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Chhattisgarh High Court · body

2011 DIGILAW 329 (CHH)

DURGA PRASAD SHARMA v. STATE OF C. G.

2011-10-11

PRITINKER DIWAKER

body2011
JUDGMENT 1. By this appeal the appellant has called in question the legality, validity, propriety and correctness of the judgment and order dated 30.04.2002 passed by Special Judge (PC Act.), Raipur, in Special Case No. 10/2000 convicting him under Section 13 (i) (e) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short the' Act of 1988') and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 5,000, in default of payment of fine to further undergo simple imprisonment for six months. 2. The facts of the case in nut shell are that at the relevant time the accused/appellant was working as Assistant Engineer in Water Resources Department and posted in the office of Chief Engineer, Mahanadi Pariyojna, Raipur. On 02.11.1995 upon receiving a secret information the Special Police Establishment, Office of Lokayukt, Branch Raipur conducted a raid in the residential premises of the appellant and during the course of the said raid, the officials of the Special Police Establishment prepared an inventory of the articles found in the residential premises of the appellant and certain documents pertaining to moveable and immoveable properties were also seized. 3. After completion of investigation and obtaining necessary sanction required under the Act, a charge-sheet was filed before the competent Court calculating the income and expenditure of the appellant taking the check period from 01.01.1981 to 02.11.1995. According to the case of the prosecution the total income of the appellant was assessed during the check period to a tune of Rs. 6,60,577 and the expenditure as assessed by the prosecution was to a tune of Rs. 17,78,337. In view of the income and expenditure, the Special Police Establishment has assessed the amount disproportionate to the known source of income of the appellant to the tune of Rs. 11, 14,847. After filing of the charge sheet, learned Special Judge framed charges against the appellant for the offence punishable u/s 13 (i) (e) read with 13 (2) of the Act of 1988 vide order dated 02. 11.2000. 4. So as to hold the accused/appellant guilty, prosecution has examined 19 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 3 I 3 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 11.2000. 4. So as to hold the accused/appellant guilty, prosecution has examined 19 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 3 I 3 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one M. S. Ghosh has also been examined by the defence in support of its case. 5. In support of its case the prosecution has exhibited and proved as many as 164 documents which have been marked as Exs. P-l to P-164 whereas the appellant in his defence has proved 11 documents which have been marked as Exs. 0-1 to 0-11. Apart from this, the appellant has also produced four bound registers containing the details pertaining to income tax return of the appellant himself, his wife and parents. From the record it appears that most of the documents have been admitted by the appellant on different dates under the provision of Section 294 of the Code of Criminal Procedure. The details of the documents so admitted by the appellant are as under : Date Documents 22.3.2001 P-3 to Ex. P-36 23.03.2001 Ex. P-37 to Ex. P-65 26.03.2001 Ex. P-66 28.03.2001 Ex. P-68 29.03.2001 Ex. P-71 & P-72 08.06.2001 Ex. P-85 to Ex. P-89 02.08.2001 Ex. P-105 to Ex. P-108 07.09.2001 Ex. P-115 to Ex. P-118 04.10.2001 Ex. P-121 6. While convicting the appellant vide judgment impugned learned Court below has come to the conclusion that during the check period income of the appellant was to the tune of Rs. 6,63,490 whereas the total expenditure for the aforesaid period comes to Rs. 11,61,240 and thus, according to the Court below the appellant was found in possession of the assets disproportionate to his known source of income to the tune of Rs. 4,97,750 and for this amount he has failed to prove his case. 7. Counsel for the appellant submits that the trial Court has not correctly calculated the income as well as the expenditure of the appellant. He submits that under various heads the appellant has proved his income but in an illegal manner the same has been completely ignored by the Court below and likewise an erroneous finding has been given in recording the expenditure of the appellant. He submits that income of the appellant under the following heads has no. He submits that under various heads the appellant has proved his income but in an illegal manner the same has been completely ignored by the Court below and likewise an erroneous finding has been given in recording the expenditure of the appellant. He submits that income of the appellant under the following heads has no. been assessed properly : 1. Salary prior to check period 7;282 2. Salary during the check period 4;22;285 3. STDR of Central Bank of India 10,404 4. Interest from Bank 1,155 5. Interest from Bank 852 6. STDR of SBI 13, 800 7. Withdrawal from GPF 1,20,000 8. Agriculture income 73,014' 9. Interest from Bank 1,726 10. Interest from Bank 2,041 11. Interest from Bank 8,213 12. Interest from Bank 739 13. Interest from Bank 97 14. Interest from Bank 4,825 15. Interest from Balik 1,426 Total 6,60,577 8. As regards income from salary prior to check period as well as during the check period, counsel for the appellant submits that the total income from the salary prior to and during the check period according to the case of the prosecution was Rs. 7,282 + 4,22,285 = 4,29,567. He submits that in the aforesaid figure, an amount of Rs. 13,474.60 is required to be added for the reason that at S.No.2 of the income chart, an amount of Rs. 4,22,285 has been shown as income from salary during the check period. According to him, the aforesaid figure is arithmetically incorrect and is a calculation mistake and the same comes to Rs. 4,23,538.30. Counsel for the appellant drew the attention of this Court to. the exhibited documents Ex. P-91 to P-98, Ex. P-I06 to P-108 and Ex. P110 to Ex. P-l14 and as such income from salary prior to and during the check period comes to Rs. 7,282 + Rs. 4,23,538 = 4,30,820.30. It is pointed out that apart from this, other additions which are required to be made in the income from salary are based on the deposition of PW -10 who in paragraph 02 has stated that on the basis of documents marked as Ex. 0-2 and Ex. 0-3, an amount of Rs. 4,727 has been calculated less in the salary details which have been marked as Ex. P-91 to Ex. P-98. Similarly, PW-13 in paragraph No.2 of his deposition has admitted the fact that amount of Rs. 0-2 and Ex. 0-3, an amount of Rs. 4,727 has been calculated less in the salary details which have been marked as Ex. P-91 to Ex. P-98. Similarly, PW-13 in paragraph No.2 of his deposition has admitted the fact that amount of Rs. 7,494.30 has been calculated less in the salary details marked as Ex. P-110 to Ex. P-114. Attention of this Court has been drawn to the statement of PW -13 which is an exhibited document marked as Ex. 0-4 and Ex. 0-5 and it has been submitted that amount of Rs. 4,727 and Rs. 7,494.30 is required to be added to the tune of Rs.4,30,820.30 and in view of the aforesaid facts, the total income of the appellant prior to and during the check period comes to Rs. 4,43,041.60 and thus an amount of Rs. 13,474.60 has been calculated less in the income chart Ex. P156. 9. Counsel for the appellant submits that there are certain incomes which have not been taken into consideration either by the Special Police Establishment or by the Court below, which are detailed as under: (i) Income from money back LIC policies. (ii) Income from sale of agriculture land. (iii) Income of the wife of the appellant. In respect of income shown in clause (i) i.e. income from money back. LIC policies, counsel for the appellant submits the appellant and his family members have received the amount from money back LIC policies to the tune of Rs.70,000 during the check period. Attention of this Court has been invited to the fact that the prosecution has taken three policies under the head of expenditure, meaning thereby that the policies were in existence. It is pointed out by the counsel for the appellant that amount of premium taken under the head of expenditure is on the higher side and as far as amount of Rs. 70,000 received by the appellant, his wife and daughter is concerned, the same has been explained by the appellant in his evidence and on the basis of documents available on record. Counsel for the appellant submits that on being put a question by the Court below, PW-2 has stated in paragraph No.6 of his deposition that the appellant received a total amount of Rs. 60,000 in three installments paid in the year 1990, 1995 and 2000 whereas his wife had received total amount of Rs. Counsel for the appellant submits that on being put a question by the Court below, PW-2 has stated in paragraph No.6 of his deposition that the appellant received a total amount of Rs. 60,000 in three installments paid in the year 1990, 1995 and 2000 whereas his wife had received total amount of Rs. 40,000 in two installments paid on 13.3.1995 and 8.3.2000 while his daughter namely Bhawna Sharma received Rs. 10,000 on 21.11.1994. According to the counsel for the appellant, all the aforesaid amounts have been received under the money back policies and from the deposition of PW-2 it is clear that the appellant against money back policy received an amount of Rs. 40,000 in two installments. Money received by him in the year 2000 has been excluded from the arena of income as the same has been received after the end of the check period. The wife of appellant received Rs. 20,000 while his daughter received Rs. 10,000 and under these circumstances income of Rs. 70,000 is required to be added under the head which has not been taken into consideration either by the prosecution or by the Court below. Learned counsel appearing for the appellant submits that the Court below has not discussed the issue in respect of income generated by the appellant, his wife and daughter by way of amount received under the money back policies. 