GOPALA KRISHNA TAMADA, J. ( 1 ) THE appellant herein was tried by the special Judge for C. B. I. Cases, visakhapatnam, in C. C. No. 5. /1996 on the charge that he was possessing disproportionate assets worth Rs. 8,24,738. 90 than his known sources of income and the learned Special Judge for C. B. I. Cases (for short the Special Judge ) found the appellant guilty of the said charge and convicted the appellant for the offence punishable under section 13 (2) of the Prevention of Corruption act and sentenced him to undergo Rigorous imprisonment for three years and to pay a fine-of Rs. 4,00,000. 00 in default to suffer simple Imprisonment for one year. ( 2 ) THE gravamen of the charge is that the appellant worked as Assistant Station Master in the South Eastern Railway, Vizianagaram from 16-12-196 1/02/1984 and as commercial Inspector from February 1984 to July 1986 and as Senior Commercial inspector from July 198 6/12/1993 and was later promoted as Chief Commercial inspector and was working as such from december 1993. He has wife, three sons and a daughter. The daughter was married in the year 1978. While the eldest son is working in the South Eastern Railways as Senior Ticket collector, the second son is working as lecture in GITAM Engineering College, viskhapatnam and the third son of the appellant is working as Assistant Engineer, visakhapatnam Steel Plant at the relevant point of time. Neither the appellant nor his wife inherited any immovable property. ( 3 ) ON 9-8-1994, the Inspector of Police c. B. I. , Visakhapatnam conducted simultaneous raids on the houses of the accused and his third son, i. e. K. Srinivas (D. W. 3 ). The check pertains to the period from 1-1-1986 to 9-8-1994. In the raids, the c. B. I, personnel found that the accused and his family members had a total income of rs. 6,73,203. 69 including loans and advances obtained during the said check period and that they had spent an amount of rs. 3,31,068. 75 but the accused and his family members acquired movable and immovable assets worth Rs. 1 1,66,87,84 during the check period. Thus, it is alleged that the accused was in possession of assets and pecuniary resources in his name and in the name of his wife worth Rs. 8,24,738. 90 disproportionate to his known source of income as on 9-8-1994. 75 but the accused and his family members acquired movable and immovable assets worth Rs. 1 1,66,87,84 during the check period. Thus, it is alleged that the accused was in possession of assets and pecuniary resources in his name and in the name of his wife worth Rs. 8,24,738. 90 disproportionate to his known source of income as on 9-8-1994. According to the prosecution, the appellant could not account for the said disproportionate income satisfactorily. Therefore, the C. B. I. personnel having come to the conclusion that the appellant acquired the said properties and pecuniary resources by dubious means or through corrupt practices, laid charge sheet against him for the offence punishable under Section 13 (l) (e) read with Section 13 (2) of the Prevention of corruption Act, after obtaining necessary sanction form the competent authority, i. e. , senior Divisional Commercial Manager, south Eastern Railway, Waltair. ( 4 ) ACCORDING to the prosecution, the income of the appellant during the check period was Rs. 6,73,203. 69, the expenditure is rs. 3,31,068. 75 whereas the assets possessed by him and his wife are worth rs. l 1,66,863-84. For the purpose of convenience the details of income, expenditure and assets are reproduced as hereunder: income sl. No. Item of Income amount (Rs.) 1. Net Salary 1,49,148. 20 2. GPF withdrawal 21,600. 00 3. S. E. Railway Co-op Loan 25,000. 00 4. Loan from G. V. Ramana 20,000. 00 5. Assistance from son 8,000. 00 sl. No item of Income amount (Rs.) 6. Rental income on house (Plot No. 10, Sidhaftha colony, Vizianagaram) 88,318. 00 7. Hand Loans availed by his wife 1,25,400. 00 8. Income received by his wife from business and other sources 1,22,552. 00 9. Loan from M/s Pusapati Finance (by his wife) 1,10,000. 00 10. Brokerage from NFCL 270. 00 11. Interest from NFCL on debentures 97. 00 12. Dividends on NFCL equity shares 348. 49 13. M/s. Swamy Chits Lucky draw 2,000. 00 total 6,72,733. 69 expenditure s. No. Item of Expenditure amount (Rs.) 1. Contribution to ULIP 24,000. 00 2. Donation to Devasthanam 1,116. 00 3. Road tax paid for AP 35 2445 900. 00 4. Estimated domestic expenditure 1,19,219. 75 5. Loan repayment to P. Venkataraju 10,800. 00 6. Premium paid to LIC 2,268. 00 7. Repayment to Car loans (M/s. Pusapati Finance) 6,240. 00 8. Payments to Telecom Department 10,211. 00 9. Contribution to ULIP 24,000. 00 2. Donation to Devasthanam 1,116. 00 3. Road tax paid for AP 35 2445 900. 00 4. Estimated domestic expenditure 1,19,219. 75 5. Loan repayment to P. Venkataraju 10,800. 00 6. Premium paid to LIC 2,268. 00 7. Repayment to Car loans (M/s. Pusapati Finance) 6,240. 00 8. Payments to Telecom Department 10,211. 00 9. Payments to Swamy Chits and Finance 43,500. 00 10. Amounts paid to Sriram Transport and Finance Co. 41,344. 00 11. Paid House Tax 3,480. 00 12. Education Expenditure 20. 890. 00 13. Expenditure incurred on betrothals of his sons and niece marriage 21,600. 00 14. Expenditure incurred on sisters marriage and sons marriage 25,500. 00 total 3,31,068. 75 assets HELD BY THE ACCUSED AND HIS WIFE sl. No particulars-of Assets amount Rs. 1. Housing Plot bearing No. 10, Siddardha Nagar, Vizinagaram purchased on 16-5-1989 12,221. 00 2. Two-storied house on plot mentioned above 7,53,000. 00 3. House No. MIG-195 at Babametta, Vizianagaram 50,000. 00 4. Expenditure incurred for compound wall and well in the above house 10,000. 00 5. Electrification charges to the house at Sidharadhanagar. 7,040. 00 6. Shares of NFCL, Hyderabad (400 Nos) 6,905. 00 7. 60 Rights shares of Gold Star Steel and Alloys Ltd. , each Rs. 10. 00 600. 00 8. 100 equity shares of Gold Star Steel and Alloys Ltd. , each Rs. 5. 00 500. 00 9. Deposits in Pennar Patterson, Hyderabad 2,000. 00 10. Balance in SB A/c No. 9949 of DCCB, Vizinagaram 181. 44 11 balance in SB A/c No. 3295 of Vysya Bank, Vizianagaram 511. 00 12. Balance in SB A/c No. 31/5670 of SB1, Bazar Branch 233. 40 13. Inventory of Movable assets including Cars 3,23,652. 00 total 11,66,843. 