Judgment Prashant Kumar, J: Cr. Appeal 1393 of 2008 has been filed against the judgment of conviction and order of sentence dated 2.12.2008 passed by Special Judge ( Vigilance), Ranchi in Special Case No. 10 of 1990 corresponding to Patna Sadar ( Vig) Case No. 20 of 1990, whereby appellant was convicted under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 and sentenced to under go R.I. for three years and also directed to pay fine of Rs. 10,000/-and in default further undergo simple imprisonment for 14 days. Cr. Appeal No. 212 of 2010 has been filed against the order dated 11.1.2010 passed by Special Judge, ( Vigilance) Ranchi in Special Case No. 10 of 1990, whereby the learned court below confiscated the cash, documents and other articles details of which given in Annexure-1 to the petition dated 8.10.2009 and refused to release the same as prayed by the appellant. 2. Cr. Appeal No. 1393 of 2008 The case of prosecution in brief is that the informant obtained a search warrant from the court of Special Judge, Vigilance, Patna in connection with Patna(Vig) Case No. 18 of 1990 for search of the house of appellant situated at Hehal, Ranchi. It is further stated that the said search warrant was handed over to Sri S. Hembrom, Dy. Superintendent of Police ( Vig), Ranchi for execution. Accordingly, Sri Hembrom along with independent witness and other officers of Vigilance Bureau searched house of appellant on 26.5.1990. Thereafter three lockers of appellant opened and searched at Bank of India, Shyamli Branch, Ranchi, State Bank of India, Pandra Branch and Allahabad Bank, Main Road Branch, Ranchi respectively. It is further alleged that in course of search cash, ornaments, house hold furniture, motor car, motor cycle, documents showing investments in Unit Trust of India, different banks, Post office, NSS, NSC and documents showing purchase of lands, were recovered. The total of the aforesaid properties come to Rs. 1090432/-. It is also alleged that the son of appellant was a student at the time of search and a life insurance policy of Rs. 50,000/-was found in his name. Thus, it was presumed that premium of the said policy was also paid by the appellant. The total of the aforesaid properties come to Rs. 1090432/-. It is also alleged that the son of appellant was a student at the time of search and a life insurance policy of Rs. 50,000/-was found in his name. Thus, it was presumed that premium of the said policy was also paid by the appellant. It is then alleged that the value of the appellant's house at Hehal was about Rs. 10,00000/-. It is further stated that the informant had received information that appellant spent a handsome amount in marriage of his daughter and son. It is also stated that standard of living of appellant is very high. It is then alleged that the properties recovered from the house and bank lockers of appellant were beyond the known source of income of appellant. Hence, it is alleged that the appellant had committed an offence under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988. 3. It appears that on the basis of aforesaid written report Patna Viglance P.S. Case No. 20 of 1990 under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 registered and Investigating Officer ( hereinafter referred as I.O.) took up investigation. It then appears that on completion of investigation, charge sheet submitted against the appellant under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988. It then appears that learned Special Judge, took cognizance of the aforesaid offences. Thereafter the charges under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988. was framed. The record further reveals that prosecution examined altogether 12 witnesses. After the close of case of prosecution, appellant was examined under section 313 of the Cr.P.C,. in which his defence is of total denial. Appellant also examined 12 witnesses in his defence. 4. It appears that the learned court below after considering the materials available on record convicted and sentenced the appellants as stated above vide its judgment and order dated 2.12.2008, against that present appeal filed. in which his defence is of total denial. Appellant also examined 12 witnesses in his defence. 4. It appears that the learned court below after considering the materials available on record convicted and sentenced the appellants as stated above vide its judgment and order dated 2.12.2008, against that present appeal filed. 5. While assailing the impugned judgment, it is submitted by Sri B.P. Pandey, Sr. Advocate, learned counsel appearing for the appellant that for proving the charge under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988. it is essential for the prosecution to prove the known source of income of the accused. Thereafter prosecution is required to prove objectively that the property found in possession of the accused are disproportionate to his known source of income. It is submitted that none of the prosecution witnesses stated regarding the source of the income of appellant. It is further submitted that the value of the property seized from the house of appellant were fixed merely on assumption and presumption. The articles seized from the possession of appellant never sent to any expert for valuation. It is further submitted that the learned court below had considered the bail application of appellant for ascertaining his income from salary. It is submitted that said bail application neither proved by the prosecution nor by the defence, in spite of that the learned court below used it as a substantive evidence, which is wholly illegal. It is further submitted that though the learned court below considered said bail application for holding appellant guilty, but no question put to the appellant, while examining him under section 313 Cr.P.C., with regard to said bail application. Thus the entire judgment of the court below is liable to be vitiated. It is further submitted that the I.O. has not been examined in this case and due to non examination of I.O., serious prejudice had been caused to the appellant, as he had given explanation to the I.O. regarding his assets as ordered by Hon'ble Patna High court in Cr. W.J.C No. 360 of 1990. It is then submitted that due to non examination of I.O., appellant was not able to know, whether the I.O. verified the truthfulness of explanation given by him regarding his assets. W.J.C No. 360 of 1990. It is then submitted that due to non examination of I.O., appellant was not able to know, whether the I.O. verified the truthfulness of explanation given by him regarding his assets. Accordingly, it is submitted that in the instant case, non examination of I.O. is fatal to the case of prosecution. 