Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 1590 (RAJ)

Ashok Kumar Thakur v. State of Rajasthan

2008-07-01

K.S.RATHORE

body2008
Honble RATHORE, J.–On 30.5.2008, the matter was listed on the stay application filed on behalf of the accused-appellant for staying the conviction/judgment dated 29.11.2007 passed by the Special Judge, CBI Cases, Jaipur in Special Criminal Case No. 12/1997, by which the accused-appellant has been convicted under Section 13(1)(E) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 15,000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months. An amount of Rs. 2,37,545/- was also ordered to be confiscated. (2). On 20.5.2008, both the parties were agreed that the matter may be heard finally at this stage and on that date, learned counsel Mr. Tyagi, appearing for the respondent CBI prayed for some time to prepare and argue the case. Today the matter is listed for final arguments. (3). Learned counsel for the accused-appellant wishes to withdraw the stay application for staying the conviction/judgment dated 29.11.2007 passed by the Special Judge, CBI Cases, Jaipur. (4). Accordingly, the criminal misc. stay application stands rejected as withdrawn. (5). The present criminal appeal is directed against the judgment dated 29.11.2007 passed by the Special Judge, CBI Cases, Jaipur, by which the accused-appellant has been convicted under Section 13(1)(E) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 15,000/- in default of payment of fine, to further undergo rigorous imprisonment for six months. The Special Judge also ordered to confiscate the amount of Rs. 2,37,545/-. (6). Brief facts of the case are that on the basis of the source information, a case was registered vide Ex. P/285 and the same is reproduced hereunder:- "It has been learnt from reliable source that Shri A.K. Thakur is a habitual corrupt public servant of the office of Income Tax, Jaipur. He joined Income Tax Department as LDC during 1969, was promoted as UDC during 1975 and promoted as Head Clerk during 1994. Shri Thakur while functioning as Public Servant in the said capacities had been abusing his official position and by corrupt and illegal means amassed huge assets which are disproportionate to his known sources of income and for such he has not satisfactory explanation. Shri Thakur while functioning as Public Servant in the said capacities had been abusing his official position and by corrupt and illegal means amassed huge assets which are disproportionate to his known sources of income and for such he has not satisfactory explanation. During the entire period of his service, his legitimate income has been only from the salary from his department. He has one son and one daughter, both are getting education in expensive schools at Jaipur. Shri Thakur has been leading luxurious life. His income, expenditure and assets have been computed as under:- I. Income (Rs.) (By way of salary from 1969 to 31.7.95) 4,60,000/- II. Expenditure (a) Household expenditure 50% of the income (taken on lower side) 2,30,000/- (b) Expenditure over education of children 40,000/- 2,70,000/- III. Assets (a) House at F/237, Priyadarshani Marg, Shyam Nagar Extension, Jaipur. 8,00,000/- (b) Colour T.V. 10,000/- (c) Scooter 15,000/- (d) Car 1,25,000/- (e) Refrigerator 6,000/- (f) Furniture 25,000/- (g) Jewellery 60,000/- (h) Misc. Household articles 1,00,000/- (i) Bank deposits/LIC Policy/FDR 1,00,000/- 12,41,000/- Shri Thakur during the entire service period has amassed total assets of Rs. 12,41,000/- either in his own name or in the name of his family members are against his likely savings of Rs. 1,90,000/- (i.e. income Rs. 4,60,000/-, expenditure Rs. 2,70,000/-). Thus, he has assets disproportionate to his known sources of income to the tune of Rs. 10,51,000/-, for which he has no satisfaction explanation. The aforesaid facts disclose commission of offence perpetrated by Shri A.K. Thakur, which are punishable u/S. 5(2) r/w 5(1)(e) of PC Act, 1947/ Sec. 13(2) r/w 13(1)(e) of PC Act, 1988. Hence, a regular case is registered and entrusted to Shri R.D. Kalia, Dy. SP, CBI, Jaipur for thorough probe." (7). Raid was conducted by Shri R.D. Kalia, the