84 @@ ( 5 ) TO substantiate its case, the prosecution examined as many as 42 witnesses ag P. Ws. l to 42 and got marked Exs. P-1 to P-66. On behalf of the appellant, his wife, i. e. Satyeswari, was examined as D. W. 1 and his three sons, namely K. Satyanarayana Sarma, k. Srinivas and K. Rama Sarma, were examined as D. Ws. 2 to 4 respectively. The appellant also examined two other witnesses as D. Ws. 5 and 6 and got marked Exs. D-1 to d-11. Exs. X-1 to X-7 were also marked. 2 to 4 respectively. The appellant also examined two other witnesses as D. Ws. 5 and 6 and got marked Exs. D-1 to d-11. Exs. X-1 to X-7 were also marked. After considering the oral and documentary evidence, the Special Judge held that the appellant acquired assets disproportionate to his known source of income, to a tune of rs. 6,54,738. 90, and accordingly convicted and sentenced him as stated supra. Hence, this appeal. ( 6 ) OUT of the 13 items of Income shown by the prosecution, appellant d isputed only I tern nos. l, 4,5 and 8. Similarly out of 14 items of expenditure, the dispute raised by the appellant is only with regard to Item Nos. 3, 4, 8, 13 and 14 and so far as the assets are concerned the appellant disputed Item nos. 2, 4 and 13 only. ( 7 ) I would now propose to deal with the contention raised by the learned senior counsel in respect of each item. ( 8 ) AT the outset, the learned senior counsel tried to con tend that the wife of the appellant was doing business during the check period and that she purchased two cars which were run as taxies and thus she was getting independent income during the check period and that she purchased two cars which were run as taxies and thus she was getting independent income during the check period. As a matter of fact, out of the total income shown by the prosecution, the income of the wife shown in the items of income is more than the income of the appellant, that only the income shown at item Nos. 1 to 3 and 5 belong to the accused and that rest of the items of income i. e. , item Nos. 4,6 to 13 belong to the wife of the accused. Even according to the respondents herein, she is an income tax assessee and the income of the wife is more than the income of the appellant. According to him, the properties were never kept by the appellant in the name of his wife as benamidar to attract the provisions of section 13 (i) of the Prevention of Corruption act. Thus, the allegation raised by the prosecution that the accused purchased the assets benami in the name of his wife, is baseless. According to him, the properties were never kept by the appellant in the name of his wife as benamidar to attract the provisions of section 13 (i) of the Prevention of Corruption act. Thus, the allegation raised by the prosecution that the accused purchased the assets benami in the name of his wife, is baseless. He, therefore, contended that those items of income which were earned by the wife of the accused and the assets which are in the name of the wife of the accused have to be excluded from the income and assets of the accused. In support of his contention, learned counsel cited the Judgments of the supreme Court reported in K. Goverdhan v. State of AP. and M. Krishna Reddy v. Dy. Supdt. of Police. ( 9 ) BUT, I am not inclined to accept the said contention. The Supreme Court in a decision reported in State of Maharashtra v. Pollonji darabshaw Daruwalla, held that once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving that the public servant is or was at any time during the period of his office, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for possession of such properties and pecuniary resources. In view of the above decision, when once the prosecution has discharged its initial burden that the income shown,at sl. Nos. 1 to 13 and that the assets at Sl. Nos. 1 to 13 being to the accused, then the burden of disproving the said factum shifts, on to the accused and then i t is for the accused to show that the assets which are in the name of his wife were purchased by his wife alone with the income earned by her. But, in this case, except examining the sons of the accused for the purpose of establishing the factum of their contributions to the family, the accused did not take any steps to prove that major portion of the income was in fact earned by his wife and that she pu rchased the properties with such income, by producing the relevant documentary evidence. Having failed to take any steps in that direction, it is not open for the accused now to put forth a bare contention. Therefore, 1 am not inclined to attach much importance to the contention advanced on behalf of the appellant in this respect. The judgments cited by the learned counsel for the appellant are beyond the point and hence they are not applicable to the facts of this case. ( 10 ) I shall now proceed to deal with the other contentions raised by the learned counsel under each disputed item. I. Income: item No. 1 (Net Salary): The prosecution showed the net salary of the accused as rs. 1,49,148. 20. The said figure was arrived at on the basts of Exs. P-1 and P-3, letters along with month-wise pay particulars of the accused. Learned counsel rightly brought to the notice of this court that there was a mistake in calculating the total salary of the accused and that the correct net salary of the accused as per Exs. P-1 and P-3 is rs. 2,14,070. 47 and not Rs. 1,49,148. 20. Thus, an amount of Rs. 64,922. 27 needs to be included in the income. Apart from the above, learned counsel also brought to the notice of this court that the above item represents only the salary of the accused and the court below failed to include the D. A. and T. A. arrears, bonus etc. , which was also received by the accused during the check period. According to the learned counsel, P. Ws. 1 and 2 have categorically admitted in their evidence that the accused would have received D. A. and t. A. arrears and also bonus. Learned counsel contended that the accused received a sum of Rs. 30,000/- under this head but there is no evidence as to the actual amount received by the accused. In the absence of any documentary proof on this aspect, this court, having regard to the post held by the accused and the length of his service, is of the opinion that the accused would have received at least a sum of Rs. 20,000. 00 towards D. A. and T. A. arrears and also Bonus during the check period. If the above amount of Rs. 20,000. 00 is included to the net salary of the accused, then the income of the accused under item 1 would come to Rs. 2,34,070. 20,000. 00 towards D. A. and T. A. arrears and also Bonus during the check period. If the above amount of Rs. 20,000. 00 is included to the net salary of the accused, then the income of the accused under item 1 would come to Rs. 2,34,070. 