JUDGMENT : J.P. DAS, J. 1. The appellant being convicted in T.R.Case No.1 of 2014 (T.R. 50 of 2011) under Section 13 (2) read with Section 13 (1)(e) of Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for 30 (thirty) months and to pay a fine of Rs. 2,00,000/- (two lakhs), in default, to undergo further rigorous imprisonment for one year in the judgment and order dated 21.12.2015 passed by the learned Special Judge, Special Court, Bhubaneswar has assailed the said judgment in the present appeal. 2. Prosecution case was that while the appellant was working as Deputy General Manager (Mining), Orissa Mining Corporation, Bhubaneswar, the Vigilance Department getting some information regarding accumulation of disproportionate assets by the accused-appellant conducted simultaneous search and raid in respect of the residential house, office, parental house and the house in occupation of the brothers of the appellant on 12.06.2007 on the strength of search warrant obtained from the learned Special C.J.M, Bhubaneswar. Pursuant to the materials and documents recovered in course of search, F.I.R was drawn up by the then Inspector, Vigilance Squad, Khurda on 22.12.2008 and Vigilance P.S. Case No. 50 of 2008 was registered under Section 13(2) read with Section (1)(e) of the Prevention of Corruption Act (in short, "P.C.Act") against the accused and the investigation was taken up by the then Deputy Superintendent of Police, Vigilance, Bhubaneswar Division. The check period was taken from 01.01.1994 to 12.06.2007 for the purpose of investigation. In course of investigation, different witnesses were examined, relevant informations and documents were collected from different quarters and it was ultimately found out that the total income of the appellant during the check period was Rs. 30,16,708/- from all known sources and he has made expenditure of Rs. 22,39,810/-, thus left with a surplus of Rs. 7,97,384/-. But, he was found to have acquired assets worth of Rs. 22,19,324/- and hence, he was allegedly having disproportionate assets to the tune of Rs. 14,42,426/-. Accordingly, the charge sheet was placed against the accused appellant to face his trial in the court of law. 3. While denying the charge, the accused-appellant took the plea that the Investigating Agency has not taken into consideration all his income from different sources and has exaggerated the expenditure during the check period besides showing the value of the assets at an inflated rate by arbitrary computation. 4. 3. While denying the charge, the accused-appellant took the plea that the Investigating Agency has not taken into consideration all his income from different sources and has exaggerated the expenditure during the check period besides showing the value of the assets at an inflated rate by arbitrary computation. 4. In course of trial the prosecution examined fourteen witnesses as against two witnesses examined on behalf of the defence. Fifty documents were exhibited on behalf of the prosecution as against thirteen documents on behalf of the defence. 5. The learned trial court considering the oral as well as documentary evidence placed before it, made certain changes in the amounts of income, expenditure as well as of the assets and ultimately held that the accused was in possession of the disproportionate assets worth of Rs. 5,10,463/- for which the accused failed to account for satisfactorily. Accordingly, the accused-appellant was held guilty for the alleged offences and was awarded with the impugned conviction and sentence. 6. It has been submitted in the appeal that the learned trial court besides committing some arithmetical errors apparent on the face of the record, also did not take into consideration certain incomes of the appellant besides calculating expenditure and the cost of the assets in a wrongful manner. As against it, the learned counsel appearing for the State, Vigilance, supporting the impugned judgment would submit that all the material aspects as placed during trial, have been duly considered by the learned trial court and further the accused-appellant has also been given with some benefits by the learned trial court disagreeing with the amounts placed on behalf of the prosecution and that the contentions as raised presently in the appeal, are not tenable in law. Thus, it was submitted that the findings and conclusions reached by the learned trial court in the impugned judgment are not liable to be interfered with. 7. At the outset, it was submitted on behalf of the appellant that the learned trial court calculated the income of the appellant in Paragraph-6. 21 of the impugned judgment as Rs. 34,03,679/- but, in the conclusion in Paragraph-9 of the judgment, mentioned it to be Rs. 33,03,679/- which was an arithmetical error apparent on the face of the record whereby the income of the appellant was reduced by Rs. 1,00,000/-. This position was fairly conceded to by the learned counsel for the State Vigilance. 