10. In respect of income shown in clause (ii) i.e. income from sale of agriculture land, counsel for the appellant submits that the appellant has generated an income of Rs.94,000 as provided during the check period from sale If agriculture land. He submits that his wife had received an amount of Rs. 1,15,000 from the sale of agriculture land regarding which a sale deed was executed on 12.11.1991. He drew the attention of this Court to the order sheet dated 15.4.2001 to show that the' prosecution has admitted the document Ex. 0-11 which is the judgment passed by the Income Tax Appellate Tribunal, Nagpur Bench dated 5.2.1999. He submits that from perusal of paragraphs 49 to 51 of the said judgment it is clear that wife of the appellant had received a profit of Rs. 94,000 from the sale of agriculture land through sale deed dated 12.11.1991. 0-11 which is the judgment passed by the Income Tax Appellate Tribunal, Nagpur Bench dated 5.2.1999. He submits that from perusal of paragraphs 49 to 51 of the said judgment it is clear that wife of the appellant had received a profit of Rs. 94,000 from the sale of agriculture land through sale deed dated 12.11.1991. Counsel for the appellant submits that though the aforesaid sale deed has not been exhibited in the present case, same has been placed before the learned trial Court along with the register pertaining to Smt. Shashilata Sharma which finds place at page Nos. 213 to 216. He submits that the said sale deed has been registered in the office of Sub Registrar, Durg which being a public document can be looked into and relied upon though not exhibited. He submits that since the prosecution has admitted the judgment of the Income Tax Appellate Tribunal and the prosecution did not raise any objection in regard to the contention mentioned in the judgment, the profit received by the wife of the appellant through sale of agriculture land i.e. Rs. 94,000 is required to be added in the income part of the appellant. It has been pointed out that this amount of Rs. 94,000 through aforesaid sale of the land has also been disclosed by the assessee i.e. wife of the appellant in her income tax return for the assessment year 1992-93 which has been submitted by her in the month of September, 1993 much prior to the date of raid. He submits that the aforesaid documents i.e. income tax return and the sale deed executed on 12.11.1991 and duly registered in the office of Sub Registrar, Durg were much prior to the date of raid and therefore, it cannot be said that the same have been got prepared in anticipation of raid. He submits that in view of the aforesaid facts the amount of Rs. 94,000 is the income of the wife of the appellant from the known sources of income and is required to be added in income part. He submit that profit of Rs. 94,000 has been shown in the income tax return as well as judgment of the Income Tax Appellate Tribunal though the sale deed has been executed for an amount of Rs. 1,15,000 because Rs. 21,000 was spent towards purchase of the aforesaid agriculture land. 11. He submit that profit of Rs. 94,000 has been shown in the income tax return as well as judgment of the Income Tax Appellate Tribunal though the sale deed has been executed for an amount of Rs. 1,15,000 because Rs. 21,000 was spent towards purchase of the aforesaid agriculture land. 11. Counsel for the appellant further submits that income from sale of agriculture land pertains to the income of the wife of the appellant as her expenditures under certain heads have been taken into account by the prosecution such as premium towards the insurance and other items and therefore, the aforesaid income as profit from the sale of agriculture land to the tune of Rs.94,000 is required to be taken as an income of the appellant during the check period. He submits that Ex. 0-11 is an important piece of evidence which has been admitted under Section 294 of the Code of Criminal Procedure and this document is part of the order passed by Income Tax Appellate Tribunal, Nagpur. He further submits that the aforesaid order has been passed in appeal which was preferred by the appellant/assessee against the order passed by the Assessing Officer whereby certain proceedings were taken up pursuant to the search which was conducted by the officials of the Special Police Establishment. It is clear from the aforesaid order that four bound registers were produced before the Income Tax Appellate Tribunal and the same were taken into consideration while passing the appellate order by the Income Tax Appellate Tribunal. He submits that though the registers were not exhibited before the trial Court, same were part before the Income Tax Appellate Tribunal and also produced before the Income Tax Appellate Tribunal as well as before the Special Police Establishment as has been established in the evidence of DW-l namely M.S. Ghosh who has stated that the aforesaid documents were produced during the course of investigation. Copy of the said registers has been marked as Ex.D-9. 12. Learned counsel for the appellant thus substantiated his argument on the point that the income of the appellant is required to be escalated in the following manner: Rs. 13,474.60, Rs. 70,000 and Rs. 94,000. By adding the aforesaid amount, the income of the appellant is required to be enhanced by Rs. 1,77,474.60. 12. Learned counsel for the appellant thus substantiated his argument on the point that the income of the appellant is required to be escalated in the following manner: Rs. 13,474.60, Rs. 70,000 and Rs. 94,000. By adding the aforesaid amount, the income of the appellant is required to be enhanced by Rs. 1,77,474.60. It is argued by the counsel for the appellant that the trial Court has not considered the defence of the appellant in respect of expenditure. He drew the attention of this Court towards document of Ex. P-156 (Parishishth-H), according to which expenditure chart comes as under: 1. 60% expenditure (prior to check period) 4,369/- 2. 60% expenditure (during check period) 2,53,371/- 3. Premium of LIC policy 73,260/- 4. NSC 1,000/- 5. STDR 10,000/- 6. UTI 2,100/- 7. KVP 5,000 8. Premium of LIC policy 45,101/- 9. Premium of LIC policy 23,547/- 10. UTI 2,100/- 11. UTI 2,100/- 12. Purchase of agriculture land 44,615/- 13. Peerless General Finance (Policy) 4,800/- 14. Iron and Steel Co. Share 1,470/- 15. Donation to temple 10,401/- 16. Share (Reliance) 400/- 17. Shares of Zenith Company 6,750/- 18. Shares (Ass. Cement Co.) 500/- 19. Peerless Policy 5000/- 20. STOR 10,000/- 21. Shares (Gujrat Ltd.) 250/- 22. Cheque given to Shiva Bunder for purchase of flat 20,000/- 23. Shares 3,735/ 24. FOR 13,800/- 25. Flat (only on the basis of permission) 1,76,000/- 26. FOR 3000/- 27. Car Accessories 13,400/- 28. FOR 4,209/- 29. Agriculture Income 34,168/- 30. Balance in Bank A/c 13,389/- 31. Balance in Bank A/c 1,050/- 32. Balance in Bank A/c 20,045/- 33. Balance in Bank A/c 3,719/- 34. Balance in Bank A/c 1,148/- 35. Balance in Bank A/c 25,896/- 36. Balance in Bank A/c 22,126/- 37. Balance in Bank A/c 1,211/- 38. Rent of locker 250/- 39. Rent of locker 1,055/- 40. Rent of locker 670/- 41. Boundary wall of agriculture land 31,300/- 42. Gold ornaments 4,64,800/- 43. Silver ornaments 20,106/- 44. Rent of locker 6,630/- 45. Vehicles 1,68,915/- 46. Inventory 2,07,150/- 47. Cash 18,800/- Total 17,78,937/- 13. Counsel for the appellant submits that from the aforesaid chart, the trial Court has only excluded the expenditure of flat shown at S.No. 25 of the same which according to the Special Police Establishment was assessed to the tune of Rs. 1,76,000.00. The trial Court has also excluded an amount ofRs. Inventory 2,07,150/- 47. Cash 18,800/- Total 17,78,937/- 13. Counsel for the appellant submits that from the aforesaid chart, the trial Court has only excluded the expenditure of flat shown at S.No. 25 of the same which according to the Special Police Establishment was assessed to the tune of Rs. 1,76,000.00. The trial Court has also excluded an amount ofRs. 4,41,097.00 towards the expenditure incurred on the gold ornaments shown at S.No. 42 of the said expenditure chart. Thus according to the counsel for the appellant if the entire entries of the expenditure chart are added, they come to Rs. 17,78,987. It is submitted that the trial Court finally assessed the expenditure of the appellant to the tune of Rs. 11,61,240. He submits that the Court below has taken certain expenditures in excess which are as under: (i) 60% expenditure prior to check period and during check period. (ii) Expenditure incurred in the gold ornaments and silver ornaments. (iii) Premium towards LIC policies. (iv) Expenditure incurred in car accessories. (v) Rent of locker belonging to the mother. (vi) Expenditure incurred in the purchase of vehicle. (vii) Inclusion of house-hold articles forming part of inventory. 