00 (Rs. 1,49,148. 20 + Rs. 64,922. 27 + Rs. 20,000/- ). ( 11 ) ITEM No. 4 (Loan from G. V. Ramana): under this item, a sum of Rs. 20,000. 00 was mentioned in the charge sheet. But, learned senior counsel contended that as per the evidence of P. Ws. 32 and 34, the wife of the accused actually obtained loan amount of rs. 85,000/- from G. V. Ramana, who lent the said amount by way of cheques drawn on bobbili Co-operative Urban Bank. Exs. P-43 and P-46 would clearly establish the said factum. As seen from the evidence of P. Ws. 32 and 34, coupled with the documentary evidence i. e. , Exs. P-43 and P-46, there cannot be any iota of doubt that the wife of the accused had actually lent a sum of rs. 85,000/- and not Rs. 20,000. 00 as alleged by the prosecution. Thus, a sum of rs. 65,000 /- needs to be included in this item. ( 12 ) ITEM No. 5 (Assistance from son): under this head, a sum of Rs. 8,000. 00 is shown by the prosecution. Learned senior counsel, however, contended that during the check period all the three sons of the accused were gainfully employed and they used to give major portions of their monthly salaries to the accused after retaining some amounts for their personal expenses. According to the learned counsel, the accused received a total sum of Rs. 4,92,900. 00 from his three sons during the check period and that the said amounthas to be included in the total income of the accused. All the three sons of the appellant gotem ployment prior to the period of check and they used to send monies to him regularly every month. It is his further case that they sent monies to him even after their marriage. In order to prove this factum, the accused examined his three sons as D. Ws. 2, 3 and 4. As seen from the judgment of the court below, this point was not dealt with in depth by the trial court. It is his further case that they sent monies to him even after their marriage. In order to prove this factum, the accused examined his three sons as D. Ws. 2, 3 and 4. As seen from the judgment of the court below, this point was not dealt with in depth by the trial court. ( 13 ) THE question that falls for consideration is whether the income of the sons of the accused can be included in the incomeof the accused. In this country, unlike in some western countries, contribution by sons after their becoming earning members of the family, to, the common pool is not an uncommon phenomenon. The concept of family and the family bonding in this country has got its own distinction and uniqueness. Where as in western civilization children after attaining majority do not like to depend upon their parents for their maintenance but prefer to leave the parental home and start leading their own independent life, by taking up some avocation which would earn them their bread and butter; not only that, they do not depend upon their parents even for prosecuting their studies. Per contra, in Indian society, the situation is entirely different. Here, parents do not allow their children to leave the parental home until and unless their children complete their education and start their own earning. Parents in this country feel that their obligation towards their children comes to an end only when their obligation towards their children comes to an end only when their children become earning members and when they perform the marriages of their children. The other important facet of this family relationship in India is the role played by the children after becoming earning members. After becoming earning members, children would readily come forward to share the burdens of the family along with their parents by contributing major chunk of their earnings to the well-being of the family and would not under any circumstances leave their parents to their own destiny. There are umpteen number of families where children even after marriage lend their helping hand to the parents, irrespective of the financial status of the parents, by contributing some amount, though not a major portion of their earnings, to their parents. Therefore, in India it is not an uncommon phenomenon for the children to contribute their earnings to the common pool. Therefore, in India it is not an uncommon phenomenon for the children to contribute their earnings to the common pool. ( 14 ) HAVING gone through the evidence on record, especially the evidence adduced on behalf of the defence, 1 am of the view that the case of hand is not an exception to the aforementioned practice which is prevalent in the Indian society. As a matter of fact, it is the case of the prosecution that all the three sons of the accused are gainfully employed. It has come to light in the evidence adduced on behalf of the accused that the first son who is working in Railways is staying with the accused and that he used to contribute to the family Engineering College, visakhapatnam, during the check period used to give his salary to the family after deducting some amount toward shis personal expenses. He was married in February 1992. Similarly, the third son is working in visakhapatnam Steel Plant. He was married in the year 1994. Prior to his marriage, he used to stay along with his parents and every day he used to go to Visakhapatnam by train. After deducting some amount towards his personal expenses, he used to hand over his salary to the family. The evidence of D. Ws. 2 to 3 who are the sons of the accused, would throw further light on the point. ( 15 ) IN view of my foregoing discussion, I have no hesitation to hold that the accused might have received sizeable portion (say upto 75%) of the monthly income of their sons till they are married and thereafter, a minimum of 10% out of their total income but not at the rates which are spoken to by the sons of the accused in their evidence. Even though no documents are filed by the sons to prove the actual quantum of their monthly income, except D. W. 4 who filed exs. D-4 to D-6 (pay slips), the oral evidence of the three sons of the accused in respect of the quantum of monthly income earned by them during the check period, appears to be quite reasonable and isnotatall onhighside. D-4 to D-6 (pay slips), the oral evidence of the three sons of the accused in respect of the quantum of monthly income earned by them during the check period, appears to be quite reasonable and isnotatall onhighside. Therefore, having regard to the case set up by the prosecution that all the three sons of the accused were gainfully employed during the period of check, I would proceed to assess their contribution to the family basing on the monthly income as spoken to by them in their evidence. ( 16 ) CONTRIBUTION of third son (D. W. 3) to the family during the check period: D. W. 3, the third son of the accused, joined the b. H. P. V. , Visakhapatnam as a Trainee and worked from February 1986 to February 1987 earning Rs. 250. 