JUDGMENT 1. The accused has questioned the correctness o f the judgment dtd. 23/2/2011 in Spl. Case No .110/2001 on the file o f III Addl. District and Sessions Judge, Mysuru convicting him for the o ffence under Sec. 13(2) read with Sec. 13(1)(e) of the Prevention o f Corruption Act ('PC Act' for short) . 2. The events that led to prosecution of the accused are as below: The accused was working as Secretary of Mandal Panchayat, Byrapura, T.Narasipura Taluk, Mysuru when the raid was conducted on his house and o ffice on 29/12/1998 . He joined the service of the Government as Grama Sevak on 28 .08.1964 and worked in various capacities till his superannuation. The FIR was registered with the allegation that the accused had spent money and acquired assets to the extent of Rs.6,48,085.13 over and above his known source of income of Rs.14,65,528 .75..00 Ultimately after investigation, the investigating officer ('IO' for short) came up with the following figures . Total income of the accused from all known sources Rs.24,76,890 .09 Value o f movable and immovables Rs.23,03,272 .60 Total expenditure during check period Rs.13,64,760 .80 Total of assets and expenditure disproportionate to his known source o f income Rs.11,91,143 .31 3. The prosecution examined 14 witnesses and relied upon the documents as per Exs.P1 to P51. The accused also led defence evidence by examining 17 witnesses and producing 14 documents marked Exs.D1 to D14. 4. A fter assessing the evidence, the trial court arrived at a conclusion that Rs.10,94,580.00 was the total value of the assets found to be disproportionate to the known source of income o f the accused. Giving a margin o f 10%, it was held that the value o f the disproportionate assets could be taken as Rs.9 ,85,122.00. To come to this conclusion the trial court has accounted certain income which the IO left out and given deduction to certain amount which the IO had disallowed. 5. I have heard the arguments o f Sri C.R.Gopalaswamy, learned senior counsel for the appellant and Sri B .S.Prasad, learned counsel for the respondent-Lokayukta. 6. Sri Gopalaswamy while arguing mainly attacked the calculation made by the IO . He submitted the following points. i. The son o f the accused , namely, Balaraju was a Civil Engineer. He constructed a house on site No .741 at Bannimantapa, Mysuru. 6. Sri Gopalaswamy while arguing mainly attacked the calculation made by the IO . He submitted the following points. i. The son o f the accused , namely, Balaraju was a Civil Engineer. He constructed a house on site No .741 at Bannimantapa, Mysuru. As per prosecution, Rs.7,41,983.00 was the cost of construction. Because Balaraju supervised the construction work himself, 10% of the cost of construction should have been deducted and thereby the total cost of construction should have been taken as Rs.6,67,785.00 and Rs.74 ,198.00 being the 10% amount should have been added to the income o f the accused. ii. Balaraju obtained over-draft facility from the Bank as evidenced by Ex.P37 and P38. As on 28/12/1998, a sum of Rs.89 ,705.06 was due to be repaid to the Bank. The IO did not treat this sum a liability and credit it to the income of the accused. iii. The second son of the accused , namely, Dayanand was running a taxi. He purchased a car by borrowing a sum of Rs.1,50,000.00 from State Bank o f India, Mysuru and earned income of Rs.24,000.00 from taxi. Though the IO admitted the purchase o f taxi, income of Rs.24 ,000.00 was not considered. iv. Dayananda purchased landed property in Sy.No .88/1 of Hosahalli village for a sum o f Rs.61 ,000.00. Without any reason, the IO assessed the purchase value as Rs.1 ,05,000.00. Therefore Rs.44 ,000.00 was shown as excess expenditure. v. Accused had eucalyptus plantation in his land bearing Sy.No.82/2 measuring 5 acres 20 guntas . There were nearly 25000 to 30000 eucalyptus trees. The accused sold the trees for Rs.4 ,46 ,120.00, but the IO considered the income by sale o f trees as Rs.1 ,79,500.00. The accused had also sold the bark and the stems of the trees and received a sum of Rs.61,000.00. Difference o f Rs.1 ,86,600.00 was un justifiably left out from the income of the accused. vi. In Ex.P27 and P28, it is clearly mentioned that the house belonging to the accused consisted of ground , first and second floors. In the mahazar itself it is clearly written that the foreign students were tenants during check period . During preliminary inquiry, the IO considered the rental income as Rs.2 ,00,000.00 but did not include the same when he filed the final report. In the mahazar itself it is clearly written that the foreign students were tenants during check period . During preliminary inquiry, the IO considered the rental income as Rs.2 ,00,000.00 but did not include the same when he filed the final