then Deputy Superintendent of Police, Central Bureau of Investigation, Jaipur and search of the complete house was made and Seizer Memo Ex. P.1 was prepared. Thereafter investigation was conducted and after obtaining sanction from sanctioning authority, the charge-sheet was submitted in the Court of Special Judge, CBI Cases, Jaipur, whereby the CBI came to the conclusion that Rs. 10,51,000/- were disproportionate to his known sources of incomes. (8). P.1 was prepared. Thereafter investigation was conducted and after obtaining sanction from sanctioning authority, the charge-sheet was submitted in the Court of Special Judge, CBI Cases, Jaipur, whereby the CBI came to the conclusion that Rs. 10,51,000/- were disproportionate to his known sources of incomes. (8). The copies of the statements and documents were supplied to the accused-appellant and upon hearing the rival submissions of both the parties, the Court below framed charges in which the disproportionate property was observed as Rs. 7,63,783/-. On behalf of the prosecution, as many as 56 witnesses were examined and 332 documents were exhibited. Thereafter the statement of the accused-appellant was recorded under Section 313 Cr.P.C. In defence 4 witnesses were examined and exhibited 8 documents. (9). The Special Judge, CBI Cases, Jaipur City, Jaipur after hearing the submissions of respective parties, vide its impugned judgment dated 29.11.2007, convicted and sentenced the accused appellant as indicated herein above. (10). Being aggrieved and dissatisfied with the impugned judgment dated 29.11.2007, the accused appellant has preferred the instant criminal appeal on the ground that the judgment passed by the Special Judge is totally contradictory to the evidence available on record as except the Investigating Officer, none of the witness has supported the prosecution case. There is not a single witness who deposed that the financial position of the mother of the accused-appellant Smt. Lila Thakur and mother-in-law of the accused-appellant Smt. Sita Punjabi was not good and they were not in a financial position to support the accused financially and could not give the articles in question. (11). Further the prosecution while taking the income Rs. 7,52,704.41 has not considered the income of Sanjay, the son of the accused-appellant, as stated by PW. 50 Sanjay, DW1 Omprakash, DW2 Neelam and DW4 Brajesh and there is no cross-examination by the prosecution from the defence witnesses. So far as income from the sale of the house is concerned, the prosecution has taken only Rs. 49,245/- but the original amount invested and received by sale Rs. 61,755/- has not been considered, whereas most of the witnesses have stated house was sold for Rs. 1,11,000/- including the Investigating Officer. (12). So far as the articles given by Smt. Lila Thakur in gift; (1) Scooter, concerning documents are Ex. P. 246 and 247 and PW. 49,245/- but the original amount invested and received by sale Rs. 61,755/- has not been considered, whereas most of the witnesses have stated house was sold for Rs. 1,11,000/- including the Investigating Officer. (12). So far as the articles given by Smt. Lila Thakur in gift; (1) Scooter, concerning documents are Ex. P. 246 and 247 and PW. 30 who had sold the scooter, he has categorically stated that the payment was made by Lila Thakur; (2) Fridge, the concerned documents are Ex. 259 to 262 and witnesses PW.38 Rupendra has stated that the amount was received by cheque from the account of Lila Thakur; (3) Vacuum Cleaner, the concerned documents are Ex. P.283 and 284 and in this regard PW. 54 R.D. Mathur has deposited that the amount was paid by Lila Thakur; (4) With regard to Gas Cylinder, the prosecution has not examined any witness to prove that the amount was paid by the accused for purchase of the Gas Cylinder, whereas PW.8, PW.9, PW.12, PW. 42, PW.43, PW.50 and DW 2 have categorically stated that the above items were purchased by Smt. Lila Thakur and had given in gift either to the accused- appellant or to his children. (13). It has been further contended that the Special Judge has drawn inference only on the basis of surmises and conjectures stating that