JUDGMENT : A.S. Naidu, J. - The Accused-Appellant was in Railway Service as a Ticket Collector. He faced charges under Sections 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 for having committed criminal misconduct being a public servant as he was found in possession of pecuniary resources and properties in his name and in the name of his wife - Mohinibala Mishra, son and daughter to the extent of Rs. 59,865.03, which, according to the prosecution was disproportionate to his known source of income. He faced trial in T.R Case No. 3 of 1983 in the Court of the learned Special Judge, Bhubaneswar and being found guilty, convicted and sentenced to undergo R.I for one year and to pay a fine of Rs. 2,000/- in default, to undergo S.I for a further period of four months. The said order of conviction and sentence is assailed in this Criminal Appeal. 2. As would be evident from the F.I.R and other documents, the accused-Appellant was working in the Indian Railways and was holding the post of Train Ticket Examiner "C" and his initial pay was Rs. 55/- but then that was subsequently enhanced to Rs. 380/- per month. He hailed from a lower middle class family inasmuch as both his parents were Primary School Teachers and his father had inherited only Ac.5.000 of land. He had four brothers and as such the family was always hand to mouth. The accused-Appellant married Smt. Mohinibala in the year 1969 without much dowry. After receiving several complaints an investigation was made and it was found that during the check period i.e. from 16.2.1961 to 28.2.1977 the accused-Appellant had purchased Ac.0.56 decimals of land for Rs. 3,500/- in the name of his wife and had constructed a double storied building conservatively estimated at Rs. 6,01,000/-. He had also acquired another building at Barchana worth of Rs. 34,000/- apart from Ac.2.000 of land in his village and two bullet motorcycles. He was also in possession of gold ornaments and other assets and was maintaining two Savings Bank Accounts in the name his wife and daughter. It was alleged that the entire salary drawn by the accused-Appellant during the check period was Rs. 35,000/- but the assets both movable and immovable possessed by him were worth Rs. He was also in possession of gold ornaments and other assets and was maintaining two Savings Bank Accounts in the name his wife and daughter. It was alleged that the entire salary drawn by the accused-Appellant during the check period was Rs. 35,000/- but the assets both movable and immovable possessed by him were worth Rs. 1,05,667.55 which according to the prosecution indicated that the accused-Appellant was in possession of properties and pecuniary resources disproportionate to his known source of income. 3. The plea of the accused-Appellant before the learned Special Judge was complete denial. He further stated that the Investigating Officer had not taken the income of his wife as well as the income from his joint family properties into consideration. According to the Appellant his wife had bought a plot of land and had constructed a house over it. 4. In order to substantiate its case the prosecution got 24 witnesses examined and exhibited 61 documents. On the other hand the defence got four witnesses examined and exhibited a number of documents. After discussing the evidence in exienso the learned Special Judge came to the conclusion that the prosecution was able to prove beyond reasonable doubt that the accused-Appellant was in possession of assets worth of Rs. 59,865.03 which were disproportionate to his known sources of income and that he had failed to account for satisfactorily the acquisition of the properties and pecuniary resources held or possessed by him. On the basis of such conclusion the learned Special Judge held the accused Appellant liable for u/s 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 and convicted and sentenced him thereunder. 5. Mr. Mishra, learned Counsel appearing for the Appellant forcefully submitted that the trial Court has not appreciated the evidence properly and the conclusions arrived at by it were based on mere surmises and conjectures. It is stated that the trial Court committed errors which were apparent on the face of the record inasmuch as though the land and dwelling house was purchased/constructed by the wife of the accused-Appellant D.W.4 the prosecution alleged that it was held 'benami' by the accused-Appellant. It was further stated that the Court below ignored the statements of D.W.3, the father-in-law of the Appellant with regard to gift of the plot to his daughter on her marriage. It was further stated that the Court below ignored the statements of D.W.3, the father-in-law of the Appellant with regard to gift of the plot to his daughter on her marriage. It has also ignored the income of D.W. 4 from Milk business and the income derived from a Haller installed in the village out of which the house was constructed. According to Mr. Mishra the trial Court lost sight of the settled position of law that the onus on the accused was not as heavy as that on prosecution to establish the facts and it has failed to apply the said principle in the case which coming to the conclusion that the accused-Appellant had failed to account for the disproportionate assets. In short according to Mr. Mishra the learned Special Judge lost sight of the admitted income of the Appellant derived from different sources like landed properties of the joint family, sale of milk, Haller business by the wife of the accused-Appellant and other admitted sources of income; and the conclusions arrived at, thus cannot be sustained. 