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947. 14. Admittedly, the appellant stands convicted on two counts. Firstly, there is difference of Rs. 42,218.45 between his income and the expenditure. The calculation done is that the income is Rs. 1,57,621.70 and the expenditure is Rs. 1,99,840.15. Secondly he was possessing a property worth Rs. 24,000/- purchased by him from one Smt. Kulwant Kaur on 16.1.1981 vide sale deed Ex. PC. 15. So far as the property purchased by the appellant for Rs. 24,000/- is concerned, the same cannot be taken into account because during the investigation no evidence was collected by the Investigating Officer in this regard. The investigation was handed over to one Inspector Harbans Singh of Vigilance Bureau. He unfortunately died before he could step into witness box. He was one of the main prosecution witnesses. Joginder Lal D.S.P. Vigilance Bureau was produced by the prosecution as PW17. His evidence is otherwise of formal character. He has, however, proved the report Ex. PM prepared by the Investigating Officer in this case. The said report relates to certain items showing the income of the appellant and were admitted to be correct. Joginder Lal D.S.P. Vigilance Bureau was produced by the prosecution as PW17. His evidence is otherwise of formal character. He has, however, proved the report Ex. PM prepared by the Investigating Officer in this case. The said report relates to certain items showing the income of the appellant and were admitted to be correct. In his entire evidence, there is no reference to the investigation done in respect of the sale deed Ex. PC. Admittedly, the check period is from 1.1.1981 to 31.10.1984 i.e. 46 months. Ex. PC relates to 16.1.1981. A specific question was put to the appellant when he was examined under section 313 Criminal Procedure Code regarding this deal. The appellant admitted the transaction and the categorical reply was that the said plot was purchased by him out of the savings prior to check period. As stated above the check period starts from 1.1.1981 and the above said transaction vide Ex. PC is just within 15 days. In this eventuality it was the bounden duty of the prosecution to collect the evidence prior to 1.1.1981 in respect of the sale deed. Certainly, it has not been done. Since Harbans Singh had not stepped into witness box, there was no opportunity with the appellant to confront him about this part of the investigation. Joginder Lal DSP PW17 was not to be cross-examined on this aspect because he was not the Investigating Officer. I, therefore, feel that the finding of the trial court qua purchase of the plot by the appellant on 16.1.1981 vide sale deed Ex. PC is beyond the scope of basic allegation. 16. Now the main controversy is with regard to non-explanation of Rs. 42,218.45. This, according to the learned trial court is the difference between the income and the expenditure. The reply of the appellant in his statement under section 313 Criminal Procedure Code is as under :- "I was married in December, 1978 and our first child was born in December, 1984. I and my wife are both earning hands and since our family consisted of myself and my wife, we had saved considerably from our salary. Some incomes such as sale of jewellery and loans from relatives had not been taken into consideration by the Investigating Officer. I am innocent." 17. The defence set up by the appellant is that sum of Rs. Some incomes such as sale of jewellery and loans from relatives had not been taken into consideration by the Investigating Officer. I am innocent." 17. The defence set up by the appellant is that sum of Rs. 7000/- was taken by him as loan from one Fauja Singh. The said Fauja Singh had withdrawn Rs. 7000/- from Punjab National Bank, Gurdaspur from his saving account No. 25472 and on the same day, a draft was prepared in his favour. He had taken the said loan at the time of construction of the house. In my view the learned trial court should have taken this into account. The reasoning given is that the draft amounting to Rs. 7000/- has already been adjusted into account with Rs. 9100/- by the prosecution as incoming income of the appellant because it is not shown that the abovesaid Rs. 7000/- was over and above Rs. 9100/- (para No. 9 of the judgment of the learned trial court refers). I am afraid this approach is not correct for a very simple reason that the amount of Rs. 9100/- is with respect to another draft of Punjab National Bank, Gurdaspur. This is a single transaction in itself and the draft of Rs. 7000/- is a separate transaction. 18. The second transaction is of Rs. 19200/-, an amount taken by the appellant from one Charanjit Singh in the shape of pronote. This pronote relates to 15.4.1983. According to Charanjit Singh the pronote Ex. DA was executed by him. He has even stated that a sum of Rs. 5000/- and Rs. 4000/- were returned by the appellant on 10.4.85 and 9.2.88 vide Exhs. DA/1 and DA/2 duly signed by him. The learned trial court has rejected this pronote in its judgment saying that it is a crude forging and a naked falsehood. In my view even this approach is unwarranted. Forgery is not to be presumed, it has to be proved. The observation of the court is that the said pronote was scribed by one Rattan Chand Deed Writer who died on 17.10.1989 and the regular register maintained by him was destroyed in the floods in the year 1988. According to the learned trial court it was a clever device. Without commenting much on this observation, I may say here that this is not disputed that there was disastrous flood in the year 1988. According to the learned trial court it was a clever device. Without commenting much on this observation, I may say here that this is not disputed that there was disastrous flood in the year 1988. The explanation