00 per month as stipend. Thereafter, he joined in Vizag Steel Pant in november 1988 as a Senior Trainee and continued there and that he is now working as Deputy Manager. It is his evidence that since he started earning, he used to give monies to his mother regularly from out of thestipend/salary amounts. His contribution to the family during the check period is assessed as under: @@ period contribution as assessed by court at 75% of the total earnings) (Rs.) june 1990 to November 1991 (18 months) Salary @ Rs. 2500. 00 p. m. 33,750/- (Rs. 1875 x18) dec. 199 1/11/1992 (12 months) Salary @ Rs. 3,500. 00- p. m. 31,500/- (Rs. 2625 x 12) dec. 199 2/03/1994 (16 months) Salary @ Rs. 4250. 00 p. m. (on an average basis) 51,000/- (Rs. 3187. 50 x 16) april 199 4/07/1994 (4 months) Salary @ Rs. 4,250. 00 p. m. (after marriage) 1,700/- (Rs. 425 x 4) (Contribution is assed at 10% for this period) total 1,17,950/-@@ ( 17 ) CONTRIBUTION of the second son (D. W. 4) to the family: D. W. 4, the second son of the accused, while studying M. Tech. at m. S. University, Baroda, received government Stipend of Rs. 1,800. 00 per month from July 198 9/02/1991 and that he used to incur a sum of Rs. 500. 00 every month towards expenses and he used to send the balance amount to his mother every month. Thereafter, he worked for four months in bhargav Engineering Consultant at vizianagaram, on a monthly salary of rs. 1,800. 00 per month from July 198 9/02/1991 and that he used to incur a sum of Rs. 500. 00 every month towards expenses and he used to send the balance amount to his mother every month. Thereafter, he worked for four months in bhargav Engineering Consultant at vizianagaram, on a monthly salary of rs. 2,000/- for four months from March to june 1991. There after, he worked as Lecturer in KTTS at Ramtek from 9-7-1991 to 11-12- 1992 on a gross salary of Rs. 4,000. 00 to rs. 4,600/- per months. Since 14-12-1992, he has been working as Lecturer in GITAMS engineering College, Visakhapatnam, on a net salary of Rs. 4,500. 00 to Rs. 4,600. 00 per month. After retaining some money for his personal expenses, he gave the balance of his salary to his mother and that his contribution is as under: @@ period July 198 9/02/1991 (20 months) Stipend @rs. l800/-p. m. Contribution as assessed by court @ 75% of the total earnings) (Rs.) 26,000/-* (Rs. 1300 x 20) march to June 1991 (4 months) Salary @ Rs. 2000. 00 p. m. (already shown in item 5) - from 9-7-199 1/01/1992 (7 months) Salary @ Rs. 4,300. 00 p. m. (on an average basis) 22,575/- (Rs. 3225 x 7) from February 199 2/07/1994 (30 months) Salary @ Rs. 4,500. 00- p. m. (after marriage) Total 13,500/- (Rs. 450 x 30) (Contribution is assed at 10% for this period) 62,075/- * Since D. VV. 4 was a student during the relevant period Rs. 500. 00 towards his expenses. he cannol be said to have incurred more than @@ ( 18 ) CONTRIBUTION of the eldest son (D. W. 2) to the family: D. W. 2, the eldest son of the accused, has been staying throughout with the accused and was giving amounts from out of his salary which he earned in his service in Indian Railways from the year 1986 onwards to his mother. As D. W. 2 is stated to have stayed along with his parents during the check period, he could have given more amounts to his parents, when compared withhis two brothers. Therefore, his contribution to the family before his marriage and even after his marriage is taken uniformly as 80% from out of his total earnings. As D. W. 2 is stated to have stayed along with his parents during the check period, he could have given more amounts to his parents, when compared withhis two brothers. Therefore, his contribution to the family before his marriage and even after his marriage is taken uniformly as 80% from out of his total earnings. If the contribution of d. W. 2 is calculated at the above rates, his total contribution would be as under: @@ period contribution as assessed by court @ 80% of the total earnings) (Rs.) january to June 1986 (6 months) Salary @ Rs. 300. 00 p. m. 1,440/- (Rs. 240 x 6) december 1986 to December 1987 (13 months) Stipend @ 1000/- p. m. 10,400/- (Rs. 800 x 13) jan 198 8/07/1990 (31 months) Salary @ 2000/- p. m. 49,600/- (Rs. 1600 x 31) april 199 3/07/1994 (16 months) Salary @ Rs. 3100. 00 p. m. 39,680 /- (Rs. 2480 x 16) total 1,01,120/-@@ thus, it can be held that the accused could have received not less than Rs. 2,81,145. 00 (Rs. 1,17. 950/- + Rs. 62,0757- + Rs. 1,01,120/-) from his three sons during the check period and the said amount could have been included in the income of the accused. ( 19 ) ITEM No. 8 (Income received by Wife from business and other sources: the prosecution has shown a sum of rs. 1,22,522/- under this head and the court below accepted the same. But, learned counsel contended that there is no basis for the prosecution to arrive at the figure and that it was based on some guesswork. P. W. 42, in fact, admitted the above fact in his cross- examination. According to the learned counsel, the wife of the accused had actually received a sum of Rs. 2,01,174. 00 during the period of check. This is supported by the evidence of P. W. 3 and P. W. I and proved by exs. P-4 and P-5 (letters addressed by P. W. 3) coupled with Ex. D-3. P. W. 3, the then Income tax Officer, Vizianagaram, stated in his evidence that the wife of the accused filed returns during the Assessment Years 1992- 93,1993-94 and 1994-95 showing her income. P. W. I furnished information to the C. B. I, about the pay particulars of the accused for the period in question. Ex. D-3. P. W. 3, the then Income tax Officer, Vizianagaram, stated in his evidence that the wife of the accused filed returns during the Assessment Years 1992- 93,1993-94 and 1994-95 showing her income. P. W. I furnished information to the C. B. I, about the pay particulars of the accused for the period in question. Ex. D-3 is the Xerox copy of the consolidated statement given by the Income Tax Officer, Vizianagarm, which shows that the wife of the accused is an income tax assessee even in the year 1975-76. As per Exs. P-4 and P-5 letters addressed by the Income Tax Officer, the income tax returns filed by the wife of the accused during the check period would disclose income from business and other sources as Rs. 2,01,174. 