report. Therefore Rs.2,00,000.00 should be taken as the income o f the accused. vii. The son o f the accused, namely, N.T.Balaraju had obtained loan from Bank of India and as on 23.12 .1998, he was due to repay Rs.49 ,389.00. Though documents were produced before the IO, it was not considered and this sum should be added to the income o f the accused. viii. As per Ex.D10 , Balaraju sold a property for a sum of Rs.45,000.00 and this amount was not accounted . ix. The son of the accused namely, N.T .Dayananda earned an amount o f Rs.41,739.00 by sale o f vegetables at Coimbatore market. Though the receipts are available, this amount was left out only for the reason that in one of the receipts the name was wrongly spelt as N.T .Dayanandan. x. In relation to the bank account of the accused at State Bank of Mysuru, a sum of Rs.1,00,000.00 was taken as asset, but Rs.18 ,498.00 being the interest accrued on that sum was not considered as income. In fact, the IO admitted about the accrued interest in the cross examination. xi. Ex.P49 and P50 are the two RD accounts opened in the post office for Rs.48,000.00 each. These deposits earned a total interest of Rs.15 ,000.00. The IO took the deposits as assets, but left out to show the interest as income. xii. Ex.P15 shows a deposit of Rs.1 ,55,861.00 in a chit company called Vijaya Shilpi Chit. Dividend amount o f Rs.40,000.00 on this deposit was not treated as income. xiii. The IO has not properly accounted the value o f jewellery of the wife and the daughter-in-law of the accused . They were customary gifts given at the time of marriage and in this regard a sum o f Rs.1 ,19,859 .00 should have been held as income. 7. Therefore it was the argument o f Sri Gopalaswamy that if the IO had properly investigated, it was possible for him to come to conclusion that the accused had not amassed wealth disproportionate to known source of income. 7. Therefore it was the argument o f Sri Gopalaswamy that if the IO had properly investigated, it was possible for him to come to conclusion that the accused had not amassed wealth disproportionate to known source of income. Though the trial court has given certain credits and allowed deductions, yet its decision that there was a dif ference of Rs.9,85 ,122.00 is incorrect. There is no proper appreciation of evidence and therefore the appeal deserves to be allowed. He has placed reliance on two decisions of the Supreme Court, namely, ASHOK TSHERING BHUTIA vs STATE OF SIKKIM [2011 AIR SCW 1505] and VASANT RAO GUHE vs STATE OF MADHYA PRADESH [ AIR 2017 SC 3713 ]. 8. Sri B.S.Prasad argued that the impugned judgment very clearly shows that the trial court assessed the evidence thoroughly and there are no grounds to interfere with the well reasoned judgment. He submitted further that the entire plea set up by the accused lies within his special knowledge and therefore he should have proved the pleas taken by him in accordance with sec. 106 of Evidence Act. Every paise has been accounted. The IO did not have vengeance against the accused to file a false charge sheet. After the raid, the accused was asked to file a schedule o f his income and assets. Ex.P27 and P28 are the schedules filed by him . With reference to schedules, investigation was conducted in detail and the IO considered the explanations supported by documents while computing the final figures . With respect to sale of eucalyptus trees, the evidence of Tahsildar is that there were only 2500 trees and there was no evidence for 25000 to 30000 being available for sale. According to the accused, the eucalyptus trees were grown in the land bearing Sy.No .88/1, but the RTC produced was with respect to land in Sy.No .88/2. The sale of eucalyptus trees to Harihar Poly fibers alone is accounted. There is no proof for selling the bark and the stems of the trees. There is no proof for selling vegetables by the son of the accused , namely, Dayananda. The accused produced Xerox copies of the receipts, therefore they were not considered. In the receip ts the name is mentioned as Dayanandan, which does not pertain to son of the accused . There is no proof for selling vegetables by the son of the accused , namely, Dayananda. The accused produced Xerox copies of the receipts, therefore they were not considered. In the receip ts the name is mentioned as Dayanandan, which does not pertain to son of the accused . There is no proo f for running of a taxi by the son o f the accused and therefore a sum of Rs.24,000.00 was rightly disallowed. In this view there is no infirmity in the case of prosecution. Hence the appeal deserves to be dismissed. He placed reliance on the judgment of the Supreme Court in the case o f STATE THROUGH DEPUTY SUPERINTENDENT OF POLICE V. R.SOUNDIRARASU ETC. [CRL.A .NO .1452-1453/2022]. 