the financial position of the mother was not good. The Special Judge in this connection has misread the evidence of Smt. Lila Thakur, in which she has stated that ^^eSa cMs yMds ij vkfJr gwaA** (14). At the time of search, mother-in-law of the accused- appellant Smt. Sita Punjabi had claimed that the amount of Rs. 2,40,000/- belongs to her but the Search Officer malafidely did not mention this fact in the search memo, but in the cross- examination PW.56 Shri R.D. Kalia has admitted that ^^eqfYte dh lkl us dqN udn jkfk viuh gksuk crk;h FkhA** (15). PW.1 Sudeep Banerjee, the Motbir of the search, in his cross-examination has stated that ^^vfHk;qDr dh lkl us ;g jkfk viuh crk;h gks ;g ckr /;ku ugha gSA** He has not denied. (16). Further PW 4 R.L. Aheer, the another Motbir of the search has stated that ^^vxj eqfYte dh lkl us :i;k viuh gksus dh ckr dgha gks rks eq>s ;kn ugha** He has also not denied. (17). (16). Further PW 4 R.L. Aheer, the another Motbir of the search has stated that ^^vxj eqfYte dh lkl us :i;k viuh gksus dh ckr dgha gks rks eq>s ;kn ugha** He has also not denied. (17). PW.8 Lila Thakur, the mother of the accused-appellant, PW.43 Kavita Thakur, the wife of the accused-appellant and PW.50 Sanjay Thankar, who were present at the time of search, have also stated that mother-in-law of the accused-appellant had told the Search Officer that the amount belongs to her. (18). As per the evidence of PW.8 Lila Thakur, PW. 7 Sita Punjabi, PW.12 Deepak Thakur, PW. 22 Chuhar Mal Punjabi, the brother of Sita Punjabi, PW. 23 Ashok Makhija, the son of the sister of Sita Punjabi, PW. 42 Mohini Bambani, the sister of the accused-appellant, PW. 43 Kavita Thakur, the wife of the accused- appellant, PW. 46 Harbans Singh Bhatia, PW. 50 Sanjay Thakur, DW.2 Neelum Harjani and DW. 3 Prakash Makhija, they have categorically stated and admitted that she had brought about Rs. 5,00,000/- in cash when she came from Jodhpur. (19). Further the mother-in-law of the accused-appellant Smt. Sita Punjabi had given (1) Music System, (2) Motor Cycle, (3) Car, (4) Carpet, (5) Double Bed, (6) Television, (7) Deck, (8) Jhula and (9) Cooler and these items were purchased from her own money and given to the family of the accused-appellant in gift. (20). So far as Music System is concerned, Ex. P. 63 and 266 stand in the name of Sita Punjabi and PW. 23 Sanjay Periwal has stated that the amount was paid by Smt. Sita Punjabi through cheque. The another item is Motorcycle and the concerned documents are Ex. P. 281 and 282 which also stand in her name and PW. 53 Deepak Shrivastava has stated that the amount for the aforesaid item was paid by Smt. Sita Punjabi through cheque. (21). With regard to other items, PW. 8 Lila Thakur, PW. 9 Sita Punjabi herself, PW. 12 Deepak Thakur, PW. 22 Chuhar Mal Punjabi, PW. 23 Ashok Makhija, PW. 42 Mohini Bambani, PW. 43 Kavita Thakur, PW.50 Sanjay Thakur, DW.2 Neelam Harjani and DW.3 Prakash Makhija have categorically stated that these items were purchased by Smt. Sita punjabi and given to the family members of the accused-appellant in gift. 9 Sita Punjabi herself, PW. 12 Deepak Thakur, PW. 22 Chuhar Mal Punjabi, PW. 23 Ashok Makhija, PW. 42 Mohini Bambani, PW. 43 Kavita Thakur, PW.50 Sanjay Thakur, DW.2 Neelam Harjani and DW.3 Prakash Makhija have categorically stated that these items were purchased by Smt. Sita punjabi and given to the family members of the accused-appellant in gift. There is not a single witness from the prosecution side to controvert the fact that for purchasing these items, the accused-appellant paid the amount. Therefore, the amount of Rs. 1,45,538/- towards these items cannot be included in the assets of the accused-appellant. (22). The other contention that the cost of items has been taken by the Search Officer to the higher side and the difference of price claimed by the accused-appellant comes to Rs. 72,375/-, it may be stated that no witness including the Investigating Officer PW. 56 Shri R.D. Kalia has stated that the price mentioned by him at the time of search was given by the accused-appellant or by his any family member, rather the evidence of the prosecution is contradictory. PW.1 Sudeep