14. As regards first point regarding assessment of expenditure. counsel for the appellant submits that the trial Court has Erroneously accepted the version of the prosecution in respect of 60% expenditure towards house-hold. He submits that the expenditure of the appellant towards household has been assessed more by the prosecution because there is no method to take 60% of the salary as expenditure towards house-hold with the prosecuting agency. He submits that standard of living of the appellant and his family members was very simple and in any condition 60% of the salary was not spent towards house-hold. He submits that though the appellant is not having exact figure for expenditure, looking to his standard of living, articles found in the house etc. it can be said that at the most only 50% amount of total salary i.e. prior to the check period and also during the check period has been spent by the appellant, as no evidence in this regard has been adduced by the prosecution. Counsel for the appellant submits that the prosecution has not proved the basis of 60% expenditure towards the house-hold items. Counsel for the appellant submits that the prosecution has not proved the basis of 60% expenditure towards the house-hold items. Apart from this, according to the counsel For the appellant, the prosecution has also not alleged anything in respect of the living standard of the appellant and that being so the expenditure of the appellant towards house hold prior to and during the check period is required to be deducted by Rs.36,220 approximately. He further submits that though no challenge in respect of the aforesaid has been made by the appellant during the course of trial, looking to the surrounding circumstances as discussed above this defence can be considered and an amount of Rs. 36,220 can be deducted from the expenditure of 60% from household prior to and during the check period. He further submits that the aforesaid part of the defence has not been taken into consideration by the trial Court while passing the judgment impugned. In support of his argument, he placed reliance on the judgment of this Court in the matter of Krisl1lla Kumar Shukla Vs. Slate of Chhatlisgarh passed in Criminal Appeal No. 490/2002. on 30.3.20 I 0, and submits that the household expenditure .; required to be deducted as 50% of the total income from salary and not 60~" as taken by the prosecution. 15. As regards second point regarding expenditure incurred in gold and silver ornaments. it has been submitted by the counsel for the appellant that entire expenditure on this head is required to be deleted from the expenditure chart as the same falls within the purview of Stridhan. He further submits that the Court below in paragraph 24.1 of the impugned judgment has discussed the expenditure part of the appellant wherein it has been held that the total jewelries found in the house of the appellant are valued to a tune ofRs. 4,64,800. only. Further discussing the said issue the Court below has held that out of the value of total jewelries, the jewelries valuing to Rs. 4,41,097 were purchased or received through gift prior to and during the check period as per the documents available with the case and therefore the Court below has held that only Rs.23,703 is required to be taken towards the expenditure for purchase of jewelries. Counsel for the appellant submits that from Ex. 4,41,097 were purchased or received through gift prior to and during the check period as per the documents available with the case and therefore the Court below has held that only Rs.23,703 is required to be taken towards the expenditure for purchase of jewelries. Counsel for the appellant submits that from Ex. P-156 it is clear that the value of the total jewelries found in the house was Rs. 4,64,800 (for gold jewelry) and Rs. 20, I 06 (for silver jewelries). According to the counsel for the appellant, so far as the silver jewelries amounting to Rs. 20, 106 are concerned, the same belongs to the mother of the appellant which is clear from the document Ex.0-11 - the judgment of the Income Tax Appellate Tribunal. According to him, the said fact has been admitted by the prosecution during the course of trial under the provisions of Section 294 of the Code of Criminal Procedure. Counsel for the appellant submits that income of the mother of the appellant has not been accounted for while assessing the total income of the appellant and therefore, the expenditure incurred by the mother of the appellant towards purchase of silver ornaments is required to be deducted from the expenditure part of the appellant. Apart from this, counsel for the appellant submits that as per the settled position of law any person other than the wife cannot be the owner of Stridhan and the said question has been decided by the Apex Court in the matter of Pratibha Rani Vs. Suraj Kumar and another'. Counsel for the appellant thus submits that keeping in mind the aforesaid facts and also that since there is no material on record to prove that the jewelries were purchased by the appellant, the complete amount taken as expenditure towards purchase of jewelries is required to be deducted from the head of the appellant. Counsel for the appellant further submits that the appellant has proved all the aforesaid facts in his defence but the Court below has totally ignored the same. So as to prove the defence of Stridhan, counsel for the appellant placed reliance on the decision of M.P. High Court in the matter of Jagdish Laldas Badole Vs. State of MP'2. According to the counsel for the appellant, in view of the aforesaid facts, the expenditure towards purchase of jewelries i.e. Rs. 4,64,800 and Rs. So as to prove the defence of Stridhan, counsel for the appellant placed reliance on the decision of M.P. High Court in the matter of Jagdish Laldas Badole Vs. State of MP'2. According to the counsel for the appellant, in view of the aforesaid facts, the expenditure towards purchase of jewelries i.e. Rs. 4,64,800 and Rs. 20, I 06 are required to be deducted but the Court below has deducted only Rs. 4.41,097, towards Stridhan and therefore the rest of the amount i.e. Rs. 43,809 is also required to be deducted from the expenditure part of the appellant. 16. As regards third point i.e. premium towards LIC policies, it has been submitted by the counsel for the appellant that the prosecution as well as the Court below have taken the expenditure under this head as Rs. 73,260 (for the policy of the appellant), Rs. 45, I 0 I (for the policy of his wife) and Rs.23,547 (for the policy of his daughter) which' in fact is not correct if seen' in the light of the evidence on record. According to the counsel for the app~lIant, it is clear from the deposition ofPW-2 that the actual expenditure till the date of raid was only Rs. 69,930 (for the policy of the appellant), Rs. 38,658 (for the policy of his wife) and Rs. 23,547 (for the policy of his daughter) towards payment of premium. Thus according to the counsel for the appellant it is clear that an amount ofRs. 9,773 has been extra added in the total expenditure towards payment of premium of LIC policies and therefore the same is liable to be deducted from the expenditure part of the appellant. He submits that this defence of the appellant has not even been discussed by the Court below while passing the judgment impugned. 