on the face of it cannot be just thrown away by saying that it is clever device. At this juncture, I would also not refrain myself from saying that the appellant has not obtained any sanction from the competent authority of the department for taking loan from the private individual as is the requirement under the rules but at the same time the explanation given by the appellant with the cogent evidence in this regard would not be seen with a pinch of salt. We may treat it as an irregularity but it cannot be said to be an act of corruption. As is clear from the case of the appellant that he and his wife were earning hands and there was no liability on them, the appellant might have thought that the above said amount of Rs. 19,200/- would be repaid by him out of his considerable savings in a short span of time. There is documentary evidence in the shape of Ex. DA/1 that a sum of Rs. 4000/- was also repaid in April, 1985 itself. Even if no withdrawal of the said amount is shown in the saving account of the appellant or his wife Sukhwant Kaur but again this would not be a ground to disbelieve the explanation. It is not expected of a government official that he must show every saving of every month in his account being maintained in the bank. He can keep some amount with him out of his savings. 19. The explanation given by the appellant regarding the inflow of the income from the sale of jewellery on different occasions is also worth acceptance. The evidence led by the appellant is that his wife Sukhwant Kaur had sold some gold ornaments at different stage to one Prem Lal, Jeweller of Gurdaspur. Prem Lal has stepped into witness box as DW4. He has categorically stated that the vouchers in respect of each transaction were duly prepared and signed by him. I have gone through his statement. Prem Lal has stepped into witness box as DW4. He has categorically stated that the vouchers in respect of each transaction were duly prepared and signed by him. I have gone through his statement. No doubt some flaw has been left by the defence side in not getting those vouchers proved and exhibited but the cross-examination on behalf of the prosecution makes it clear that the vouchers were shown before the trial court and that a specific question was also put regarding the vouchers to the effect that fathers name of Dalip Singh is not written on those vouchers. From this it can be comfortably said that vouchers were duly prepared the Jeweller in the month of June and July 1983 when the house of the appellant was under construction. There is nothing unusual in it that sometimes at the time of construction one feels like selling of some valuable articles to arrange more money for the purpose of construction keeping in view that the same can be re-purchased at a later stage out of the savings. Gold ornaments is one out of that. For a common man, house is made once in a life. It is like performing the marriage of ones child. If at the time of marriage one can think of disposing of some property moveable or immovable so that the marriage is performed with full pump and show it cannot be said that same cannot be done at the time of construction of the house. 20. For the sake of repetition, I may say once again that Inspector Harbans Singh was the best witness who is to be cross-examined by the appellant in this regard being the investigating officer because he had been collecting all the evidence. The appellant has not been afforded an opportunity to cross- examine him, may be on account of his death but the fact remains that some basic infirmities remain in the prosecution case because of his non- examination. Admittedly, the present case is hinging upon documentary evidence and the specific defence of the appellant is that some income from the relatives and the sale of jewellery was not taken into account by the investigating officer. In my view, this lacuna goes to the core of the prosecution case and dents it. 21. I may also like to touch report Ex. In my view, this lacuna goes to the core of the prosecution case and dents it. 21. I may also like to touch report Ex. PH prepared by PW15 Devinder Singh Bath, SDO, Vigilance Bureau, Punjab regarding the construction of the house which started in April, 1985. He has taken into account ten main items into consideration for the purpose of showing the estimate of the amount that might have been spent by the appellant at the time of construction. He has given the possibility of variation between 5 to 20% depending upon the time of construction and the material collected. The trial court has also applied the outer limit of 20% variation but in my view there cannot be any hard and fast rule or a specific yardstick for arriving at the conclusion regarding the estimated cost especially when the difference is not very high. In the present case the situation is like that. Similarly may be the savings are deducted according to the rules to the extent of 1/3rd but at the same time, again, there cannot be any hard and fast rule in this regard as well. It depends upon the constitution of the family. In the present case, it was a very limited family of two earning persons upto December, 1986 when the appellant was blessed with a child. This fact is also not denied by PW17 Joginder Lal DSP. In these eventualities the savings could be on some higher side also. 22. To sum up, it can be comfortably said that the prosecution has not been able to prove its case beyond reasonable shadow of doubt to show that assets of the appellant were disproportionate to his known sources of income. I extend the benefit of doubt to the appellant and acquitted him of the charge framed against him. Resultantly, the present appeal stands allowed. Let intimation of this judgment be sent to all concerned quarters. Appeal allowed.