6. On the other hand , Sri Nilesh Kumar, learned Additional P.P. submits that in view of the admission of the appellant in the ABA, it is not necessary for the prosecution to prove the gross salary received by the appellant during his entire service period. It is further submitted that the learned court below had explained all the circumstances to the appellants while examining him under section 313 of the Cr.P.C.. It is further submitted that other police officer had already appeared and they deposed regarding the facts of this case, thus no prejudice caused to the appellant. Accordingly, non examination of I.O. has no bearing on the case of prosecution. It is submitted that there is no illegality and/or irregularities in the impugned judgment which requires any interference by this Court. 7. Having heard the submission, I have gone through the record of the case. In the instant case, as noticed above, the appellant was charged under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 . It will be apposite to quote section 5(1)(e) of Prevention of Corruption Act, 1947 which reads as under:- 5. Criminal misconduct in discharge of official duty:- (1) A public servant is said to commit the offence of criminal misconduct (a)........... (b).......... (c)............ (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. Section 13(1)(e) of Prevention of Corruption Act, 1988 runs as follows:- 13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct;- (a)........ (b)........ (c )....... (d)........ Section 13(1)(e) of Prevention of Corruption Act, 1988 runs as follows:- 13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct;- (a)........ (b)........ (c )....... (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. The Hon'ble Supreme Court in M. Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad reported in (1992) 4 SCC 45 as held that “ to substantiate a charge under section 5(1)(e) of Prevention of Corruption Act, 1947 the prosecution must prove the following ingredients, namely, (I) the prosecution must establish that the accused is a public servant. (ii) The nature and extent of pecunary resources or property which were found in his possession (iii) It must be proved as to what were his known sources of income I.e. known to the prosecution and (iv) it must prove quite objectively that such resources or property found in possession of accused were disproportionate to his known source of income. Once the above ingredients are satisfactorily established , the offence of criminal misconduct under section 5(1)(e) is complete, unless the accused is able to account for such resources or property. In other words , only after prosecution has proved the required ingredients, the burden satisfactorily accounting for the possession of such resources or property shifts to the accused”. Keeping in view the aforesaid law laid down by their Lordships of Hon'ble Supreme Court, I am proceeding to consider the evidence of prosecution to see whether aforesaid ingredients were proved by it ? 8. In the instant case, as noticed above, prosecution examined altogether 12 witnesses. P.W. 1 Parsuram Singh is a seizure list witness, he has only proved his signature on the seizure list ( Ext.1). P.W. 2 Muneshwar Prasad Sinha is also a witness of seizure list, who proved his signature ( Ext. 1/1). 8. In the instant case, as noticed above, prosecution examined altogether 12 witnesses. P.W. 1 Parsuram Singh is a seizure list witness, he has only proved his signature on the seizure list ( Ext.1). P.W. 2 Muneshwar Prasad Sinha is also a witness of seizure list, who proved his signature ( Ext. 1/1). P.W. 3 Kumar Ajay Pratap was the Branch Manager of the Bank of India, Shyamli Branch at that relevant time, he only stated that on 29.5.1990 in his presence, locker of appellant was opened and searched by Vigilance Officers and from there Rs. 88980/-recovered and seized. He further deposed that said amount kept in suspense account of the bank. He also stated that some officers of vigilance department deposited Rs. 99058/-and Rs. 45000/-in the suspense account of the bank on 30.5.1990. P.W. 4 Md. Mansoor Alam and P.W. 5 Madhur Srivastava were accountant and Branch Manager respectively of the State Bank of India, Pandara Branch, Ranchi. They stated that on 30.5.1990 in their presence the bank locker of appellant was opened and from there Rs. 45,000/-seized. P.W. 7 Abhay Kumar was the Branch Manager of Allahabad Bank, Main Road Branch, Ranchi. He deposed that on 31.5.1990, in his presence, bank locker of appellant was opened and from the said locker Rs. 1,48910/-recovered. He further deposed that apart from said cash, some ornaments of gold, silver and five silver coins recovered and a seizure list prepared. P.W. 6, S. Hembrom, P.W. 8 Ramyash Singh, P.W. 9 Parmeshwar Das, P.W. 11 Bimlesh Prasad Sinha are officers of Vigilance Bureau who participated in the search of appellant's house situated at Hehal, Ranchi and also searched three bank lockers of appellant. P.W. 10 kameshwar Ram is a witness of search of appellant's house. P.W.6-A Brajmohan Lal was the officer incharge of Vigilance police station, Patna, who lodged FIR and handed over case to B.P. Singh Vikat Additional Superintendent of Police, Vigilance for investigation. 