9. I have considered the points of arguments and perused the entire evidence. The first aspect to be noted here is that the entire income o f the family must be computed. The prosecution case itself is that the family of the accused consisted of himself, wife, his two grown up sons, a daughter and a daughter-inlaw. The wife possessed agricultural lands in her name. The sons had independent income and the daughter-in-law invested money in a chit fund company. Therefore income of everyone in the family must be accounted. 10. The trial court has held that the method adopted by the IO to compute the income, expenditure and investment is correct except in respect of two or three items. The trial court has noted the following discrepancies in the computation made by the investigating officer and added certain sums to the income of the family. 10.1 The IO left out the dividends earned on the investments made by the sons o f the accused in chit fund companies . It is held by the trial court that the sons of the accused received dividend of Rs.3,575.00 each and Rs.2,600.00. The total of these dividends is Rs.9 ,725.00 (correct sum is Rs.9,750.00). The trial court has added this amount to the income o f the accused . Considering the evidence of PW.5 the trial court has held that the amount deposited with Mandovi Motors for purchase o f a car earned interest of Rs.1 ,347.00. The investigating o fficer did not consider this sum and the trial court has considered this sum and added it to the income of the accused . Considering the evidence of PW.5 the trial court has held that the amount deposited with Mandovi Motors for purchase o f a car earned interest of Rs.1 ,347.00. The investigating o fficer did not consider this sum and the trial court has considered this sum and added it to the income of the accused . Therefore it is the conclusion of the trial court that if the total o f these two sums Rs.9 ,725.00 and Rs.1 ,347.00 i.e., Rs.11,062.00 (correct sum is Rs.11,072.00) is added to the income, the entire income of the accused during check period would work out at Rs.24 ,87,952.00 as against Rs.24,76,890.00 computed by the investigating o fficer . 10.2 In order to arrive at above conclusion, the trial court has found that the investigating o fficer has correctly deducted 50% from the income of N.T .Balaraju towards his personal expenses and his contribution to the family was Rs.1 ,40,000.00. In the same way the trial court has found deduction of 50% from the income of Dayanand and his contribution of Rs.1 ,00,000.00 to the family to be correct. In regard to contention o f the accused that Rs.1 ,86,600.00 should not have been disallowed, it is held that the barks and the branches o f the eucalyptus trees are not used for any purpose and therefore the accused could not have sold them. Even there is no evidence for the sale of barks and the branches and therefore Rs.1 ,86,600.00 cannot be taken as income o f the accused. 10.3 The trial court is of the opinion that the IO has correctly disallowed to consider Rs.40,000.00 being the income from horticulture and Rs.1,59,903.00 from the agriculture. The claim of the accused to consider these two sums as his income has not been entertained. 10.4 In regard to the rental income, it is held that there is no proof that the accused received Rs.2 ,00,000.00 as rental income and therefore this is also not considered. Further the trial court has found that the IO has rightly computed the income o f the son and the daughter-in-law o f the accused by way of interest on the fixed deposit made in the post o ffice and has rightly disallowed to consider the overdraft amount and Rs.24,000.00 said to have been earned by the second son by running a taxi. The trial court has held that by the time the raid was conducted, the overdraft account was closed and that there is no proof for running a taxi, and his second son had other occupation. 10.5 So far as the expenditures are concerned , the trial court has not accepted the contention of the accused that he was not using LPG for cooking purpose and that he was actually using fire wood. It is observed that the residence of the accused is situated in a posh locality in Mysuru and it is impossible to expect that he would not have had LPG connection and thereby Rs.10 ,186.00 is held to be the expenditure to buy LPG gas cylinders . 11. On behalf o f the prosecution, PW11 is the main witness . He conducted investigation and filed charge sheet. His evidence discloses the computation of income , expenditure and assets of the accused. 