JUDGMENT G.D. Saxena, J. 1. The present appeal is preferred by the appellant-original accused (hereinafter referred to as 'the appellant') under Section 374 of the Code of Criminal Procedure, 1973, challenging the legality and validity of the judgment and order of conviction and sentence dated 19th October, 2005, passed by the learned Special Judge, in Special Case No. 21/2002, whereby at the end of trial, the appellant came to be convicted for the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and was asked to undergo sentence of rigorous imprisonment for one year for the offence proved and also to pay a fine of Rs. 5000/- and in default to make payment of fine, he is directed to undergo simple imprisonment for two months. The brief facts leading to filing of the present appeal in nutshell are as under: On 22nd December 1971, the appellant joined Government service on the post of Agriculture Assistant in the department of State of Madhya Pradesh. During the year from 1985 to 1990, he was promoted as Sub Divisional Officer and posted in Kailaras, district Shivpuri and then from 1990 to 1993 as Assistant Land Conservative Officer and posted in Isagarh, district Guna. Subsequently, he was posted at Gwalior. It is stated that thereafter the appellant worked at different places holding the post of Public Servant. During the period he served as Public Servant, it was alleged that the appellant acquired the assets disproportionate to known sources of his income for which he had no plausible explanation. On receiving such complaint against him, the enquiry was conducted and thereafter, F.I.R. was lodged and crime was registered. On completion of the investigation and obtaining necessary sanction, a charge-sheet came to be filed by the police against the present appellant in the Special Court for the aforesaid charges punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. The appellant pleaded not guilty to the aforesaid charges and, therefore, the prosecution led the evidence to establish the case against the appellant. The appellant pleaded not guilty to the aforesaid charges and, therefore, the prosecution led the evidence to establish the case against the appellant. After recording of oral as well as documentary evidence, the learned trial Judge has recorded the findings of conclusion that in check period from 1st January 1984 to 2nd September 1997 when the accused was posted as Sub Divisional Agricultural Officer at Kailaras, district Shivpuri and subsequently as Assistant Land Conservative Officer, Gwalior, he by all known valid sources earned Rs. 11,07,510/- and on evidence the expenditure, investment and movable and immovable properties were found worth Rs. 23,17,930/-. Thus, the appellant was found to have acquired disproportionate assets from his known sources of income which is worked out to Rs. 2,82,423/- for which he could not satisfactorily account for. After finding so, the learned trial Judge came to the aforesaid conclusion of guilt, against which the present appeal is directed. 2. Learned counsel appearing for the appellant has taken us through the impugned judgment under challenge in this appeal and shown the grounds for challenging as mentioned in Paras 1 to 16 of the memo of the appeal. The first submission of the learned counsel is that the trial judge had wrongly calculated and estimated the income from known sources and expenditure and further wrongly calculated the value of the disproportionate property. It is submitted that the trial Judge wrongly concluded that the accused/appellant had dis-proportionate property worth Rs. 2,82,423/- more than his saving from known sources of income for which he had no plausible explanation and while holding so committed an error in not counting the registration-cum-stamp duty borne in purchasing the house situated at City Centre Gwalior. The income from agriculture is also determined on lower side. It is submitted by the counsel that if both the aforesaid issues are decided in correct way, the excess property from known sources of the accused/appellant will be explained and in that case no case of dis-proportionate property would appear. So, according to the learned counsel there is no convincing evidence for establishing the alleged charges against the accused and therefore it would not be, either legal or proper to rely on the evidence of the prosecution. On these premised arguments, it is prayed that by allowing the appeal, the accused may be acquitted of the alleged offence. 3. So, according to the learned counsel there is no convincing evidence for establishing the alleged charges against the accused and therefore it would not be, either legal or proper to rely on the evidence of the prosecution. On these premised arguments, it is prayed that by allowing the appeal, the accused may be acquitted of the alleged offence. 