17. As regards fourth point i.e. expenditure incurred in car accessories, it has been submitted by the counsel for the appellant that the prosecution as well as the Court below have taken expenditure of purchase of car accessories which is to a tune of Rs. 13,400 under the head of the appellant despite the fact that the said amount was not spent by the appellant. He submits that the appellant has admitted two documents under Section 294 of the Code of Criminal Procedure which have been marked as Ex. P-88 and P-89. Ex. 13,400 under the head of the appellant despite the fact that the said amount was not spent by the appellant. He submits that the appellant has admitted two documents under Section 294 of the Code of Criminal Procedure which have been marked as Ex. P-88 and P-89. Ex. P-88 is the letter written by accountant of Hindustan Motors to the Superintendent of Police (Vigilance) and Ex. P-89 is the bill pe11aining to purchase of car accessories. According to him, these two documents go to show that the amount towards purchase of car accessories had been spent by the mother of the appellant namely Smt. Ram Pyari Sharma through an account payee cheque bearing number 53524. The document of Ex. P-88 also mentions that "we have not received any payment from Mr. Durga Prasad Sharma". The aforesaid document clearly goes to indicate that no money was spent by the appellant towards purchase of car accessories. He submits that the income of the mother of the appellant has not been accounted for while assessing the income of the appellant by the prosecution as well as by the Court below. Thus according to the counsel for the appellant the expenditure incurred by the mother of the appellant cannot be accounted for on the head of the appellant and as such amount of Rs.13,400 is required to be deducted from the expenditure part of the appellant is submitted that though there is ample evidence to prove the aforesaid fact, the Court below has not discussed the same while passing the judgment impugned. 18. As regards 5th point i.e. rent of locker belonging to the mother of the appellant, it is submitted by the counsel for the appellant that the prosecution as well as the Court below have taken the expenditure of Rs. 6,630 towards rent of locker on the head of the appellant though it does not belong either to the appellant or his wife which in fact was in the name of the mother of the appellant. According to the counsel for the appellant, PW-12 examined by the prosecution has stated in paragraph No.1 of his deposition has stated that the amount of rent had been deposited by the mother of the appellant namely Smt. Ram Pyari Sharma and in view of the aforesaid evidence an amount of Rs. 6,630 is required to be deducted from the expenditure part of the appellant. 6,630 is required to be deducted from the expenditure part of the appellant. He submits that income of the mother of the appellant has• not been taken into account by the prosecution as well as by the Court below and therefore, expenditure exclusively incurred by her cannot be taken on the head of the appellant. 19. As regards 6th point Le. expenditure incurred in purchase of vehicle, counsel for the appellant submits that the prosecution as well as the Court below have taken the expenditure towards purchase of fiat car to the tune of Rs. 1,50,000 and other charges to the tune of Rs. 3,795 and thereby a total sum of Rs. 1,53,795 has been taken as expenditure of the appellant. He further submits that the aforesaid expenditure is not correct because the said fiat car was a second hand one which was purchased by the appellant by paying Rs.30,000 as is clear from the deposition of PW-11 who in its paragraph No.1 has stated that the first owner of the vehicle was one S. Avtar Singh Dhillon and on 9.1.1987 it was transferred in the name of Shri Smt. Shashilata Sharmathe wife of the appellant. In paragraph No.7 of cross examination of PW19 a suggestion was put in respect of purchase price of the fiat car but the same has been denied by him. Counsel for the appellant submits that Ex. P-105 is the document which has been written by Engineering Administrative Officer (EAO), Mahanadi Pariyojna, Raipur to the Superintendent of Police, Special Police Establishment in which the details pertaining to the appellant have been provided. In reply to paragraph No.3, the Engineering Administrative Officer has informed to the S.P. Special Police Establishment, Raipur that the appellant vide letter No. 32/C/Est./G/M. GO. Ka.l87 has received the permission for purchase of a second hand car. According to the counsel for the appellant the aforesaid document has been admitted by the appellant during the course of trial. He submits that the said letter has not been exhibited in the case but the same is annexed with the register placed before the Court. The said letter is stated to be at page No.45 of the Register pertaining to the income tax returns of the appellant. He submits that the said letter has not been exhibited in the case but the same is annexed with the register placed before the Court. The said letter is stated to be at page No.45 of the Register pertaining to the income tax returns of the appellant. The said letter further goes to say that value of the car is only Rs.30,000 and after including the other charges the same comes to the tune of Rs.33,795. Counsel for the appellant submits that though the said letter has not been exhibited before the court below, it very much finds reference in EX.P-105 and thus, in view of the aforesaid fact the actual expenditure towards purchase of fiat car comes only to Rs.33,795 and not Rs.1 ,53,795 and that being so the excess amount of Rs.I ,20,000 is required to be deducted from the expenditure part of the appellant. Counsel for the appellant further submits that the appellant has given all plausible explanation to the investigating authority and also to the Court below in respect of the actual expenditure incurred in purchasing the car but the same has not been accepted. He submits that the document showing the actual value of fiat car was-given to the Investigating Officer during the course of investigation but the matter has not been investigated on the basis of information provided by him. He submits that the Court below has not discussed anything about the same in the judgment impugned. 20. As regards 7'h point i.e. inclusion of household expenditure forming part of inventory, counsel for the appellant submits that the prosecution as well as the trial Court have taken expenditure of Rs.2,07, 150 towards inventory which in fact is not correct. On the basis of the inventory prepared in the house of the appellant during the course of search the investigating officer has prepared final inventory which has been placed by him along with the charge-sheet. The said final inventory has not been exhibited by the prosecution but the expenditure of Rs.2,07,150 has been taken from the said final inventory. It is submitted that various household articles and articles belonging to the parents of th~ appellant are also included in the final inventory. It is submitted that generally the clothes etc. arc included in household expenditure which has been again separately taken by the prosecution in the final inventory. It is submitted that various household articles and articles belonging to the parents of th~ appellant are also included in the final inventory. It is submitted that generally the clothes etc. arc included in household expenditure which has been again separately taken by the prosecution in the final inventory. The details of the said articles are as follows: (a) Gadda, Takia, Razai : Rs. 1,200 (b) Jaipuri Razai: Rs. 800 (c) Gadda, Chadar, Takia : Rs. 3.000 (d) 44 Sarees, 20 Petticoats, 3 blouse, 3 woolen shawls, one dozen pears soaps, 6 books and useful cloths: Rs.7,000 (e) 70 Sarees: Rs. 21,000 Total Rs. 33,000. It is submitted that the aforesaid articles are already included in house hold expenditure: therefore, the same cannot be taken in inventory and that being so an amount of Rs. 33,000 is required to be deducted from the expenditure: part of the appellant. Similarly, counsel for the appellant submits that various m1icles belonging to the parents of the appellant are also included in the final Inventory. He submits that the document marked as Ex. D-ll clearly establishes the fact that various articles included in the final inventory belong to the parents of the appellant. Counsel for the appellant submits that the prosecution has admitted the document of Ex. D-11 under section 294 of the Code of Criminal Procedure and in this view of the matter an amount of Rs. 22,300 towards expenditure shown in the inventory is required to be deducted from the expenditure part of the appellant. Counsel for the appellant submits that as per the case of the prosecution itself the appellant was living in a joint family along with his parents in the house which was owned by the mother of the appellant and accordingly, the expenditure incurred by the parents of the appellant towards purchase of articles mentioned in the final inventory are required to be deducted from the expenditure part of the appellant. Thus, according to the counsel for the appellant, on the basis of the facts and evidence on record in respect of the inclusion of household articles forming inventory in the expenditure chart, it is apparent that an amount of Rs. 1,51,850 can only be taken into consideration as expenditure and not Rs. 2,07,150. 21. Thus, according to the counsel for the appellant, on the basis of the facts and evidence on record in respect of the inclusion of household articles forming inventory in the expenditure chart, it is apparent that an amount of Rs. 1,51,850 can only be taken into consideration as expenditure and not Rs. 2,07,150. 