12. The accused examined 17 witnesses including himself . DW1 is the son of the accused who has given evidence that after completing Diploma course in Civil Engineering in the year 1980 , he worked as Assistant Engineer in an establishment called 'H.S.Sheshagiri and Associates' till the year 1993 and received total remuneration of Rs.40,000.00. He has also stated that he undertook contract of construction of houses of some people and earned commission of 8 to 10%. He also supervised the construction work and some miscellaneous work and earned Rs.40,000.00. In the year 1991-1992 first and second floors of their house was constructed under his supervision. He was also doing business in textiles and borrowed money from Bank of Baroda. He has stated that he used to give earnings to his father and mother. 13. DW2 is another son o f the accused and his evidence is that he was an agent for LIC and for Small Scale Savings and earned commission of Rs.4 ,33,000.00. He was also running a taxi and earned Rs.24,000.00. He purchased a car for the purpose of taxi by borrowing money from State Bank of Mysuru. His further evidence is that he purchased 5 acres of land from Jayamma for a sum of Rs.61 ,000.00. He was doing agriculture. There were 25,000 to 30,000 eucalyptus trees in 5 acres o f land. In the year 1990- 1991, the trees were sold to Harihar Poly fiber Company and received Rs.1,61 ,000.00. His further evidence is that he purchased 5 acres of land from Jayamma for a sum of Rs.61 ,000.00. He was doing agriculture. There were 25,000 to 30,000 eucalyptus trees in 5 acres o f land. In the year 1990- 1991, the trees were sold to Harihar Poly fiber Company and received Rs.1,61 ,000.00. Then he sold the barks and branches o f the trees to one Marigowda for Rs.26 ,000.00 and one Nagaraj for Rs.25,000.00. He also received another sum o f Rs.34,000.00 by selling the branches and the bark in the market . In the year 1996, he received another yield o f eucalyptus and sold the trees for Rs.1 ,65,000.00 and the barks and the branches for Rs.30,000.00. 14. DW3 has given evidence that in the year 1991 he purchased the bark and the branches of eucalyptus trees from the accused for Rs.25 ,600.00. He purchased the same for using them as fuel in his jaggery manufacturing factory (Ale Mane). 15. DW4 is the father-in-law of DW1. His evidence is that at the time of marriage o f his daughter with DW1 he gave about 300 grams of gold to his daughter and son-in-law . He has also stated that he gave a Hero Honda motorcycle and a bracelet to his son-in-law and 5 or 6 Kancheepuram sarees to his daughter in addition to other items like cot and bedding . In the cross-examination he was suggested that he gifted only 81 grams o f gold jewellery to his daughter and his answer was that he would not remember. 16. DW5 has stated that in the year 1993 he bought the barks and the small branches and dried leaves o f eucalyptus trees for Rs.26 ,000.00 for using them as fuel in his jaggery manufacturing unit. DW6 has also stated that in the year 1996 he bought the branches and barks of the eucalyptus trees for Rs.35,000.00. 17. DW7 has stated that Balaraju, the son of the accused, was engaged by him for attending some civil works like construction o f a sump, a canopy, laying mosaic flooring, etc ., and for that purpose he paid Rs.9,625.00 in the month o f February 1998 . DW8 has given evidence that Balaraju attended some repair work in the bathroom o f his house and got done a wardrobe. DW8 has given evidence that Balaraju attended some repair work in the bathroom o f his house and got done a wardrobe. In this connection he paid him Rs.7 ,500.00 in the year 1994-95. 18. DW9 is Range Forest Officer. He has given evidence with regard to assessing the value of the eucalyptus timber based on government notifications. In the cross-examination he has stated that while planting the eucalyp tus saplings in the lands , if distance of one meter from one plant to another plant is maintained , there will be good development of the trees in size and height. 19. DW10 was the manager of Vidyaranyapura Branch o f State Bank of Mysuru. He stated that when he was working as manager, Balaraju had an overdraft account in his branch, the Lokayukta police wrote a letter as per Ex.P36 requesting to provide them the extract o f the overdraft account and accordingly he replied as per Ex.P37. Ex.P38 is the extract o f the O.D account in which there was a balance of Rs.89,705.60 to be repaid to bank. DW11 was the manager of Gandhi Square Branch of Bank of Baroda, Mysuru and he gave evidence that the wife o f the accused namely Padma borrowed dairy loan and she repaid the same in the year 1991 itself. She also borrowed another loan for running provision stores and this loan was also cleared in the year 1994 . 