3. As against that learned Special Public Prosecutor, supporting the conclusion as to the conviction of the appellant by the trial Court, submitted that there is nothing in the evidence of the prosecution to disbelieve it. According to the learned Special Public Prosecutor, the prosecution has established beyond reasonable doubt the alleged charges against the accused that being a Public Servant, he earned by all known sources Rs. 11,07,510/- in check period from 1st January 1984 to 2nd September 1997 during which he acquired the immovable properties like agriculture lands, residential houses and movables like cash, gold, furniture, vehicles, household properties etc. He also spent money in education and marriages of the children. Thus, the total expenditure as proved on the basis of cogent evidence adduced by the accused is Rs. 23,17,930/- but the total expenditure with total assets of the accused as he acquired during the check period has exceeded the sum for which the accused had no plausible explanation. It is submitted that though the appellant attempted to pose himself as honest, bright and strict officer, but in view of the natural evidence led by the prosecution, such explanation should not be treated as reasonable or probable explanation which can be said to be sufficient for the purposes of rebuttal of the presumption raised under Section 20 of the Act. Learned counsel submitted that this rebutting of presumption if is considered in the totality of the evidence the conduct of the appellant, the appeal must fail and the judgment and order of conviction and sentence should be upheld. Accordingly, it is prayed that by confirming the judgment, the appeal may be dismissed. 4. Heard Shri V.K. Saxena, learned Sr. counsel for the appellant and Shri J.D. Suryavanshi, learned Special Public Prosecutor, appearing on behalf of the respondent-State. Both have taken us through the oral as well as documentary evidence led during the course of trial and have made detailed submissions. 5. 4. Heard Shri V.K. Saxena, learned Sr. counsel for the appellant and Shri J.D. Suryavanshi, learned Special Public Prosecutor, appearing on behalf of the respondent-State. Both have taken us through the oral as well as documentary evidence led during the course of trial and have made detailed submissions. 5. To appreciate the rival contentions, this court shall have to determine the question, that is one of the main questions posed before this Court whether the accused/appellant, after serving the years from 1972 till check period is capable to invest the property valued at Rs 2,82,423/- or the assets secured by him are treated to be disproportionate assets for being used to link the appellant with the alleged crime. 6. Firstly, it would be proper to reproduce the law as contained in Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988:-- 13. 6. Firstly, it would be proper to reproduce the law as contained in Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988:-- 13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; (d) if he,-- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (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. 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. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. 7. In Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402 , at page 416: the Hon. Apex court while considering the issue in relation to the disproportionate property observed as follows:-- 44. No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to account for such excess. The offence becomes complete on the failure of the public servant to account for or explain such excess. The High Court has found that the appellant was in possession of the assets amounting to Rs. 18,25,098.69 for which he could not account. 48. In view of the above, at the most a sum of Rs. 2,71,613.69 remained unexplained. The appellant entered into service in 1972 and there is no break-up so far as assets and expenditures, etc. are concerned in the charge-sheet though the check period covered both the Acts i.e. the PC Acts, 1947 or 1988. Even if the said amount is spread over the period from 1987 to 1996, the alleged unexplained income remains merely a marginal/paltry sum which any government employee can save every year. 8. For the disposal of this appeal it would be sufficient if we examine the correctness of the findings as regards the value of the disproportionate assets, the appellant is found to have been in possession. The learned trial court on the basis of the evidence led before it, found the value of the disproportionate assets at Rs. 2,82,423/-. On perusal of the judgment, the income of accused from known sources as proved are mentioned as follows:-- (a) Income before check period (From 22nd December 1972 to 31st December 1984) (b) Income and salary pertaining to check period:-- 9. 