Banerjee, the Motbir of the search has stated that ^^eqfYte dks dher dk ekywe ugha FkkA** He further stated that ^^dherksa ds lEcU/k esa xokgksa ls dqN ugha iwNk x;k] ge rks dsoy ns[k jgs Fks] blesa ,fDVo ikfVZflisku ugha fd;k FkkA** (23). PW.4 R.L. Aheer has admitted that ^^tks vkbVe ogka ij feys mu lHkh vkbVeksa dh dhersa] eSa ugha tkurk Fkk] ?kjsyw NksVs eksVs lkeku dh dher lhchvkbZ okyksa us vius vki yxk;h FkhaA** (24). From the evidence of PW. 8 Lila Thakur, PW. 9 Sita Punjabi, the accused-appellant himself and the Investigating Officer in the cross-examination, it was brought on record that price of certain articles was taken on presumption basis to the higher side and when he was confronted with their bills, he admitted that the price taken in the search memo was in excess and he had admitted that ^^lwph esa phtksa dh tks dher fy[kh og dqN dh vuqeku ds vk/kkj ij fy[kh gSAa** (25). He further stated that ^^tks nksuksa xokg og lEifr dh dher ds foks"kK ugha gSA** He has nowhere stated that the prices were given by the accused-appellant. He further stated that ^^tks nksuksa xokg og lEifr dh dher ds foks"kK ugha gSA** He has nowhere stated that the prices were given by the accused-appellant. The Investigating Officer has admitted that the prices were taken on approximation basis and thus, there is no reason to disbelieve the contention of the accused-appellant that the prices were taken to the higher side. (26). As regards education of the children, most of the expenditure was being borne by the mother-in-law of the accused- appellant. Even PW.3 Sudhir Kumar Singh, Director, Saint Admandus School, Jawahar Nagar has deposed that ^^rhuksa cPpksa dh Qhl tek djkus vkksd Bkdqj dh lkl vkrh FkhaA** (27). So far as Rs. 3,000/- are concerned, Rs. 1,677/- were not paid till the search was made and was to be paid to M/s. Asha Neeta PCO Services and for the remaining amount of Rs. 1,323/-, there is statement of PW.18 Moan Kumar, who has categorically admitted that ^^dkUQzsfUlax ,-ds- Bkdqj ds ;gka ls budh lkl tks/kiqj ds fy, djrh Fkh] D;ksafd og ,lVhMh ij vk ugha ldrh FkhaA** He further admitted that ^^;g lgh gS fd vxLr 95 rd 1677-43 iSlk ,-ds- Bkdqj dh vksj cdk;k FksA** (28). Thus, the remaining amount of Rs. 1,323/- which was being done by the mother-in-law to her relations at Jodhpur and as such this amount was being spend by the mother-in-law of the accused- appellant and this amount cannot be added in the expenditures of the accused-appellant. (29). So far as amount spent for purchasing 6 pieces of diamond worth Rs. 1,650/- is concerned, there is statement of PW. 6 Madhav Kalra, who has categorically stated that ^^eqfYte ,-ds- Bkdqj dks eSa ugha tkurkA tgka eq>s ;kn gS bl ekeys ds fy, nks vkSjrsa vkbZ FkhA iSls nks vkSjrksa esa ls cMh vkSjr us fn;sA** (30). There is no evidence of the prosecution to say that this amount was paid by the accused-appellant and as such, the same cannot be included in the assets of the accused-appellant. (31). Further so far as amount of Rs. 8,134/- is concerned, the said amount pertains to the insurance premium paid on Bajaj Scooter and Fiat Car. The amount of Rs. 178/- comes to the insurance premium of the Scooter. This amount was borne by the accused-appellant, but as regards remaining amount of Rs. (31). Further so far as amount of Rs. 8,134/- is concerned, the said amount pertains to the insurance premium paid on Bajaj Scooter and Fiat Car. The amount of Rs. 178/- comes to the insurance premium of the Scooter. This amount was borne by the accused-appellant, but as regards remaining amount of Rs. 7,956/- , the same is the premium of Fiat Car which was purchased by the mother-in-law of the accused-appellant out of her own funds and this amount cannot be included in the expenditures of the accused-appellant. (32). The another aspect relied upon is recovery of one bottle of IMF liquor, by which the Special Judge has presumed that the standard of living was high, but the Special Judge has totally ignored the evidence available on the record. By bare reading of the evidence of PW.12 Deepak Thakur, it seems that there is typographical error as in the earlier cross-examination he has admitted that ^^jgu&lgu lkekU; ukSdjh iskk yksxksa dk gksrk gS] ,slk Fkk] [kphZyk ugha FkkA** (33). Further this witness himself made it clear that ^^esjss thtkth Dykl ou vkfQlj FksA os kjkc ihrs FksA fonsk esa gekjs fjrsnkj jgrs gSaA os tc Hkh vkrs Fks] os eqfYte dks fxV nsdj tkrs FksA** (34). The Special Judge has ignored the statement of PW.9 Sita Punjabi, who has categorically stated that ^^vkksd Bkdqj ds ;gka kjkc feyh] mldh cgu ds vkneh vkrs Fks] os ysdj vkrs FksA** (35). PW.8 Lila Thakur has also stated that ^^vkksd ds kjkc cksry fudyh og esjs taokbZth vkfQlj Fks] os nwljs taokbZ tks ,-th- vkfQl esa Fks] muds fy, og ysdj vkrs Fks] og feyh FkhA** (36). PW. 42 Smt. Mohini Bambani has also stated that ^^vkksd Bkdqj ds xyr kkSd nk: ihus o ehV [kkus dk ugha FkkA** DW.1 Om prakash also stated that ^^eqfYte kjkc ugha ihrkA** As per DW.2 Neelam Harjani ^^kjkc ihus [kpkZ djus dk kkSdhu ugha FkkA** (37). As per the accused-appellant the prosecution has taken the disproportionate income from the known sources to the tune of Rs. 7,52,704/- and he submitted his explanation as under:- (i) The prosecution taken the income 7,52,704.00 (ii) Income of Sanjay from tuition and other income not considered by the prosecution in spite of the prosecution evidence 24,500.00 (iii) Sale price of the house of Jawahar Nagar. The prosecution has considered only Rs. 49,024.50 while the balance of Rs. 7,52,704/- and he submitted his explanation as under:- (i) The prosecution taken the income 7,52,704.00 (ii) Income of Sanjay from tuition and other income not considered by the prosecution in spite of the prosecution evidence 24,500.00 (iii) Sale price of the house of Jawahar Nagar. The prosecution has considered only Rs. 49,024.50 while the balance of Rs. 61,975.50 was also to be included in the income because the investment in Shyam Nagar property has been taken full investment. 61,975.00 The double expenditure of property cannot be taken. 8,39,179.00 16,88,002.66 (iv) So far assets and expenditure is concerned, the prosecution in the charge-sheet has taken out of these at the stage of charge. The Special Judge deducted the cost of Rs. 8,39,500/- and has been taken only Rs. 3,45,000/- The price of the house deducted (-) 8,39,500.00 7,49,502.66 Cost of the house taken (+) 3,45,000.00 Thus value of the assets 11,39,502.66 Expenditure the prosecution has taken Rs. 4,28,581.01 but at the stage of charge Rs. 2,85,721/- were taken and those comes (-) 4,28,581.01 7,10,921.65 The added expenditure (+) 2,85,721.00 9,96,642.65 Out of these there is overwhelming evidence of the prosecution that cash found at the house belongs to mother-in-law and that is to be deducted (-) 2,40,460.00 Items of mother-in-law There is overwhelming evidence that these items were brought by her when she shifted from Jodhpur to Jaipur. (-) 1,42,093.00 6,14,089.65 Items given by mother There is overwhelming evidence of the prosecution valued (-) 3,92,219.00 Now remains Rs. 5,74,870.65 Investment in computer business. This amount was taken by Sanjay as loan (-) 20,500.00 Rs. 5,54,370.65 Gifts received from the mother-in-law and other relative. There is overwhelming evidence to this effect (-) 4,37,045.65 Difference of price There is no contradiction in the prosecution evidence and the evidence in favour of the accused. Almost all the witnesses have proved it (-) 72,304.00 Remains 3,58,741.65 (38). Thus, the income of the accused to Rs. 8,39,179.00, while the assets and expenditures against the accused comes to only Rs. 3,58,741.65 and these are to be explained by the accused- appellant. (39). In this way, in view of Rs. 8,32,678.50, the assets and expenditure to the account of the accused is their. (40). Though, the concerning witnesses have stated that mother- in-law was spending on the education of the children and was incurring expenses of the Kitchen. 