00. All those returns were accepted by the Income tax Department without raising any objection as to the computation. Therefore, there cannot be any difficulty in holding that the wife of the accused earned income of rs. 2,01,174/- during the check period covered by assessment years 1992-93, 1993-94,1994-95 (vide Fx. D-8 ). Thus, a sum of Rs. 78,652. 00 is to be included to this item. II. Expenditure: ( 20 ) ITEM No. 3 (Road Tax paid for Motor cycle AP35-2446): An amount of Rs. 900. 00 is added to the expenditure of the accused towards Road Tax paid tor the Motor Cycle bearing Reg. No. AP 35-2446. According to the learned counsel for the appellant, the said motorcycle was not purchased by the accused in his personal capacity but it was purchased by him in his capacity as President of S. H. Railway Employees Co-operative society, Vizianagaram, and paid the Road tax in such capacity. The factum of registration of the motorcycle in the name of the President was also ad mitted by P. W. 35 in his cross-examination. Further, the investigating officer (P. W. 42) admitted in his cross examination that he was not aware whether the accused paid Rs. 900. 00 in his individual capacity or as President of the society. In the absence of cogent evidence on the aspect, it cannot be held that the road tax of Rs. 900. 00 was paid by the accused in his individual capacity and as such the said amount of Rs. 900. 00 has to be deleted from the total expenditure of the accused. In the absence of cogent evidence on the aspect, it cannot be held that the road tax of Rs. 900. 00 was paid by the accused in his individual capacity and as such the said amount of Rs. 900. 00 has to be deleted from the total expenditure of the accused. ( 21 ) ITEM No. 4 (Estimated Domestic expenditure): According to the prosecution, the estimated domestic expenditure is shown as Rs. 1,19,219. 75, which is accepted by the court below. But, the accused is disputing the said figure. According to the accused, the said expenditure works out at 80% of the income of the accused from his salary and that it is on high side. P. W. 40, the Technical officer, C. B. I. , clearly stated in his evidence that he has calculated the expenditure on the basis of the statistics which are applicable to the city of Visakhapatnam, whereas the accused is resident of Vizanagaram town. He further stated that for the purpose of calculating the domestic expenditure, the statistical data compared by the Bureau of economics and Statistics, Hyderabad, is relied upon. The cost of living of vizianagaram town and that of visakhapatnam city is incomparable. The cost of living at Vizianagaram is much cheaper than the cost of living at viskhapatnam. Therefore, the method of calculation adopted by P. W. 40 for arriving at the domestic expenditure of the accused appears to be defective and unscientific. Apart from the above, during the check period, the sons of the accused were mostly staying away from Vizianagaram pursuing their own individual avocations and, as rightly contended by the learned counsel for the appellant, P. W. 40 has not taken into account the size of the family of the accused during the check period. Further, the appellant being a vegetarian, the expenditure in the family of the accused may not be as highasin thenon-vegetarian family. Learned counsel for the appellant contended that the net income of the accused during the check period being only Rs. l,49,148. 20, P. W. 40 ought not to have assessed 80% of the said income towards domestic expenditure. Further, the appellant being a vegetarian, the expenditure in the family of the accused may not be as highasin thenon-vegetarian family. Learned counsel for the appellant contended that the net income of the accused during the check period being only Rs. l,49,148. 20, P. W. 40 ought not to have assessed 80% of the said income towards domestic expenditure. The court below, however, did not accept the said contention and came to the conclusion that the domestic expenditure as fixed by p. W. 40 compared to the income of the accused as well as the income of the wife of the accused from business (Rs. 1,22,522/-) and rental income of Rs. 88,318. 00 is not unreasonable nor excessive. But, the said finding of the court below, in my opinion, is not correct. Money is spent depending on the necessity and not depending on the income and therefore domestic expenditure should be taken on a realistic basis depending on the necessity of the family and not on the basis of the total income. Viewed from any angle, the expenditure assessed by P. W. 40 is on high side and is therefore liable to be reduced. Having due regard to the totality of the circumstances, I am of the opinion that the amount as suggested by the learned counsel for the appellant under this head i. e. , rs. 77,250/- appears to be quite reasonable. Therefore, I am inclined to accept the said figure. Consequently, a sum of Rs. 41,969. 75 has to be deducted from this item of expenditure. ( 22 ) ITEM No. 8 (Payment to Telecom department): A sum of Rs. 10,211. 00 is shown as payment made towards telephone charges. The prosecution contended that the accused had paid the amounts covered by the telephone bills, the details of which are mentioned in the statement enclosed to ex. F-21 letter. The court below accepted the said item of expenditure. But the learned counsel for the appellant tried to contend that the statement enclosed to Ex. P-21 letter shows only the bill amounts and not the actual amounts paid by the accused under the said bills and that the prosecution failed to establish the factum of payment under the said bills. In view of the categoric admission made by P. W. 42 in his evidence that there is no proof that a sum of Rs. 8,211. P-21 letter shows only the bill amounts and not the actual amounts paid by the accused under the said bills and that the prosecution failed to establish the factum of payment under the said bills. In view of the categoric admission made by P. W. 42 in his evidence that there is no proof that a sum of Rs. 8,211. 00- was paid towards telephone charges, it is contended that only a sum of Rs. 2,000. 