21. Counsel for the appellant submits that in view of the material available on record it becomes apparent that the following expenditures have been taken in excess i.e. household, Stridhan, LIC, Car accessories, locker rent and inventory. The chart showing the excess amount taken by the Special Police Establishment towards expenditure is given below: Household expenditure Rs. 36,220 Stridhan for gold ornaments Rs. 23,703 Stridhan for silver ornaments Rs. 20,106 LIC Rs. 09,773 Car accessories Rs. 1,20,000 Locker rent Rs. 6,630 Inventory Rs. 55,300 Total Rs. 2,85,132 Counsel for the appellant submits that now the following position is in existence: (a) Expenditure as taken by SPE : Rs. 17,78,337 (b) Expenditure as assessed by the Court below : Rs. 11,61,240 (c) Actual expenditure : Rs. 08,76, J 60 Thus according to counsel for the appellant, the situation which emerges in view of above is as under: (i) Income prior to and during the check period : Rs. 08,40,964 (ii) Expenditure prior to and during the check period : Rs. 08,76,108 (iii) D.A. now remains : Rs. 35,144 It is thus submitted by the counsel for the appellant that the remaining DA is less than 10% of the total income. According to him, in the case of Krishnanand Agnihotri Vs. State of Mp'3 it has been held by the Supreme Court that if the amount of disproportionate assets is less than 10% then weightage is required to be given to the same and no presumption can De attracted. He submits that in the present case, 10% of the total income comes to Rs. 84,096.40 and as the DA is less than the said amount, the appellant is not liable to be convicted. 22. Counsel for the appellant submits that income of the wife of the appellant as disclosed in the income tax returns has not been considered either by the prosecution or by the Court below. According to the counsel for the appellant, the wife of the appellant is a regular income tax assessee which is clear from the document marked as Ex. Counsel for the appellant submits that income of the wife of the appellant as disclosed in the income tax returns has not been considered either by the prosecution or by the Court below. According to the counsel for the appellant, the wife of the appellant is a regular income tax assessee which is clear from the document marked as Ex. 0-11 and remains undisputed even by the prosecution. Apart from the document of Ex. 0-11, the appellant has also produced one bound register pertaining to the income tax return of his wife along with the documents submitted with the income tax returns. Counsel for the appellant has furnished a chart regarding the income of the wife of the appellant as per the income tax returns which is as under: S.No Date of Assess- Item Taxable Total Income Submission ment Amount Income required Year to be added (I) (2) (3) (4) (5) (6) (7) 1. 1996-97 On 2nd Income from Tailoring 21,000.00 21,000.00 Nov. 1995 work , FDR Interest 940.00 Dividend Interest 3,118.00 3,118.00 Interest of pearless 420.00 420.00 Saving Bank Interest 1,068.00 26,546.00 Agricultural Income 42,000.00 42,000.00 Total 68,546.00 66,538.00 2. 1995-96 12th" Jan. Income from Tailoring 55,503.00 55,503.00 1996 work Interest of FDR 2,425.00 Interest of Indra 460.00 58,388.00 Mahila Nagrik Bank Agriculture Income 75,000.00 75,000.00 Total 1,33,388.00 1.30,503.00 3. 1994-95 23'rd Jan. Income from Tailoring 33,000.00 33,000.00 1995 work FOR Interest 2,647.00 Interest of dividend 3,076.00 3,076.00 Interest from Pragati 575.00 Patra Pearless Saving Bank Interest 3,194.00 42,492.00 Agriculture Income 72,000.00 72,000.00 Total 1,14,492.00 1,08,076.00 4. 1993-94 23rd Apr Total Income exclud- 41,620.00 41,620.00 41 ,620.00 1993 ing bank interest Net Agriculture 10,000.00 10,000.00 Total 51,620.00 51,620.00 5. 1992-93 30th June Total Income exclud- 36,870.00 36,870.00 36,870.00 1992 ing bank interest Profit from sale of 94,000.00 agriculture land Total 1,30,870.00 36,870.00 6. 1991-92 30th June Total Income exclud- 34,480.00 34,480.00 34,480.00 1991 ing bank interest Net agriculture 8,000.00 8,000.00 Total 42,840.00 42,840.00 7. 1990-91 30th June Total Income exclud- 19,540.00 19,540.00 19,540.00 1990 ing bank interest Net agriculture 10,000.00 10,000.00 Total 29,540.00 29,540.00 8. 1989-90 31st March Income from sales of 24,900.00 24,900.00 1989 share Bank interest 2,096.00 26,996.00 Net Agriculture Income 10,000.00 10,000.00 Total 36,996.00 34,900.00 9. 1988-89 20th June Total Income 17,670.00 17,670.00 17,670.00 1988 Agriculture Income 7,000.00 7,000.00 Total 24,670.00 24,670.00 10. 1987-88 10lh Sept. 1989-90 31st March Income from sales of 24,900.00 24,900.00 1989 share Bank interest 2,096.00 26,996.00 Net Agriculture Income 10,000.00 10,000.00 Total 36,996.00 34,900.00 9. 1988-89 20th June Total Income 17,670.00 17,670.00 17,670.00 1988 Agriculture Income 7,000.00 7,000.00 Total 24,670.00 24,670.00 10. 1987-88 10lh Sept. Total Income 18.170.00 18,170.00 18,170.00 1987 Agriculture Income 7.000.00 7,000.00 Total 25.170.00 25,170.00 11. 1986-87 4th Dec. Other Income 13,200.00 13,200.00 13,200.00 1986 12. 1985-86 4th Dec. Income 16,000.00 16,000.00 16,000.00 1986 13. 1984-85 4th Dec. Income 15,500.00 15,500.00 15,500.00 1986 14. 1983-84 4th Dec. Income 15,300.00 15,300.00 15,300.00 1986 15. 1982-83 4th Dec. Income 15,200.00 15,200.00 15,200.00 1986 16. 1981-82 4th Dec. Income 12,200.00 12,200.00 12,200.00 1986 17. 1980-81 4th Dec. Net Income 26,200.00 26,200.00 26,200.00 1986 Total 1,13,600.00 1,13.600.00 Grand Total 6,64,327.00 Counsel for the appellant further submits that the appellant has not added the income through interest of FOR and saving bank account as the same has already been taken into account by the prosecution as well as by the Court below. He submits that the total agriculture income of Rs. 73,014 only has been taken into account by the Special Police Establishment as well as by the Court below but in the grand total of the aforesaid chart the agriculture income is also included and that being so the appellant is deducting the agriculture income which is to the tune of Rs. 73, 014 as per prosecution from the grand total and then the actual income of the wife of the appellant comes to Rs. 5,91,313. Counsel for the appellant submits that while assessing the income of the wife of the appellant, the prosecution has taken the income only through one land situated at village Kapsada that too from 1992 to 1995. He submits that wife of the appellant has received 10 acres of agriculture land in village Dhanbuli at the time of her marriage in the year 1977 regarding which family settlement in the form of agreement has also been reduced to writing on 19.2.1990. According to the counsel for the appellant, from the said agriculture land, the wife of the appellant was continuously getting agricultural income till the date of raid and even thereafter. Counsel for the appellant submits that the prosecution has not assessed the said agricultural income. According to the counsel for the appellant, from the said agriculture land, the wife of the appellant was continuously getting agricultural income till the date of raid and even thereafter. Counsel for the appellant submits that the prosecution has not assessed the said agricultural income. According to him, so far a• the family settlement in the form of agreement is concerned, the same finds place at page No. 188 to 191 of the bound register pertaining to the wife of the appellant. Similarly, the wife of the appellant was in possession of 3.83 acres of agriculture land in village Sankara which remained with her right from 1983 till 1991 and through the said land she was continuously getting income. According to the counsel appearing for the appellant, the agricultural income through the aforesaid land has also not been assessed by the prosecution though information regarding the same was given by the appellant to the investigating officer during the course of investigation. He submits that the said agricultural land was subsequently sold and permission regarding the same was also obtained by the appellant from his department. He submits that the documents pertaining to the aforesaid fact were brought to the notice of the investigating officer during the course of investigation and also at the time of trial. He further submits that the said documents have also been produced before the Income Tax Authorities and the Income Tax Authorities have also accepted the same which subsequently was affirmed by the judgment of the Income Tax Appellate Tribunal (Ex. 0-11) which has been admitted by the prosecution during the course of trial. According to him, apart from the agricultural income, the wife of the appellant was also engaged in petty jobs through which she was getting income disclosed by her by filing income tax returns duly accepted by the Income Tax Appellate Tribunal, Bench at Nagpur in its judgment (Ex. 0-11) which has been admitted by the prosecution in totality under the provisions of section 294 of the Code of Criminal Procedure. 