6. Mr. Padhi, learned Counsel appearing for the Vigilance Department relying upon the evidence of P.W.5 coupled with Ext.17 submitted that the accused-Appellant was initially working as a Provisional Ticket Collector initially and drawing a salary of Rs. 55/- only. He was promoted to the post of Travelling Ticket Collector and was drawing a salary of Rs. 130-212/per month, which was subsequently enhanced, to Rs. 392/-. Taking into consideration the entire salary and other service benefits, as would be evident from Ext.17 the personal file of the accused-Appellant, according to Mr. Padhi the total amount received by the Appellant was Rs. 44,765.06 towards net pay during the relevant period. Apart from the said amount the Appellant had received a sum of Rs. 5,120/- towards house rent from P.W.2 the tenant. He had received interest on various savings bank deposits and a sum of Rs. 2,280/- towards Provident Fund. Calculating the aforesaid figures the total income of the Appellant came to Rs. 54,473.91 during the check period. Deducting the amount which might have been spent towards expenditure incurred by the accused-Appellant during the check period Mr. Padhi submitted that only a sum of Rs. 16,444.52 became surplus amount. Mr. Padhi further placed reliance on the evidence of P.Ws. Calculating the aforesaid figures the total income of the Appellant came to Rs. 54,473.91 during the check period. Deducting the amount which might have been spent towards expenditure incurred by the accused-Appellant during the check period Mr. Padhi submitted that only a sum of Rs. 16,444.52 became surplus amount. Mr. Padhi further placed reliance on the evidence of P.Ws. 4, 6, 14, 15, 17, 19 and also referred to Exts.23-28, 32, 34; 35, 36 which proved that the total assets possessed by the accused-Appellant came to Rs. 76,309.55. Thus it is argued that the accused Appellant was in possession of property and pecuniary resources amounting to Rs. 59,865.03 which were disproportionate to his known source of income. On the basis of such facts Mr. Padhi forcefully submitted that the learned Special Judge has dealt with all the materials and it is a fit case where the order of conviction and sentence should be upheld. 7. Heard learned Counsel for the parties at length. Perused the materials available on record. In order to appreciate the conclusions arrived at by the trial Court This Court went through the evidence, both oral and documentary. The learned Special Judge has not only taken pain to calculate the known sources of income of the accused-Appellant, but also has taken pain to calculate the average expenditure which the accused-Appellant might have met during the check period. After calculating the entire amounts and deducting the expenditure from the income and taking into consideration the assets acquired by the Appellant the learned Special Judge has rightly come to the conclusion that the assets to a tune of Rs. 59,865.03 remained unexplained. Mr. Mishra though submitted that the family of the Appellant possessed landed properties and also a Haller and the income from the said sources had not been taken into consideration, it appears that no evidence, either oral or documentary, was adduced before the Court below to prove what was the income derived from the family landed properties and what was the share of the accused-Appellant out of the said income. In the absence of such materials the learned Special Judge has rightly proceeded to calculate the income and expenditure taking into consideration the evidence, both oral and documentary. 8. After going through the entire evidence This Court finds no error in the impugned order apparent on the face of the record. In the absence of such materials the learned Special Judge has rightly proceeded to calculate the income and expenditure taking into consideration the evidence, both oral and documentary. 8. After going through the entire evidence This Court finds no error in the impugned order apparent on the face of the record. The conclusions arrived at are just and proper. The prosecution had successfully proved its case beyond all reasonable doubts. This Court is therefore not inclined to interfere with the order of conviction. However as stated earlier the incident was of the year 1982-83 and the check period was from 16.2.1961 to 28.2.1977. More than thirty one years have passed in the meanwhile. That apart it appears that the accused-Appellant was suffering from Cancer and has undergone an operation of vocal chord at Appolo Cancer Hospital. An affidavit to that effect enclosing relevant documents has been filed before This Court. The accused-Appellant might have undergone lots of mental tension and agony for all these years as an order of conviction is hanging on his head. Taking into consideration all these facts and as the case is governed under pre amended Prevention of Corruption Act This Court feels that ends of justice and equity will be better served if the conviction is maintained but then the sentence is modified. Accordingly This Court sets aside the sentence of imprisonment passed against the Appellant and enhances the fine of Rs. 2000/- to Rs. 3,000/-, in default to undergo S.I. for five months and directs accordingly. With the aforesaid modification in sentence the Criminal Appeal is dismissed. Final Result : Dismissed