9. Thus from perusal of evidence of all the prosecution witnesses, I find that non of the witnesses stated about the income of appellant from his known sources of income. Thus, prosecution failed to establish the income of appellant from salary which he earn during his entire service period. The prosecution had also not adduced any evidence to show that the appellant has no other source of income. Thus, prosecution failed to establish the income of appellant from salary which he earn during his entire service period. The prosecution had also not adduced any evidence to show that the appellant has no other source of income. It is worth mentioning that the prosecution did not prove the method by which it fixed the value of properties seized from the house of appellant. It is not out of place to mention that P.W. 11, who is informant of this case had stated at paragraph no. 11 that he assess the price of house merely on assumption. P.W. 8, who is officer of the rank of Superintendent of Police and at the relevant time posted at Ranchi as Superintendent of Police, Vigilance, had stated at paragraph no. 10 and 11 of his deposition that for assessing the value of ornaments he called a goldsmith, however he admits that the said gold smith did not chemically examine the ornaments. He further states that he also could not say carat of the gold of which said ornaments prepared. At paragraph no. 3 this witness further states that he had no experience of assessing the value of articles seized from the house of appellant. It is relevant to mention that the said goldsmith was not examined and no explanation given for his non examination. Thus , extent of pecunary resources or property which were found from the possession of appellant has not been proved by adducing cogent evidence. 10. In the instant case, since the prosecution had not proved the income of appellant from known source of his income and also had not proved the exact price of properties seized from the possession of appellant, therefore, I find that prosecution failed to prove that the properties found from the possession of appellant were disproportionate to his known sources of income.Under the said circumstance, I find that the prosecution failed to prove three ingredients, i.e. ingredient nos. 2, 3 and 4, laid down by Hon'ble Supreme Court in M. Krishna Reddy Case ( supra). 11. It is worth mentioning that the appellant in his statement under section 313 Cr.P.C. stated that the ornaments and other house hold articles had been given to his wife as stridhan in the year 1942-43 during marriage, therefore, same cannot be treated as the income of appellant earned during his service period. 11. It is worth mentioning that the appellant in his statement under section 313 Cr.P.C. stated that the ornaments and other house hold articles had been given to his wife as stridhan in the year 1942-43 during marriage, therefore, same cannot be treated as the income of appellant earned during his service period. The aforesaid statement of appellant finds support from the evidence of P.W. 6, 7 and 8. P.W. 6 at paragraph no. 18 of his deposition had stated that all ornaments are old. This witness further stated at paragraph 19 that all seized articles are also old and used from before. P.W. 7 at paragraph no. 7 of his deposition had stated that all the ornaments are of old style and they also look old. P.W. 8 at paragraph no. 9 stated that the said ornaments are old. Thus, explanation of appellant that the said ornaments and articles seized from his house were acquired by his wife as Stridhan cannot be thrown over board, that too in absence of any evidence adduced by prosecution. 12. In the instant case, prosecution had not examined the I.O. Paragraph no. 54 of the case diary reveals that the appellant appeared before the Investigating Officer on 9.8.1990 and produced order dated 3.8.1990 passed by Hon'ble Patna High Court in Cr.W.J.C. No. 360 of 1990 and gave explanation regarding the assets found from his possession. Aforesaid paragraph of case diary further reveals that appellant stated before the I.O. that apart from income from salary, other sources of his income is rent from the house, receipt of money on the maturity of life insurance policy, interests from the bank account, income from agriculture land, money receipt as loan from provident fund account, money received as loan for construction of house and purchase of car. He also stated that just before some month of search of the house , he entered into an agreement for sale of his ancestral property and took advance from the vendee. It appears from the case diary that I.O. examined some persons to verify the truthfulness of the statement of appellant specially with regard to his income form agriculture property and earning of his wife from her parent. These facts were also stated by the appellant and defence witnesses. It has been held by their Lordship of Hon'ble Supreme Court in State Inspector of Police Vishakhaptnam Vs. These facts were also stated by the appellant and defence witnesses. It has been held by their Lordship of Hon'ble Supreme Court in State Inspector of Police Vishakhaptnam Vs. Surya Sankaramkarri reported in (2006)7 SCC 172 at para 19 that “ least that a court of law would expect from the prosecution is that the investigation would be the fair one. It would not only to carried out from the stand of prosecution but also the defence, particularly in view of the fact that the onus of proof may shift to the accused at a later stage”. Under the said circumstances non examination of I.O. in this case has certainly prejudice the defence, because due to his non examination materials collected during investigation, specially regarding the defence taken by appellant, had not been brought on record. 