3,58,741.65 and these are to be explained by the accused- appellant. (39). In this way, in view of Rs. 8,32,678.50, the assets and expenditure to the account of the accused is their. (40). Though, the concerning witnesses have stated that mother- in-law was spending on the education of the children and was incurring expenses of the Kitchen. There is not a single witness of the prosecution to contradict the same. Thus, looking from any angle, no case of disproportionate assets is made out against the accused-appellant. (41). On the other hand, learned counsel Mr. Tyagi, Special Public Prosecutor appearing for the CBI controverted the submissions made by the learned counsel for the appellant and contended that looking to the facts and circumstances of the case and as per the material available on the record, the accused- appellant has rightly been convicted and sentenced by the Special Judge vide impugned judgment dated 29.11.2007. (42). I have heard learned counsel for the accused-appellant, learned Special Public Prosecutor appearing for the CBI and have also gone through the impugned judgment dated 29.11.2007 as well as the entire material available on the record. (43). The Honble Supreme Court in the case of Krishanand Agnihotri vs. State of M.P., reported in AIR 1977 SC 796 , has held that it is not enough merely to show circumstances which might create suspicion, because the Court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. (44). Reliance on the aforesaid judgment has been placed by the learned counsel to show that income of the mother-in-law of the accused-appellant was not segregated from the assets of the accused-appellant and on the basis of the suspicion, assets of the mother-in-law of the accused-appellant have been added in the assets of the accused-appellant. (45). Further in the case of DSP, Chennai vs. K. Inbasagaran, reported in (2006) 1 SCC 420 = RLW 2006(1) SC 434, the Honble Supreme Court has held that the initial burden was on the prosecution to establish whether the accused had acquired the property disproportionate to his known source of income or not. In this case the prosecution has tried to establish that all the monies belonged to the accused and after taking sanction, prosecution was launched against the accused. In this case the prosecution has tried to establish that all the monies belonged to the accused and after taking sanction, prosecution was launched against the accused. At the same time, the accused has to account for the money in his hand satisfactorily and satisfy the Court that his explanation was worthy of acceptance. In this case, the accused-respondent has explained the possession of the unaccounted money. (46). It has been further observed that when the accused has provided satis-factory explanation that all the money belonged to his wife and she has owned it and the Income Tax Department has assessed it in her hand, then, in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or the head of the family. It is true that the prosecution in the present case has tried its best to lead evidence to show that all these monies belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the income tax returns and she has accepted the whole responsibility, in that case it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of the wealth belonged to the husband and how much belonged to the wife. (47). In the instant case, the mother-in-law is admittedly living with the accused-appellant and it is also admitted that her husband died and she brought all assets with her. It is also not disputed that no separate seizure memo was prepared by the prosecution so far as belonging of the mother-in-law of the accused-appellants are concerned and, therefore, it is very difficult to segregate that how much of the assets belonged to mother-in-law and how much belonged to the accused-appellant, as held by the Honble Supreme Court in the case of DSP, Chennai vs. K. Inbasagaran (supra). (48). (48). The Andhra Pradesh High Court in the case of M. Sreeramulu vs. State of A.P., reported in 2003 Cri. L.J. 2956, while dealing with Section 13 of the Prevention of Corruption Act has observed that "Case relating to alleged disproportionate assets- Prosecution has to establish that the various items which it attributes to the public servant are held by him directly or even indirectly- Item included in list of assets-Ownership in respect of these items accepted by prosecution on the basis of certain assumptions-Even the Investigating Officer was not