00 (being the registration charges paid by the wife of the accused for obtaining telephone connection, vide Ex. P-20) should be taken as actual expenditure under this head. But, I am not inclined to accept this contention raised by the learned counsel. Once a Bill is issued, the same is bound to be paid by the consumer, otherwise, the consequences would follow. Therefore, the court can draw a presumption that the amount covered by the said bill has been paid, unless contrary is proved. In this case, except stoutly denying that he has not paid the amounts covered by the said bills, the accused did not choose to rebut the said presumption. Therefore, it must be held that the accused paid the amounts covered by those bills. Hence, the contention raised on behalf of the appellant on this point is rejected. ( 23 ) ITEM Nos. 13 and 14 (Expenditure on betrothals of sons and Marriage of niece): the case of the prosecution is that the accused had spent a sum of Rs. 21,600. 00 and rs. 25,500/- under the above heads. The court below had accepted the same. But, the learned counsel for the appellant contended that the prosecution has not collected any evidence to show that the accused actually spent the above amounts. According to the learned counsel, no doubt, the accused raised those amounts by obtaining loan from his G. P. F. account and from S. E. Railways Employees co-operative Society by mentioning therein the purpose of obtaining such loans viz. , for betrothals and for marriage purposes, but the accused had actually withdrawn those amounts for the purpose of helping his near relative which amounts were repaid to him later on. Therefore, merely on the basis of the mentioning made in the applications for loans, the court below came to a wrong conclusion that the accused had spent those amounts. , for betrothals and for marriage purposes, but the accused had actually withdrawn those amounts for the purpose of helping his near relative which amounts were repaid to him later on. Therefore, merely on the basis of the mentioning made in the applications for loans, the court below came to a wrong conclusion that the accused had spent those amounts. According to the learned counsel, there is no positive evidence on record to prove the alleged expenditure. But, I am not inclined to accept this conten tion too. Having regard to the law laid down by the Supreme court in State of Maharashtra v. Pollonji darabshaw Dnruwalla (supra), the initial burden which is cast on the prosecution having been successfully discharged, the burden then shifts on to the accused and it is for the accused to prove the factum of his alleged lending the money to his near relative, by examining the alleged near relative. Having failed to do so, the court below was justified in rejecting the plea taken up by the accused. For the very same reasoning, I am not inclined to accept the contention advanced on behalf of the appellant on this point. III. Assets: ( 24 ) ITEM No. 2 (Two-storied House in plot No. 10, Sidharthanagar,vizianagaram): the prosecution valued the said house at rs. 7,53,000/-, which was accepted by the court below. But, the accused disputed the said figure. The finding of the court below is purely based on the evidence of P. W. 36, the assistant Engineer, Central Public Works department, Bangalore (CPWD) and Ex. P-49 (valuation report) and Ex. P-50 (details of the valuation report ). P. W. 36 took measurements of the house in March 1995 i. e. , about 8 months after the date of check. P. W. 36 admitted in his evidence that the valuation is based on the CPWD plinth area rates which are applicable to Delhi of the year 1992 and the same rates were calculated for visakhapatnam, whereas the house in question is situated in Vizianagaram. The ground floor, according to the accused, was constructed in the year 1991. But, P. W. 36 stated that they have taken the rates of 1995 while assessing the value of the ground floor. Similarly, there is lot of difference in between vizianagaram and Visakhapatnam in the cost of material, labour etc. The ground floor, according to the accused, was constructed in the year 1991. But, P. W. 36 stated that they have taken the rates of 1995 while assessing the value of the ground floor. Similarly, there is lot of difference in between vizianagaram and Visakhapatnam in the cost of material, labour etc. Even though there existed a format for calculating the cost index rate for every place, including vizianagaram, P. W. 36 chose to take the cost index rateof Visakhapatnam. Thus, the above discussion would succinctly make it clear that the valuation of the building in question by P. W. 36 is defective. Even though rebuttal evidence in the form of D. W. 5 and Exs. D-7 and D-8 is very much available on record, the court below simply brushed it aside without assessing the truth or otherwise of the said evidence and proceeded to believe. ( 25 ) D. W. 5, the Consultant-cum-valuer of immovable properties, who valued the building in question for income tax purposes in the years 1993,1994 and 1996, categorica 1 ly stated in his evidence that the construction cost of the ground floor is Rs. 1,85,000. 00 and the construction cost of first and second floors is Rs. 3,84,624. 00. Thus, according to D. W. 5, the total construction cost of the building comes to Rs. 5,69,624. 00. ( 26 ) AS per Ex. P-5, the wife of the accused filed the income tax returns for the assessment years 1992-93,1993-94 and 1994-95on 10-5-1993, 10-6-1994 and 11-7-1999 respectively, in the income tax return for the assessment year 1994-95, which is part of Ex. P-4, the wife of the accused showed the value of the ground floor as Rs. 1,88,600. 00 and the cost of construction of first floor as Rs. 1,95,000. 00. According to the accused, the construction of first and second floors of the house con tinned even after the financial year ending 31 -3-1994 (assessment year 1994-95) and they were completed in December 1995 and january 1996 and by the time D. W. 3 estimated the value of the building for income tax purposes, the cost of construction of first and second floors is shown at Rs. 3,84,624. 00. ( 27 ) THE valuation done by D. W. 3 is based on detailed examination method which method is nearer to reality when compared to C. P. W. D. method. 3,84,624. 00. ( 27 ) THE valuation done by D. W. 3 is based on detailed examination method which method is nearer to reality when compared to C. P. W. D. method. The said evidence of d. W. 3 finds support from the income tax returns filed by the wife of the accused for the assessment years 1992-93, 1993-94 and 1994-95. Therefore, the valuation done by d. W. 3 being more realistic and is based on detailed examination method, I am inclined to accept the said valuation in preference to the valuation done by P. W. 36. Consequently, the value of this item of asset has to be taken as Rs. 5,69,624. 