21 of the impugned judgment as Rs. 34,03,679/- but, in the conclusion in Paragraph-9 of the judgment, mentioned it to be Rs. 33,03,679/- which was an arithmetical error apparent on the face of the record whereby the income of the appellant was reduced by Rs. 1,00,000/-. This position was fairly conceded to by the learned counsel for the State Vigilance. Thus, it was submitted that even accepting the impugned judgment on its face value, the worth of disproportionate assets comes to Rs. 4,10,463/- which was mere 12% of the total income of the appellant during the check period. Referring to a decision of the Hon'ble Apex Court Reported in AIR 1977 SC 796 (Krishnanada v. State of Madhya Pradesh) it was submitted that disproportionate assets less than 10% of the total income is to be ignored and in the present case deducting the permissible 10% of the total income, the balance surplus remains only 2% of the income which is Rs. 70,300/- only. Hence, it was submitted that a lenient view may be taken since undisputedly the appellant had put in about twenty five years of unblemished service by the time the case was registered and investigation was taken up. 8. Per contra, it was submitted by the learned counsel for the State, Vigilance that the appellant being a public servant is liable to explain every rupee of his excess assets as against his income from all known sources. It was submitted that cases of corruption in public service never deserve any leniency and should be dealt with iron hands. 9. It has been submitted on behalf of the appellant that the aforesaid contention was merely for the sake of argument conceding the impugned judgment on its face value but it would be established that the learned trial court has ignored certain incomes of the appellant illegally and has used guess work to make certain assessments, which if considered in proper perspective, would reduce the worth of disproportionate assets to much less than permissible 10%. In this regard, learned counsel appearing on behalf of the appellant made submission on some specific points in respect of the income, expenditure and the value of assets in relation to findings reached by the learned trial court. Those need to be considered in detail. 10. In this regard, learned counsel appearing on behalf of the appellant made submission on some specific points in respect of the income, expenditure and the value of assets in relation to findings reached by the learned trial court. Those need to be considered in detail. 10. The first contention was advanced that the appellant obtained certain informations under the R.T.I. Act and produced before the trial court vide Exhibit-K series showing that he received certain amounts during the check period from the Oriental Bank of Commerce as the maturity value of different deposits made in the name of his wife, who was a house wife having no independent source of income. It was submitted that although the details thereof have been reflected in the impugned judgment in Paragraph-6.14 showing a total receipt Rs. 3,48, 907/- still the learned trial court has made an observation in the said paragraph that he was constrained to resort to a guess work to assess the net income from the said source at Rs. 1,00,000/- only. The learned trial court has observed that all the thirteen deposits excepting the one at Sl. No. 1 have been tagged with the year of opening of investment and maturity value have been received by the appellant in the year 2004. Out of thirteen deposits, Serial No. 1 has no year of deposit; Serial Nos. 2, 3 and 4 deposits were in the year 2000; Serial Nos. 5 to 11 were in the year 2003; Serial No. 12 was in the year 2004 and Serial No. 13 was in the year 2001. It was observed by the learned trial court that although the accused wanted to take the benefit of the said receipts, still he did not produce any material to show as to what was the amount he invested since all the investments were obviously within the check period. The argument advanced on behalf of the defence that it was the duty of the prosecution to find out the materials was held as untenable by the learned trial court with the observation that the accused could not be given with the benefit by placing half truth before the court. Thus, on a guess work, the learned trial court added an amount of Rs. 1,00,000/- to the income of the appellant from the aforesaid source. Thus, on a guess work, the learned trial court added an amount of Rs. 1,00,000/- to the income of the appellant from the aforesaid source. Of course, it was the duty of the appellant to justify the deposits by placing the amount invested so as to take the benefit of the net income, especially, when the materials were placed in course of trial but the accused-appellant had not done so. However, it is seen that the amount at Serial No. 1 was Rs. 91,053/- without showing the year of investment and all the rest receipts were within Rs. 20,000/- out of which three were in the year 2000, seven were in the year 2003. But, the amounts received at Serial Nos.12 and 13 were Rs. 45,420/- and Rs. 50,566/- showing the deposits to have been made in the year 2004 and 2001 respectively. Considering these positions, I feel since the learned trial court has used a guess work by giving benefit of Rs. 1,00,000/- to the appellant another Rs. 20,000/- can be added thereto on a fair concession considering the periods of deposit. 11. The next contention on behalf of the appellant was relating to the income obtained by him from agricultural sources. It is submitted that the appellant claimed an income of Rs. 1,31,949/- as agricultural income from his ancestral landed property of ten acres, out of which, the appellant had one third share. It was submitted that the Investigating Officer issued requisition and obtained specific information from the Assistant Director, Statistics vide Exhibit-26 as to the rate of yield and average sale price of the crops of the area of the landed property but, did not add anything to the income of the appellant from such source. It was further submitted that both the Investigating Officer as well as learned trial Court refused to accept the contention regarding such income of the appellant on the ground that the appellant did not show his such income in his income tax returns during the relevant period. It