13. It is worth mentioning that learned court below had not accepted the defence of appellant that he also earns from agriculture by saying that appellant had not informed the same to the income tax authority. In this connection, it is stated that check period of present case is before coming into force of Prevention of Corruption Act, 1988. Thus, the old Act i.e. Prevention of Corruption Act, 1947 is applicable in this case. It has been held by this Court in Vishwanath Singh Vs. State of Jharkhand reported in (2011) 1 JLJR 255 , that under the old law, it is not imperative upon the public servant to inform his employer or any other authority regarding his income from any other lawful source. Under the old law, it is enough for the public servant to inform the Investigating Officer about the acquisition of income from other legal source and it is for the Investigating Officer to investigate the claim of public servant in that regard. As noticed above, in the instant case , appellant disclosed his income to the Investigating Officer from other lawful sources. Thus it is for Investigating Officer to investigate the case and verify the truthfulness of the statement made by the appellant and inform the court about it. Therefore, on this score also non examination of I.O. had prejudiced the appellant. Accordingly, I find that non examination of I.O. in this case is fatal to the case of prosecution. 14. Thus it is for Investigating Officer to investigate the case and verify the truthfulness of the statement made by the appellant and inform the court about it. Therefore, on this score also non examination of I.O. had prejudiced the appellant. Accordingly, I find that non examination of I.O. in this case is fatal to the case of prosecution. 14. From perusal of impugned judgment, I find that the learned court below taken into account statement made by the appellant in supplementary bail application dated 25.6.1990 regarding his income from salary during his service period i.e. from 1955 to 1988. It is worth mentioning that the said bail application has not been proved by prosecution nor it was brought on record by the defence. Under the said circumstance, I find that the learned court below relied upon a document which was not proved by either of the party. Thus, the same cannot be treated as an evidence. It is worth mentioning that the learned court below relied upon a judgment of the Hon'ble Delhi High Court reported in AIR 1984 Delhi 20 for using the aforesaid supplementary bail application. It appears that the said judgment was delivered by the Delhi High Court in a Civil proceeding. It is worth mentioning that degree of proof in civil case differs from the degree of proof in criminal case. In a civil case a fact can be proved by preponderance of probabilities, whereas in criminal case every fact is required to be proved, strictly beyond the shadow of all reasonable doubts. Thus the judgment of Hon'ble Delhi High Court, relied by the learned court below, has no application in criminal case. Even assuming for the sake of argument that the said bail application can be looked into by the trial court for convicting the appellant, then it was mandatory for the learned court below to give opportunity to the appellant to explain it while examining him under section 313 of the Cr.P.C. From the perusal of statement of appellant under section 313 Cr.P.C., I find that the learned court below had not asked any question seeking his explanation regarding statements made in the supplementary bail application dated 25.6.1990. This, in my view, is a great illegality, which the learned court below committed while passing the impugned judgment. 15. This, in my view, is a great illegality, which the learned court below committed while passing the impugned judgment. 15. In view of the discussions made above, I find serious illegality and irregularities in the impugned judgment of conviction and order of sentence. Thus, the same cannot be sustained in this appeal. 16. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. 17. Cr. Appeal No. 212 of 2010. It is submitted by Sri B.P. Pandey, Sr. Advocate appearing for the appellant that some cash and documents were seized from the possession of appellant, by officers of Vigilance department. It is further submitted that during the pendency of trial, some of the cash money released in favour of appellants wife and his brother. However, other cash amount and documents were still lying with the prosecution. It is submitted that for release of remaining cash amount and documents, an application filed in the court below on 8.10.2009 and in the said application, the details of cash amount and documents desired to be released were given at Annexure-1. It is submitted that the said cash amounts and documents, details of which given in Annexure-1, had not been exhibited in the case nor confiscated till the disposal of case in the court below, but the learned court below arbitrarily refused to release the same and confiscated aforesaid cash and documents after disposal of the case. Accordingly, it is submitted that the said order is illegal and cannot be sustained. 18. Sri Nilesh Kumar, however, submits that since the learned court below confiscated the said cash amount, therefore, question of releasingthem do not arise. 19. In view of the fact that I concluded that the conviction of appellant in the present case is illegal and I have already set aside the judgment of conviction and order of sentence, while deciding Cr. Appeal No. 1393 of 2008, the present appeal is also allowed and impugned order is set aside. The learned court below is directed to release the cash amount and documents, enumerated in Annexure-1 to the petition dated 8.10.2009, forthwith in favour of appellant.