00 and not as Rs. 7,53,000. 00. ( 28 ) ITEM No. 4 (Expenditure incurred for construction of compound wall and well): according to the prosecution, the accused spent a sum of Rs. 10,000. 00 towards construction of compound xvall around the house in MIG196, Babametta, Vizianagaram and a well therein. The court below accepted the said amount. The contention of the learned counsel for the appellant is that except ex. P-63 (valuation certificate issued by Sri v. S. N. Prasad Rao, Chartered Engineer), there is no evidence to prove that the accused spent a sum of Rs. 10,000. 00 under the above head. Further, according to the learned counsel, even the said document (Ex. P-63) which is produced by the prosecution has nothing to do with the house in MIG 196 as it speaks of the house in MIG 162. Therefore, the court below grossly erred in accepting the case of the prosecution by solely placing reliance upon Ex. P-63. No doubt, it is true that in Ex. P-63, mention is made about MIG 162 but at the same time, it is categorically stated therein that the house in question is allotted to Sri S. S. Karri (i. e. , the accused ). It is not the case of the accused that he has been allotted two houses viz. , MIG 162 as well as mig 196 in Babametta, Vizianagaram. Therefore, it is quite obvious that the valuation done under Ex. P-63 pertains only to the house of the accused which is situated in MIG 196, Babametta, Vizianagaram. For this reason, the contention advanced by the accused is liable to be rejected. However, as seen form the record, Ex. , MIG 162 as well as mig 196 in Babametta, Vizianagaram. Therefore, it is quite obvious that the valuation done under Ex. P-63 pertains only to the house of the accused which is situated in MIG 196, Babametta, Vizianagaram. For this reason, the contention advanced by the accused is liable to be rejected. However, as seen form the record, Ex. P-63 was produced by the investigating officer (P. W. 42) and it was not marked through the person who issued it (V. S. N. Prasada Rao, Chartered engineer, Vizianagram ). Even though v. S. N. Prasad Rao is examined by the prosecution as P. W. 29, the prosecution did not choose to mark Ex. P-63 through him. P. W. 29 did not speak anything about ex. P-63. Therefore, Ex. P-63 remained unproved. There is no other evidence to prove the expenditure under the above head. Thus, in the absence of any evidence, it has to be held that this item of Asset remained unproved and consequently the said amount has to be deleted. ( 29 ) ITEM No. 13 (Inventory of Movable assets including Cars): The prosecution valued the movable assets at Rs. 3,23,652. 00, which was accepted by the court below. But, according to the appellant, it is only rs. 2,91,852/ -. The basis for arriving at the above figure is Ex. P-37 which is the inventory prepared at the residence of the accused. The check period spans over eight and half years whereas the accused had completed about 33 years of service by the date of check and, as rightly contended by the learned counsel for the appellant, it cannot be said that all those household movable articles were acquired only during the check period. Moreover, items like clothing were already included in the cost of living index for the purpose of calculation of Domestic expenditure and as such the value of clothes ought to have been deleted. No bills pertaining to the articles which are included in the inventory are produced by the prosecution. As seen from Ex. P-37, the value of the movables is determined only on the basis of the possible year of purchase as there were no bills. ( 30 ) IN the inventory it is clearly stated by the prosecution that Item Nos. 1,2 and 5 (page 1), Item No. 28 (page 2), Item Nos. As seen from Ex. P-37, the value of the movables is determined only on the basis of the possible year of purchase as there were no bills. ( 30 ) IN the inventory it is clearly stated by the prosecution that Item Nos. 1,2 and 5 (page 1), Item No. 28 (page 2), Item Nos. 38,39 and 48 (page 3), item No. 15 (page 4) were purchased prior to the check period and so all those items have to be excluded from the inventory. ( 31 ) ITEM No. 15 (page No. 1) is shown as clothes and as the same was already included in the cost of living index, the said item should also be excluded. ( 32 ) FURTHER, as it is shown in the inventory by the investigating officer himself that Item no. 25 (page 2), Item Nos. 2 and 3 (page 4) belong to the daughter of the accused, the said items shall not be included in the inventory. ( 33 ) SIMILARLY, as it is shown in the inventory by the investiga ting officer himself that item Nos. 30 to 33 (page 2), item Nos. 35 and 51 (Page 3) and Item Nos. 1,5,11,13,14, 16 to 18 (page 4) are gift articles, they cannot be said that they have been purchased by the accused and so all those items should also be excluded from the inventory. There is also categoric evidence of D. W. I in that regard, who deposed that at the time of her marriage she was given gold jewellery of about 12 totals and silver articles weighing about 400 tolas and that subsequently about 100 to 200 tolas of silver articles ere purchased on several occasions and functions. The said evidence of D. W. I remained unchallenged. Therefore, the above gift articles need to be excluded from the inventory. ( 34 ) AS against item Nos. 46 and 54 (page 3), year of purchase is not mentioned, but the said items were included in the inventory. In the absence of any proof, it cannot be said that the said items were purchased during the period of check and hence, item Nos. 46 and 54 also should be excluded. ( 34 ) AS against item Nos. 46 and 54 (page 3), year of purchase is not mentioned, but the said items were included in the inventory. In the absence of any proof, it cannot be said that the said items were purchased during the period of check and hence, item Nos. 46 and 54 also should be excluded. ( 35 ) AS it is shown in the inventory by the investigating officer himself that Item No. 6 and 7 (page 4) belong to the son in law of the accused, the same should be excluded from the inventory. ( 36 ) IN the inventory, the value of the two ambassador Cars was not mentioned. Merely the distances which the two cars travelled were shown. The distances travelled by the Cars, as shown in the inventory, are: 92,064 and 96,497 K. M. respectively. Without specifically mentioning the actual value of the two cars in the inventory, the prosecution assessed the total value of the movables as rs. 3,23,652/ -. The learned counsel for the appellant in this connection submits that the wife of the accused categorically stated in her evidence that she purchased the cars after obtaining loans. The said evidence was corroborated by P. W. 25, who deposed that d. W. I took loan of Rs. 80,000. 