was submitted by the learned counsel for the appellant that it remained admitted by the Investigating Officer as well as on record that the appellant had one-third share in ten acres of landed property and the report of the Statistical Officer, showed the rate of yield and average sale price of the crops of the said area during the relevant period. The appellant also proved his property statement submitted to his authority vide Exhibits.22/3 and 22/4 submitted for the year 1994 and 2006 respectively mentioning that the appellant had derived income from ten acres of landed property, his share being limited to one-third of the total income therefrom. Of course, no specific amount of income was mentioned therein. It was submitted that the check period was from 1994-2006 and the appellant claimed only a meager amount of Rs. 1,31, 949/- as his income from agricultural sources during the period of twelve years. But, the learned trial court refused to accept the same on the solitary ground that the appellant had not shown such income in his Income Tax Returns. It was submitted that the income from agricultural resources is not taxable as per law, and hence, the appellant was not required to show it in his Income Tax Returns. The learned trial court has discussed this point and has observed that even though agricultural income is not taxable, still there is a column in the 'Tax Returns Form' to show the agricultural income, which the appellant did not show. Hence, the learned trial court has refused to take into consideration the said income of the appellant. However, the fact remains admitted that the appellant had one third share in ten acres of landed property and the statistical report vide Exhibit-26 showed sufficient rate of yield and the value of the crops. Thus, in my considered opinion in the given circumstances to ignore the entire income from the agricultural resources for the appellant would not be justified. Accordingly, in absence of specific calculation, a benefit of income of Rs. 1,00,000/- under the head of agricultural income can be given to the appellant. Thus, on the income side differing from the views taken by the learned trial court, I am inclined to give a benefit of Rs. 20,000/- towards the bank deposits and Rs. 1,00,000/- towards agricultural income. Thus, the total income during the check period of the appellant comes to Rs. 34,03,679/-(as held by the trial court) + Rs. 1,20,000/- = Rs. 35,23,679/-. 12. Now, coming to the expenditure side, it was submitted on behalf of the appellant that the learned trial court has accepted the expenditure of Rs. 1,59,250/- towards the rental expenditure incurred by the appellant for the house at Bhubaneswar wherein his family members were staying. 34,03,679/-(as held by the trial court) + Rs. 1,20,000/- = Rs. 35,23,679/-. 12. Now, coming to the expenditure side, it was submitted on behalf of the appellant that the learned trial court has accepted the expenditure of Rs. 1,59,250/- towards the rental expenditure incurred by the appellant for the house at Bhubaneswar wherein his family members were staying. This amount included rent and maintenance expenses to be paid to the society. It was submitted that P.W.8 the land-lady categorically admitted that she had not received any rent from the accused or his wife and it was the case of the appellant that the said house was taken on rent by his mother-in-law and she was staying in the house, where she also performed the marriage of her children. The learned trial court has discussed in detail the contentions made on behalf of the accused-appellant and taking into consideration the admitted facts that for different official correspondences and the admission of the children of the appellant, the said rented house was given as the mailing/correspondence address of the appellant, the learned trial court has refused to accept the argument advanced on behalf of the appellant that he was not paying the rent for the house. Going through the detailed discussions made by the learned trial court, I do not find any infirmity therein to take a different view. 13. Similarly, the appellant has challenged the expenditure of Rs. 52,000/- shown towards the telephone expenses incurred by him. It was submitted that the Investigating Officer obtained Exhibit-38 series from the telephone authorities regarding the said payment, but, the said document was not proved before the court according to law. It was submitted that the authenticity or the correctness of the contents of the said information vide Exhibit-38 was not proved by the Accounts Officer who prepared the same since he was not examined before the court. Further the P.W.12 who was examined on behalf of the prosecution to prove Exhibit-38 series, stated that he could not certify the correctness of the information written on Exhibit-38. It was not disputed that the telephone connection was given in the year 2001 in the name of the wife of the appellant and the amount of Rs. 1,12,378/- was shown to have been paid towards the telephone charges from the date of its installation till 17.08.2007. It was not disputed that the telephone connection was given in the year 2001 in the name of the wife of the appellant and the amount of Rs. 1,12,378/- was shown to have been paid towards the telephone charges from the date of its installation till 17.08.2007. Since the defence plea was accepted by the learned trial court that after the appellant joined at the Head Office in Bhubaneswar in the month of June, 2004, his telephone bills were borne by the Orissa Mining Corporation, the amount of Rs. 52,000/- including the initial deposit of Rs. 3000/- has