23. Counsel for the appellant submits that after deducting the interest income and the agricultural income which has been taken into account by the prosecution, the rest of the income of the wife of the appellant comes to Rs.5,91,313 which being through the known sources is required to be added in income part. 23. Counsel for the appellant submits that after deducting the interest income and the agricultural income which has been taken into account by the prosecution, the rest of the income of the wife of the appellant comes to Rs.5,91,313 which being through the known sources is required to be added in income part. He further submits that while assessing the expenditure of the appellant the prosecution has also taken the expenditure of his wife on the head of the appellant and therefore the income of the wife as shown in the income tax returns should also be taken into consideration. He submits that all the income tax returns have been filed much prior to the date of raid and therefore, it cannot be said that in any anticipation the same have been prepared. In support of his defence, counsel for the appellants has placed reliance on the decision of the Apex Court in the matter of State of M.P. Vs. Mohanlal Soni4 wherein while dealing with the Income Tax Returns it has been held :hat in the normal course the documents in question in that case could 110t have been prepared in anticipation that the respondent would have to :ace such charges on a future date. The documents being the orders of assessment or returns filed with the income tax authorities on their face value supported the case of the respondent. There was no bar to consider the material on record in the said case which was collected during the course of investigation and produced before the Court. According to the counsel for the appellant, the said decision wholly covers the case of the appellant so far as it relates to the income tax returns of the wife of the appellant. According to the counsel for the appellant, the wife of the appellant has submitted her income tax returns right from the year 1986-87 without any anticipation that in future her husband would be charged for any case. Similarly, according to him, the investigating officer of the present case was having all the knowledge about the income tax returns of wife pf the appellant and the appellant had also furnished the details of income tax during the course of investigation but no enquiry to this effect was made for the reasons best known to him. Similarly, according to him, the investigating officer of the present case was having all the knowledge about the income tax returns of wife pf the appellant and the appellant had also furnished the details of income tax during the course of investigation but no enquiry to this effect was made for the reasons best known to him. Counsel for the appellant submits that though the investigating officer in the present case i.e. PW -19 has denied the fact that he ever received any information from the appellant during the course of investigation yet his statement becomes completely false after perusing the documents which has been exhibited by D.W.1 who has clearly stated that the documents were sent by the appellant in the office of Special Police Establishment and receipt of the same was mentioned in the receipt register maintained by the office. He submits that in the decision of the Supreme Court in the matter of State of MP. Vs. Mohanlal Soni4 (supra) the income of the wife of the appellant as declared in the income tax returns is required to be taken into consideration in the present case. He submits that though the said income tax returns were not exhibited before the Court below during the course of trial, the same were very much produced before the Court below and the details of all the income tax returns have been dealt with by the Income Tax Appellate Tribunal in its judgment marked as Ex. 0-11 and the same has been admitted even by the prosecution. Thus according to the counsel for the appellant the total income of the wife of the appellant as shown in the income tax returns after deducting the interest income and agriculture income which has already been taken by the prosecution, the rest income which is to the tune of 5,91,313.00 is required to be added in the income part of the appellant. 24. While calculating the figures of income and expenditure of the appellant, it has been argued by the counsel for the appellant that earlier the appellant has stated his income to a tune of Rs. 8,40,964 and amount of Rs.5,91,313 is required to be added in this and if that is done, the total sum of the said amount comes to Rs. 14,32,277 whereas the final expenditure comes to Rs. 8,76, 108. 8,40,964 and amount of Rs.5,91,313 is required to be added in this and if that is done, the total sum of the said amount comes to Rs. 14,32,277 whereas the final expenditure comes to Rs. 8,76, 108. Thus according to the counsel for the appellant, the income of the appellant is in excess to the tune of Rs. 5,56,069. 25. In support of his argument, counsel for the appellant placed reliance on the decision of the Supreme Court in the matter of State Inspector of 'Police Vishakhapatnam Vs. Suryasankaram Karris, wherein it has been held by the Apex Court that the documents in possession of the public functionary who is under a statutory obligation to produce the same, are required to be produced before the Court of law and his failure to produce before the Court enables the Court to draw inference against such public functionary. According to him, in the present cases the public functionaries i.e. officials of the SPE more so the investigating officer, who was in possession of certain documents which were handed over to him did not produce the same before the competent Court of law during the course of trial. This fact, according to the counsel for the appellant, is borne out from the evidence of D.W.1 namely M.S. Ghosh who was functioning as Assistant Grade III in the office of Lokayukt, Raipur. According to him, the said witness has clearly established that a closed packet was handed over to him on 8.6.2000 in a cover of cloth which was duly received by him and entries in that regard were also made by him in the receipt and dispatch register extract of which is marked as Ex. D-9. Counsel for the appellant submits that the date on which the said packet was handed over to D.W.1 is prior to the filing of the charge sheet which was filed on 30.6.2000. According to the counsel for the appellant, said M.S. Ghosh (DW-l) has stated in paragraph No.4 of his deposition that the appellant submitted the documents pertaining to income tax on 8.6.2000 itself and thus it is clear that various documents including the documents pertaining to income tax and also the order passed by the Income Tax Appellate Tribunal were submitted to the authority concerned but the same have not been taken into consideration. On the contrary, the entire documents submitted by the appellant have been suppressed by the investigating authority. Counsel for the appellant submits that it was the duty of the investigating officer to have examined the important witnesses and considered the relevant documentary evidence. He submits that material facts and submission of the documents and the order of Income Tax Appellate Tribunal have been suppressed by the investigating officer and that has not cared to ascertain the correctness of the status of the appellant and his wife before the Income Tax Authorities. 26. Replying to the arguments advanced by the counsel for the appellant, it has been submitted by the counsel appearing for the State that it is not disputed that the salary of the appellant prior to and during check period has not been correctly calculated by the prosecution and the Court as well. He admits that under this head Rs. 13,474.60 is required to be added. He also admits that amount of Rs. 70,000 is required to be added towards LIC policies. Amount of Rs. 94,000 towards the income from agriculture land based on sale deed dated 12.11.1991 is disputed by the State counsel saying that the order of the Income Tax Appellate Tribunal dated 5.2.1999 cannot be looked into by this Court as the same has not been exhibited and most importantly this document was submitted at appellate stage. State counsel however has not been able to meet out the argument raised on behalf of the appellant with respect to expenditure under various heads. However, during the course of argument, following issues have been raised by him: (i) Whether the order passed by the Income Tax Appellate Tribunal, Nagpur Bench Ex. D-11 has a bearing in the present case or not? (ii) Whether a document admitted under Section 294 of the Code of Criminal Procedure can be read as a whole or not? (Hi) Whether the investigating authorities were required to investigate in pursuance to the documents submitted by the appellant on 8.6.2000? 27. Heard counsel for the parties and perused the material available on record. 28. As regards first point i.e. income part of the appellant through salary prior to and during the check period, this Court finds sufficient force in the argument of the counsel for the appellant that an amount of Rs. 27. Heard counsel for the parties and perused the material available on record. 