00 for purchase of car and that the two vehicles do not cost more than Rs. 1,86,000. 00. Having regard to the distance travelled by the two cars, I am of the opinion that the value of the two cars would not have been much higher than the value (Rs. 1,86,000/-) as suggested by the learned counsel. Hence, I am inclined to accept the said value in respect of the two cars. ( 37 ) THUS, the value of the movable items mentioned in the inventory, after making the necessary deletions as stated above, would be as under: @@ (1) sl. Nos. 3,7,8,9,10,11,12,13, and 14. (Page No. l) 7,0757- (2) sl. Nos. 16 to 24, 26, 27 and 29 (Page No. 2) 21,300/- (3) sl. Nos. 36, 37, 40 to 45, 47, 49, 50, 52 and 53 (Page No. 3) 55,6007- (4) sl. Nos. 4,9,10,12 and 19 (Page No. 4) 19,0007- (5) value of 2 Ambassador Cars purchased by Mrs. K. S. Satyeswari ADN 7788 and ADN 8899. Nos. 16 to 24, 26, 27 and 29 (Page No. 2) 21,300/- (3) sl. Nos. 36, 37, 40 to 45, 47, 49, 50, 52 and 53 (Page No. 3) 55,6007- (4) sl. Nos. 4,9,10,12 and 19 (Page No. 4) 19,0007- (5) value of 2 Ambassador Cars purchased by Mrs. K. S. Satyeswari ADN 7788 and ADN 8899. 1,86,0007- (6) cash 2,8777- total 2,91,8527- @@ ( 38 ) THUS, the value of the movable articles shall be taken as Rs. 2,91,852. 00 instead of rs. 3,23,652/ -. ( 39 ) ON the above conspectus, the income, expenditure and assets of the appellant- accused are arrived at as shown in the tables given hereunder: @@ si. NO. INCOME item of Income amount (Rs.) i. Net Salary 2,34,070. 00 2. GPF withdrawal 21,600. 00 3. S. E. Railway Co-op Loan 25,000. 00 4. Loan from G. V. Ramana 85,000. 00 5. Assistance from son 2,81,145. 00 6. Rental income on house (Plot No. 10, Sidhartha colony, Vizianagram) 88,318. 00 7. Hand Loans availed by his wife 1,25,400. 00 8. Income received by his wife from business and other sources 2,01,174. 00 9. Loan from M/s Pusapati Finance (by his wife) 1,10,000. 00 10. Brokerage from NFCL 270. 00 11. Interest from NFCL on debentures 97. 00 12. Dividends on NFCL equity shares 348. 49 13. M/s. Swamy Chits Lucky draw 2,000. 00 total 11,74,422. 49 sl. No. EXPENDITURE item of Income amount (Rs.) 1. Contribution to ULIP 24,000. 00 2. Donation to Devasthanam 1,116. 00 3. Road tax paid for AP 35 2445 - 4. Estimated domestic expenditure 77,250. 00 5. Loan repayment to P. Venkataraju 10,800. 00 6. Premium paid to LIC 2,268. 00 7. Repayment to Car loans (M/s. Pusapati Finance) 6,240. 00 8. Payments to Telecom Department 10,211. 00 9. Payments to Swamy Chits and Finance 43,500. 00 10. Amounts paid to Sriram Transport and Finance Co. 41,344. 00 11. Paid House Tax 3,480. 00 12. Education Expenditure 20,980. 00 13. Expenditure incurred on betrothals of his sons and niece marriage 21,600. 00 14. Expenditure incurred on sisters marriage and sons marriage 25,500. 00 total 2,88,199. 00 sl. No. ASSISTS HELD BY THE ACCUSED AND HIS WIFE particulars of Assets amount Rs. 1. Housing Plot bearing No. 10, Siddardha Nagar, Vizianagram purchased on 16-5-1989 12,221. 00 2. Two-storied house on plot mentioned above 5,69,624. 00 3. 00 14. Expenditure incurred on sisters marriage and sons marriage 25,500. 00 total 2,88,199. 00 sl. No. ASSISTS HELD BY THE ACCUSED AND HIS WIFE particulars of Assets amount Rs. 1. Housing Plot bearing No. 10, Siddardha Nagar, Vizianagram purchased on 16-5-1989 12,221. 00 2. Two-storied house on plot mentioned above 5,69,624. 00 3. House No. MIG-195 at Babametta, Vizianagram 50,000. 00 4. Expenditure incurred for compound wall and well in the above house _ 5. Electrification charges to the house at Sidhardhanagar. 7,040. 00 6. Shares of NFCL, Hyderabad (400 Nos) 6,905. 00 7. 60 Rights shares of Gold Star Steel and Alloys Ltd. , each Rs. 10/ 600. 00 8. 100 equity shares of Gold Star Steel and Alloys Ltd. , each Rs. 5/ 0 500. 00 9. Deposits in Pennar Patterson, Hyderabad 2,000. 00 10. Balance in SB A/c No. 9949 of DCCB, Vizianagaram 181. 44 11. Balance in SB A/c No. 3295 of Vysya Bank, Vizianagram 511. 00 12. Balance in SB A/c No. 31/5670 of SBI, Bazar Branch 233. 4 13. Inventory of Movable assets including Cars 2,91,852. 00 total 9,41,667. 84 @@ ( 40 ) FROM the above statements, it is clear that the total income of the appellant during the check period is Rs. 11,74,422. 49, whereas the total expenditure incurred by him during the period is taken to be Rs. 2,88,199. 00. Thus, after deducting the total expenditureincurred by the accused during the relevant period from the total income received by him, an aggregate sum of Rs. 8,86,223. 49 was available with him whereas the total assets of the accused amounted to Rs. 9,41,677. 84 ps. Thus, the accused is possessing the assets worth rs. 55,444. 84 in excess of the surplus income available to him (i. e. , Rs. 9,41,667. 84 minus rs. 8,86,223. 00 = Rs. 55,444. 84 ). Since the excess was comparatively small, i. e. , less than ten per cent of the total income, applying the dicta laid down by the apex court in Krishnanand v. State of M. P. , it can be held that the appellant- accused did not possess any assets disproportionate to his known source of income during the period of check. Since the excess was comparatively small, i. e. , less than ten per cent of the total income, applying the dicta laid down by the apex court in Krishnanand v. State of M. P. , it can be held that the appellant- accused did not possess any assets disproportionate to his known source of income during the period of check. ( 41 ) FOR the foregoing reasons, I am of the view that the appellant-accused is not liable for punishment under the provisions of the prevention of Corruption Act and the judgment of conviction and sentence passed by the court below is accordingly liable to be set aside. ( 42 ) IN the result, the criminal appeal is allowed and the Judgment of the conviction and sentence passed by the learned Special judge for C. B. I. Cases, Visakhapatnam in c. C. No. 5 of 1996 is set aside and the appellant-accused is acquitted of the charge framed under Section 13 (2) read with 13 (i) (e) of the Prevention of Corruption Act, 1988. The fine amount, if paid, shall be refunded to the appellant.