been calculated as telephone expenses borne by the appellant. True, the Exhibit-38 was not proved by the author himself but, it being an official correspondence prepared in course of performance of official duty has been proved by another Officer of the said department and I find no cogent reason to disbelieve the information. Further the telephone connection having remained admitted, no material has been placed on behalf of the appellant to show as to what amount was actually paid by him. 14. The next contention was regarding the expenditure borne by the appellant towards education of his children. It was submitted that no credible evidence was placed nor any material witness was examined to prove such allegations of the prosecution regarding the educational expenses. The learned trial court has discussed in detail taking into account all the relevant materials in respect of this contention in Paragraph-7.15 to 7.23 and has also made certain deductions in respect of certain items, which it found unacceptable. Hence, I find absolutely no reason to take a different view from what has been taken regarding the expenditure under this head incurred by the appellant. 15. The next contention was regarding the assets acquired by the appellant during the relevant period. It was submitted by the learned counsel for the petitioner that the calculation of assets of the appellant based on an inventory list prepared by one Sridhar Samantaray who was shown as charge-sheeted witness no. 24. But, the said author of the list has not been examined by the prosecution and the inventory list has been proved as Exhibit-28 by P.W.5 who was an Assistant Engineer (Estimator) and was a witness to the inventory as well as a signatory therein. 24. But, the said author of the list has not been examined by the prosecution and the inventory list has been proved as Exhibit-28 by P.W.5 who was an Assistant Engineer (Estimator) and was a witness to the inventory as well as a signatory therein. Similar contentions were advanced citing certain case laws that in absence of examination of the author of the document, the contents of the document should not have been accepted by the learned trial court. The case laws as cited were also placed before the trial court and have been discussed in detail and the learned trial court on discussion of the position of law and the specific evidence of P.W.5 has accepted the inventory list to have been prepared on behalf of the prosecution. That apart, as mentioned in the impugned judgment, the accused-appellant in course of his examination under Section 313 Cr.P.C. has admitted the fact of search of his house and the inventory and the household articles, documents, cash, ornaments and vehicles etc. as enlisted in the Exhibits 28 and 29. The accused-appellant was also a signatory to the inventory list. After detailed discussion of the evidence placed on behalf of the prosecution and the contentions advanced on behalf of the defence, the learned trial court has deducted certain amounts towards the value of assets shown to have been acquired prior to the check period and accordingly has reached the conclusion that the value of the total assets possessed by the petitioner at the time of detection was Rs. 22,03,843/-. Some contentions were advanced by the learned counsel for the appellant regarding the value of the house on the submission that he had acquired a house at a cost of Rs. 12,00,000/- but the learned trial court has wrongly mentioned it to be Rs. 17,75,000/-. Prosecution has assessed the value of the house including addition and the renovation undertaken subsequent thereto as Rs. 15,61,520/- and the same has been accepted by the learned trial court. The learned trial court has discussed this contention of the appellant in detail and I find no persuading reason to take a different view. Other findings of the learned trial court have not been assailed. 16. Accordingly, in view of my above discussions and findings, it is seen that during the check period, the total income of the appellant is taken to be Rs. Other findings of the learned trial court have not been assailed. 16. Accordingly, in view of my above discussions and findings, it is seen that during the check period, the total income of the appellant is taken to be Rs. 35,23,679/- and the expenditure was Rs. 16,10,299/-, thus, leaving surplus of Rs. 19,13,380/-. The assets shown to have been acquired by the appellant was worth Rs. 22,03,843/-. Hence, he had a disproportionate assets of Rs. 2,90,463/- which is little more than 8% of his total income during the relevant period. As per the settled position of law, disproportionate assets of 10% or less of the total income can be ignored as per the decision of the Hon'ble Apex Court reported in 1977 (I) SCC 816 (Krishnananda v. State of Madhya Pradesh) which still holds good. That exonerates the accused from the charges of acquiring disproportionate assets to be taken cognizance of and to be punished. Obviously, the position of law based on the sound principle that calculations made and values assessed of the transactions and properties over a period of time can never be accurate. Possibilities of human errors in such assessments can never be ruled out. 17. In the result of my aforesaid findings, the appeal is allowed. The impugned judgment of conviction and sentence passed by the learned Special Judge, Special Court, Bhubaneswar in T.R. Case No. 1 of 2014 (T.R. 50 of 2011) is set aside and the accused-appellant being held not guilty of the offence punishable under Section 13 (2) read with Section 13 (1)(e) of Prevention of Corruption Act is set at liberty.