28. As regards first point i.e. income part of the appellant through salary prior to and during the check period, this Court finds sufficient force in the argument of the counsel for the appellant that an amount of Rs. 13,474.60 is required to be added because there appears to be a clerical mistake in putting the figure 4,22,285 which in fact comes to Rs. 4,23,538.30 as is clear from the documents of Ex. P-91 to P-98 and Ex. P-106 to P-I08. This calculation mistake has also been admitted by the counsel for the State. As regards second point in relation to income from money back policies, from the documents available on record it is apparent that the appellant and his family members had received an amount of Rs. 70,000 during the check period. Prosecution has taken three policies under the head of expenditure which shows that the policies were in existence. PW-2 was put a question by the Court below who in paragraph 6 has stated that the appellant received the total amount of Rs. 60,000 in three installments paid in the years 1990, 1995 and 2000 whereas wife of the appellant received the total amount of Rs. 40,000 in two installments paid on 13.3.1995 and 8.3.2000 while daughter of the appellant namely Bhavna Sharma received Rs.l 0,000 on 21.11.1994. It is thus clear that all the aforesaid amounts have been received under the money back policies. From the deposition of PW-2 it is also apparent that the appellant received Rs. 40,000 against the money back policy in two installments and the amount received in the year 2000 has been excluded from the arena of income as the same was received after the end of check period. Likewise, wife of the appellant received Rs. 20,000 while daughter received Rs. 10,000 and thus income of Rs. 70,000 is required to be added under the head of income Jut the same has not been taken into consideration either by the prosecution or by the Court below. As regards the next point i.e. income from sale of agriculture land, in the order sheet dated 15.4.2001 the prosecution has admitted that document of Ex. D-l1 which is the judgment of Income Tax Appellate Tribunal, Nagpur Bench dated 5.2.1999. As regards the next point i.e. income from sale of agriculture land, in the order sheet dated 15.4.2001 the prosecution has admitted that document of Ex. D-l1 which is the judgment of Income Tax Appellate Tribunal, Nagpur Bench dated 5.2.1999. In paragraphs 49 to 51 of the said judgment a categorical finding has been given that wife of the appellant received the profit of Rs.94,000 from sale of agriculture land through sale deed dated 12.11.1991. Though this sale deed dated 12.11.1991 has not been exhibited in the present case, same was placed before the Court below along with the registers pertaining to the wife of the appellant. Further it is important to mention here that this sale deed has been duly registered in the office of Sub Registrar, Durg and is a public document and therefore it can always be looked into. Another important feature of the case is that prosecution has admitted the judgment of the Income Tax Appellate Tribunal and has not raised any objection with regard to the contents mentioned therein and thus in these peculiar circumstances it can safely be said that wife of the appellant had received a profit of Rs. 94,000 through sale of agriculture land and this amount is required to be added in the income part of the appellant. This Court finds sufficient force in the argument of the appellant that profit of Rs. 94,000 through the aforesaid sale deed was disclosed by the assessee i.e. wife of the appellant in her income tax returns for the assessment year 1992-93 which was submitted by her in the month of September, 1993 i.e. much prior to the date of raid i.e. 2.11.1995 and it can safely be presumed that nobody would submit the income tax returns in anticipation of any raid etc. Thus the amount of Rs. 13,464.60 + 70,000 +94,000 = 1,77,474.60 is required to be added in the income part of the appellant i.e. Rs. 6,63,490. So far as the expenditure part of the appellant is concerned, the first point to be considered is that 60% of the household expenditure prior to and during the check period is on the higher side. This Court finds place in the argument of the appellant that Rs. 36,220 is required to be deducted towards the household expenditure prior to and during the check period. This Court finds place in the argument of the appellant that Rs. 36,220 is required to be deducted towards the household expenditure prior to and during the check period. The total household expenditure, in the opinion of this Court, should be taken as 50% as has been taken by the prosecution. From the record, it is apparent that no challenge whatsoever has been made to the above at the time of trial by the appellant and therefore, merely on the basis of surrounding circumstances or standard of living of the appellant and his family members Rs. 36,220 can be deducted from the expenditure of 60%. Next point to be considered is expenditure incurred on gold and silver ornaments. Entire expenditure on this head is required to be deleted from the expenditure chart as the same falls within the purview of Stridhan. The Court below in paragraph 24.1 of the judgment impugned has considered the expenditure part of the appellant and held that the jewelries found in his house are valued at Rs. 4,64,800 only. The Court below has further held that out of the value of total jewelries, the Jewelries valuing at Rs. 4, 41,097 were purchased or received through gift prior to check period as per the documents available with the case and therefore the Court below has held that only Rs. 23,703 is required to be taken as expenditure for purchase of jewelries. From document of Ex. P-156 it is clear that value of the total gold jewelries found in the house of the appellant was Rs. 4,84,800 and of silver jewelries Rs. 20,106. It also appears that the silver jewelries amounting to Rs. 20, I 06 belongs to the mother of the appellant which is evident from document of Ex. D-II whiCh is the judgment of the Income Tax Appellate Tribunal duly admitted by the prosecution during trial under Section 294 of the Code of Criminal Procedure. In fact, the income of the mother of the appellant has not been accounted for assessing the total income of the appellant and therefore, the expenditure incurred by her towards purchase of silver ornaments is required to be deducted from the expenditure chart of the appellant. Further in view of the decision I of Supreme Court in the matter of Pratibha Rani Vs. Surqj Kumar and another! Further in view of the decision I of Supreme Court in the matter of Pratibha Rani Vs. Surqj Kumar and another! (supra) it is the settled position of law that any person other than wife cannot be the owner of Stridhan. There is no evidence on record to show that the jewelries were purchased by the appellant and thus the total amount taken as expenditure towards purchase of jewelries is required to be deducted from the head of the appellant. This position of law has been further approbated in the case of Jagdish Laldas Badole Vs. State of Mp'2 (supra). Thus it is apparent that expenditure towards purchase of jewelries i.e. Rs. 4,64,800 and Rs. 20, 106 is required to be deducted and the Court below has deducted only Rs. 4,41,097 towards Stridhan and therefore rest of the amount i.e. 43,809 is also required to be deducted from the expenditure part of the appellant. Next point to be considered is in respect of premium towards LIC policies. Prosecution as well as the Court below have taken the expenditure towards payment of LlC premium as Rs. 73,260 (for the policy of the appellant), Rs, 45,101 (for wife) and Rs. 23,547 (for daughter) but this appears to be incorrect from the evidence available on record. From the deposition of PW -2 it is clear that actual expenditure till the date of raid was only Rs. 69,930 (for the policy of the appellant), Rs. 38,658 (of wife) and Rs. 23,547 (of daughter) towards payment of premium. In view of aforesaid, it is clear that Rs. 9,773 has been extra added in the total expenditure towards payment of premium of LIC policies and therefore this amount is also to be deducted from the expenditure part of the appellant. Unfortunately, this point has not even been discussed by the Court in its judgment impugned. Next point is expenditure incurred in car accessories. Prosecution as we I as the Court below have taken expenditure on this head to the tune of Rs. 13,400 despite the fact that the aforesaid amount was not spent by the appellant. Record shows that the appellant has admitted two documents under Section 294 of the Code of Criminal Procedure which have bctl1 marked as Ex. P88 which is the letter written by Accountant. Hindustan Motors and Ex P-89 which is the bill for purchasing the car accessories. 