sure about the ownership of the appellant vis-a-vis the said items- Appellant did not held any assets disproportionate to his known sources of income-Conviction liable to be set aside. (49). Here in the instant case also, even at the time of search the mother-in-law of the accused-appellant has categorically stated that the money which was recovered from the Almirah belongs to her and the seizure memo prepared by the CBI includes belongings of the mother-in-law of the accused-appellant. (50). Most of the prosecution witnesses, namely PW.8 Lila Thakur and PW.9 Sita Punjabi declared hostile and they did not support the story of the prosecution. (51). The Madhya Pradesh High Court in the case of Subhash Kharate vs. State of M.P., reported in 2000 Cri. L.J. 1178, has held that "Possession of property disproportionate to income- Allegations that purchases of plot by accused, a Forest Ranger in name of his wife was benami- Statement of witness that said plot was purchased by father of accused-wife- cannot be discarded only on ground that said witness turned hostile- Failure on part of prosecution to prove that said plot was purchased benami out of funds of accused-It cannot be said that said plot and house constructed thereon was acquired by the accused in excess of his legal and known sources of income-Conviction of accused under S. 5(1)(e), not proper." (52). The accused-appellant has submitted his explanation giving details and as per the charge framed by the Special Judge, the accused-appellant is having disproportionate property to the tune of Rs. 7,63,783/-. The accused-appellant has submitted his explanation giving details and as per the charge framed by the Special Judge, the accused-appellant is having disproportionate property to the tune of Rs. 7,63,783/-. There was no reason to disbelieve the explanation submitted by the accused-appellant, but the Special Judge has not properly considered the same and has not given findings on the explanation given by the accused-appellant, as the Honble Supreme Court in the case of P. Satyanarayan Murty vs. State of A.P., reported in 1992 (3) Crimes 36, has held that "Appellant being a public servant allegedly acquired assets which were disproportionate to his known sources of income and that he was found in possession of pecuniary resources of property in his name and the names of his father and his wife for which he could not given satisfactory account - Finding of the High Court not supported by legal evidence - Prosecution has not satisfactorily established that the appellant was holding assets disproportionate to his known sources of income-Conviction set aside. (53). Further the Special Judge has wrongly arrived at a conclusion that the mother-in-law and mother of the accused- appellant were not spending any money on the education of the accused-appellants children and the expenses of kitchen as the mother and mother-in-law of the accused-appellant are not able to maintain themselves, but no finding has been given by the Special Judge before arriving at a conclusion as this High Court in the case of Dr. Gurudas Mal Saluja vs. State of Raj., reported in 1986 R.L.R. 150, has held that while alleging something against the appellant, there should be some basis for it. Merely on conjectures and on an oral estimation of the investigating officer, it cannot be made basis for coming to the conclusion that the ornaments were collected by the appellant from undisclosed sources of income. (54). I have also carefully gone through the judgments cited by the learned Special Public Prosecutor appearing for the respondent CBI. (55). Honble the Supreme Court in the case of P. Nallammal and Anr. vs. State Represented by Inspector of Police, reported in (1990) 6 SCC 559, has held that possession of wealth in excess of known source of income- Known source of income should be any lawful source and receipt of such income should have been intimated by the public servant in accordance with law applicable to him. (56). vs. State Represented by Inspector of Police, reported in (1990) 6 SCC 559, has held that possession of wealth in excess of known source of income- Known source of income should be any lawful source and receipt of such income should have been intimated by the public servant in accordance with law applicable to him. (56). It has been further observed that two postulates must combine together for crystallization into the offence, namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it/them. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. (57). Section 13(1)(e) of the Prevention of Corruption Act, 1988 and the Explanation read as under:- "13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,- (a)-(d)......................... (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant." (58). All the ingredients of Section 13(1)(e) of the Prevention of Corruption Act have been observed by the Honble Apex Court in the case of P. Nallammal And Another vs. State Represented by Inspector of Police (supra). (59). Similarly in the case of Hindustan Petroleum Corporation Ltd. vs. Sarvesh Beery, reported in (2005) 10 SCC 471 , while dealing with Section 13(1)(e) of the Prevention of Corruption Act, it has been observed by the Honble Supreme Court that "Known source of income" - Meaning- Expression relates to sources which are within the knowledge of authorities and not within the knowledge of the accused-Onus is on accused to prove that the assets found were not disproportionate to the known sources of income. (60). (60). Upon careful perusal of the impugned judgment dated 29.11.2007, it appears that the Special Judge has not given findings as to how the explanation which has been given by the accused-appellant is not believable. Admittedly, the assets belonged to the mother-in-law of the accused-appellant have been added in the assets of accused-appellant and it is also admitted by the Investigating Officer that only one seizure memo was prepared which includes assets of the mother-in-law of the accused-appellant. As per the ratio decided by the Honble Supreme Court, it is very difficult to segregate the assets which belongs to the mother-in-law of the accused-appellant and it is also not disputed that the mother-in-law is living with the accused-appellant after the death of her husband. (61). Further the Special Judge has seriously erred in not considering the defence statements that son of the accused- appellant had borrowed money to start the business of computer and the assets of the son of the accused-appellant have also been included in the assets of the accused-appellant. (62). The Special Judge has not assigned any particular reason to disbelieve the story that the money recovered from the house was jointly calculated and major part of it was claimed by the mother-in-law of the accused-appellant at the time of seizure but the same has been disbelieved by the Special Judge without giving definite finding on this issue. (63). Thus, the case of disproportionate property has been registered against the accused-appellant on the basis of suspicion, assumptions and presumptions and the same has not been established by the prosecution by legal grounds and evidence. (64). In view of the discussions made herein above, this Court is neither agree with the prosecution case nor agree with the conclusion arrived at by the Special Judge while passing the impugned judgment dated 29.11.2007 and this Court is fully satisfied with the explanation given by the accused-appellant and hold that the assets found in possession of the accused-appellant are not disproportionate assets to his known sources of income and, therefore, no offence is made out against the accused- appellant and the prosecution has failed to establish a case for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the accused-appellant. (65). In the result, the present appeal filed by accused- appellant Ashok Thakur is allowed. (65). In the result, the present appeal filed by accused- appellant Ashok Thakur is allowed. The conviction and sentence passed against the accused-appellant under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 by the Special Judge, CBI Cases, Jaipur vide impugned judgment dated 29.11.2007 are set aside and he is acquitted of the said charge. Since the accused-appellant is on bail, his bail bonds stand discharged.