2,82,423/-. On perusal of the judgment, the income of accused from known sources as proved are mentioned as follows:-- (a) Income before check period (From 22nd December 1972 to 31st December 1984) (b) Income and salary pertaining to check period:-- 9. Now, the invested assets and expenditure of accused prior to check period, as proved by prosecution and admitted by the accused are as follows:-- 10. The learned trial judge while appreciating the evidence of the properties as appeared from the evidence on record also considered the aspect of the matter that some amount may be spent by the other members of the family including the possible depreciation of the properties and thereafter concluded that the properties valued at Rs. 2,89,000/- was excess disproportionate property for which the accused had no plausible explanation. As argued by the learned counsel for accused/appellant, on going through the item of income in check period, namely, (g) Loan advance received for purchasing House No. C-18 Govind Puri from Cent Bank finance for Rs. 1,50,000/- and item of invested assets and expenditure of accused in check period as proved, namely, (vii) Purchase amount of Plot spent and part of the amount received as loan amount from Cant Bank Finance company = Rs. 2,68,290/- (excluding the stamp duty of Rs. 57,055/- payable on registered sale deed), it clearly appears that the property i.e. House No. C-18 at Govindpuri, Gwalior was purchased by the accused/appellant against sale price of Rs. 3,01,500/- and out of that sale price, the accused applied for loan of Rs. 1,50,000/- from Cent Bank Finance Company and rest amount of Rs. 1,50,000 and expenses as Rs. 57,055/- and Registration Charges as Rs. 3545/-, total 57,055+3545=Rs. 60,600/- were paid by the accused. Thus, the accused paid total amount of sale and expenses as Rs. 1,50,000/- from loan and rest Rs. 1,50,000/- and expenses Rs. 60,600/-, total Rs. 2,10,600/- for purchase of the above property were also paid by him. Thereafter during check period, the accused also deposited Rs. 61,235/- by way of monthly installment with the financer. Thus, the total amount for purchase of House No. C-18 situated at Govindpuri, Gwalior and the payment of installment of loan on calculation comes to Rs. 4,21,835/- (Rs. 3,00,000 + Rs. 60,600 + Rs. Thereafter during check period, the accused also deposited Rs. 61,235/- by way of monthly installment with the financer. Thus, the total amount for purchase of House No. C-18 situated at Govindpuri, Gwalior and the payment of installment of loan on calculation comes to Rs. 4,21,835/- (Rs. 3,00,000 + Rs. 60,600 + Rs. 61,235) but it appears that while making the mathematical calculations by the learned trial Judge, the amount was wrongly calculated which makes the total amount of Rs. 3,86,580/- (Rs. 2,68,290+ Rs. 57,055+ Rs. 61,235). The difference thus is worked out to Rs. 35,258/-. Further more in para 63 of the impugned judgment, the amount incurred towards purchasing the House No. C-18 was twice added, which makes the total as Rs. 5,32,500/-. As a matter of fact, after deducting the said sum from Rs. 5,32,500/-, which obviously was twice added by the learned trial Judge, the amount comes to Rs. 2,31,000/-. After adding the difference amount of Rs. 35,258/-, as indicated above, the amount which was not in dispute now comes to Rs. 11,65,005/- instead of Rs. 11,29,747/-. In this sum after adding Rs. 2,31,000/-, the amount comes to Rs. 13,96,005/-, which after deduction from the amount of Rs. 12,54,386/-, towards known sources of income, it comes to Rs. 1,41,619/-. In such circumstance, the total amount in this regard of disproportionate property from known sources of income shall be Rs. 1,41,619/-. After giving benefit of 10% against the amount of proved known sources of income, the value of the disproportionate assets eventually reduces to Rs. 16181/-. Therefore, on examining the case there appears to be an error in the judgment of the trial court in arriving at this disproportionate assets. In the opinion of this court, the appellant has satisfactorily accounted the alleged disproportionate assets. Hence, in view of the aforesaid discussions, in our opinion, the prosecution in the instant case, cannot be said to have successfully fixed the criminality on the accused under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. The approach of the learned trial court is therefore patently illegal. In view of aforesaid reasons, observations and discussions, the present appeal is hereby allowed. The judgment and order of conviction and sentence dated 19th October, 2005, passed by the learned Special Judge, in Special Case No. 21/2002, is hereby set aside. The approach of the learned trial court is therefore patently illegal. In view of aforesaid reasons, observations and discussions, the present appeal is hereby allowed. The judgment and order of conviction and sentence dated 19th October, 2005, passed by the learned Special Judge, in Special Case No. 21/2002, is hereby set aside. The appellant/accused is hereby ordered to be acquitted from all the charges levelled against him in respect of the offence in question. The amount of fine, if any paid, be refunded to the appellant-accused on proper identification.