13,400 despite the fact that the aforesaid amount was not spent by the appellant. Record shows that the appellant has admitted two documents under Section 294 of the Code of Criminal Procedure which have bctl1 marked as Ex. P88 which is the letter written by Accountant. Hindustan Motors and Ex P-89 which is the bill for purchasing the car accessories. Record also shows that this amount for purchasing the car accessories was paid by the mother of the appellant through account payee cheque. Document of Ex. P-88 further reveals that no payment whatsoever was received from the appellant and thus it is apparent that no amount was spent by the appellant towards purchase of car accessories and thus the expenditure incurred by the mother of the appellant cannot be accounted for under the head of the appellant and therefore, an amount of Rs. 13,400 is required to be deducted from the expenditure part of the appellant. Similar is the position with locker rent belonging to the mother of the appellant. Prosecution as well as the Court below have taken expenditure of Rs. 6,630 towards rent of locker on the head of the appellant whereas the said locker is in the name of his mother namely Smt. Ram Pyari Sharma. PW12 in paragraph 1 of his deposition has stated that amount of rent has been deposited by Smt. Ram Pyari Sharma. There is no contrary evidence on record to show that rent for locker was deposited by the appellant, rather it shows that it was deposited by the mother of the appellant. Thus amount ofRs. 6,630 is required to be deducted from the expenditure part of the appellant. Another important aspect of the case is expenditure towards purchase of vehicle. Prosecution as well as the Court below have taken the expenditure towards purchase of fiat car as Rs. 1,50,000 and other charges as 3,795 and thereby the total sum of Rs. 1,53,795 has been taken as expenditure of the appellant. Evidence reflects that this car was a second hand one which was purchased by the appellant by paying Rs. 30,000. This has come in the evidence ofPW-11 who in paragraph I has deposed t:iat first owner of the vehicle was one Avtar Singh Dhillon and on 9.1.1987 it was transferred in the name of wife of the appellant. Evidence reflects that this car was a second hand one which was purchased by the appellant by paying Rs. 30,000. This has come in the evidence ofPW-11 who in paragraph I has deposed t:iat first owner of the vehicle was one Avtar Singh Dhillon and on 9.1.1987 it was transferred in the name of wife of the appellant. In cross examination, a suggestion was put in respect of purchase price of the fiat car but the same has been denied by him. Document of Ex. P-I05 has been written by EAO, Mahanadi Pariyojna, Raipur to the S.P. Special Police Establishment in which details have been provided and in reply to paragraph 3, the EAO has informed the S.P. that appellant vide letter No. 32/C/Est./G/M.O.Ka./87 had received the permission for purchase of a second hand car and this document has been admitted by the appellant during the course of trial. The said letter is at page No. 45 of the register pertaining to income' tax returns of the appellant. Thus it appears that value of the car is only Rs. 30,000 and after including other charges it comes to Rs. 33,795. Though the aforesaid letter has not been exhibited by the Court below, reference has been made at Ex. 105. Furthermore, this Court finds sufficient force in the argument of the appellant that in the year 1997, price of new fiat car was I not Rs. 1,50,000 as has been assessed by the prosecution and believed by the I Court below. Thus it can be said that excess amount of Rs. 1,20,000 is required to be deducted from the expenditure part of the appellant. Upt0rtullatcly, it appears that this point has not been investigated by the investigating officer I and no discussion made about the same by the Court below. Yet another point to be considered is inclusion of household expenditure forming part of inventory. Prosecution as well as the Court below have taken the expenditure of Rs. 2,07, ISO towards inventory which in fact is not correct. Though the inventory has not been exhibited by the prosecution, the expenditure of Rs. 2,07,150 has been taken from the said final inventory. This Court finds force in the argument of the counsel for the appellant that certain household articles belonging to the parents of the appellant have also been included in the inventory. Generaily, the clothes etc. Though the inventory has not been exhibited by the prosecution, the expenditure of Rs. 2,07,150 has been taken from the said final inventory. This Court finds force in the argument of the counsel for the appellant that certain household articles belonging to the parents of the appellant have also been included in the inventory. Generaily, the clothes etc. are included in household expenditure but in the case in hand the same have been again taken by the prosecution in the final inventory. As the articles like Gadda, Takia, Rajai etc. are already included in the household expenditure, the same cannot be taken in inventory and as such an amount of Rs. 33,000 is required to be deducted from the expenditure part of the appellant. Further, reliance of the appellant is on Ex.D-11 appears to be justified where various articles belonging to the parents of the appellant have also been included in the inventory. It is the case of the prosecution itself that the appellant was living in a joint family along with his parents in the house which was owned by the mother of the appellant. In view of this, the expenditure incurred by the appellant's parents towards purchase of articles mentioned in the final inventory is required to be deducted from the expenditure part of the appellant. Thus an amount of Rs. 1,51,850 only can betaken into consideration and not Rs. 2,07,150. After considering the expenditure part, this Court is of the considered view that following expenditures have been taken in excess: Household expenditure Rs. 36,220 Stridhan for gold ornaments Rs. 23,703 Stridhan for silver ornaments Rs. 20,106 LIC Rs.09,773 Car accessories Rs.l,20,000 Locker rent Rs. 6,630 Inventory Rs. 55,300 Total Rs. 2,85,132 Now the position is that disproportionate asset is less than 10% of the total' income and in view of the judgment of the Supreme Court in the matter of Krishnanand Agnihotri Vs. State of Mp3 (supra) where it has been held that if the amount of disproportionate assets is less than 10%, then weightage is required to be given to the same and no presumption can be attracted. In the case in hand, now the 10% of the total income comes to Rs. 84,096.40 and disproportionate asset being less than the said amount, it can safely be held that the appellant was not in possession of the property disproportionate i to his known source of income. In the case in hand, now the 10% of the total income comes to Rs. 84,096.40 and disproportionate asset being less than the said amount, it can safely be held that the appellant was not in possession of the property disproportionate i to his known source of income. 29. Having thus analyzed the entire factual scenario, this Court has no hesitation to note that neither the prosecution nor the Court below has been able to prove the fact that the appellant was in possession of the assets disproportionate to his known source of income prior to and during the check period. Though there is evidence on record to the effect that certain expenditures such as purchase of ornaments, payment towards rent of locker and that for the car accessories do not at all pertain to the appellant yet adopting an erroneous approach the Court below has taken the same on the expenditure part of the appellant. Evidence speaks volumes that the expenditures on these heads were borne by the mother of the appellant but the prosecution as well as the Court below have wrongly accounted for the same on the head of the appellant. Similar is the situation with expenditure incurred on gold and silver ornaments. Full her more, though it is settled position of law that none other than the wife can be the owner of Sfridhan yet the Court below has again taken a wrong approach in including the price thereof in the expenditure part of the appellant ignoring the fact that there is not even an iota of evidence that the same were ever purchased by the appellant. Following the same erroneous method with respect to the income and expenditure on the part of the appellant prior to and during the check period, the Court below has persisted in illegality and irregularity while working out the mismatch between the two i.e. income and the expenditure, and thereby holding the appellant guilty of amassing the wealth disproportionate to his known source of income. The findings recorded by the Court below do not appear to be based on the material available on record and that being so the conviction of the appellant under this special provision does not hold ground. 30. In conclusion, the appeal is allowed. Judgment impugned is hereby set aside. Appellant is acquitted of the charge levelled against him. The findings recorded by the Court below do not appear to be based on the material available on record and that being so the conviction of the appellant under this special provision does not hold ground. 30. In conclusion, the appeal is allowed. Judgment impugned is hereby set aside. Appellant is acquitted of the charge levelled against him. As he is already on bail, bail bonds furnished by him stand discharged. Appeal Allowed.