20. DW12 was working as Manager in the main branch of Bank of India. His evidence is that in the year 1999 , Lokayukta police asked him to provide in formation in regard to the loan accounts of N.T .Balaraju and accordingly he provided the same. He stated further that as on 23/12/1998 Balaraju was due in a sum of Rs.49 ,389.12 to the bank. 21. DW13 was working as postal inspector in the of fice of Postal Superintendent , Mysuru. She stated that Balaraju and his wife Anupama had small savings account in the post of fice. The accounts were opened on 24/10/1997 and closed on 14 .12.2004. Ex.P49 and P50 are the documents in this regard. She stated that a sum of Rs.48,000.00 each was deposited in both the accounts, and on those deposits, interest of Rs.520.00 on each account was paid for a period of 14 months . 22. The accounts were opened on 24/10/1997 and closed on 14 .12.2004. Ex.P49 and P50 are the documents in this regard. She stated that a sum of Rs.48,000.00 each was deposited in both the accounts, and on those deposits, interest of Rs.520.00 on each account was paid for a period of 14 months . 22. DW14 has given evidence that when he was constructing a house at Kuvempunagara, Mysuru, he had appointed Balajraju for supervising the construction and in that connection he paid him Rs.10,000.00. DW16 has also stated that he engaged Balaraju as a contractor for constructing a house at Vi jayanagara, II Stage, Mysuru, in the year 1994 and in that connection he made payment o f Rs.2 ,60,000.00 to him . 23. DW15 has spoken about destruction o f documents in the bank where he was working as Assistant Manager . 24. DW17 is the accused himself and has given evidence with regard to various sources o f income he had during the check period . 25. Now if the entire evidence is analysed, it can very well be said that the trial court has not applied its mind properly to the evidence adduced by PW11, the investigating officer, and the evidence led by defence. PW1 has given clear admissions that he omitted to account certain sums of money to the income of the accused . For instance, he did not take into account Rs.24,000.00 towards income from running of taxi by N.T.Dayanand, the son o f the accused, as he did not produce document in the regard . But in the examination chief itself, PW11 stated the car had run 9240 kms , and out o f 9240 kms, Dayanand ran the car for 1240 kms for his personal use. That means the car was used as a taxi for 9000 kms . The very purpose of purchase o f car was to run it as a taxi. The IO should have taken Rs.24,000.00 as income from taxi as the sum appears to be reasonable income that one could expect. When the evidence discloses that he accounted a certain sum o f money towards expenses and assets without any documentary support , it is strange that he left out Rs.24,000.00. The trial court has failed to notice this aspect and it too had not accounted Rs.24 ,000.00 towards income. 26. When the evidence discloses that he accounted a certain sum o f money towards expenses and assets without any documentary support , it is strange that he left out Rs.24,000.00. The trial court has failed to notice this aspect and it too had not accounted Rs.24 ,000.00 towards income. 26. Then the trial court has accep ted the evidence of IO that the income from sale of eucalyptus was Rs.1,79 ,500.00. But according to accused , the eucalyptus trees were sold two times, i.e., firstly in the year 1991 and secondly in the year 1996. He also stated that he sold the barks and small branches, which were secondary produce. He stated that he sold these items for Rs.26 ,000.00 first time and Rs.35 ,000.00 second time, and DW5 and DW6 have given evidence in this regard . These sums were not considered by IO because documents were not produced and that the evidence of DW5 and DW6 appeared to be false. Assuming that evidence of DW5 and DW6 is false, it is a ground reality that whenever trees are sold , the secondary produce like barks and small branches are also available for sale as they are used in brick kilns and jaggery production units. These are all empirical aspects for which the courts cannot expect documents to be produced. In this view, Rs.61,000.00 (26,000+35,000) can be accounted towards income. Likewise, the evidence of DW2 discloses that the eucalyptus trees were sold for the second time in the year 1996 for Rs.1 ,65,000.00 to one Prithviraj and received Rs.1 ,00,000.00 through demand drafts and Rs.65,000.00 by cash. Two demand drafts for Rs.50,000.00 each are available in Ex.P28. At least Rs.1 ,00,000.00 could have been computed towards income. 27. From sale of vegetables, N.T .Dayanand received Rs.41,739.00. PW4 admitted the sale but did not consider this income, as in one bill, the name is written as N.T .Dayanandan. The bills show that vegetables were sold at a place in Tamilnadu where usually the names of males end with the letter 'n' and that's how the name of N.T .Dayananda was written as N.T .Dayanandan. The reason thus given by PW11 is wholly frivolous. Therefore Rs.41,739.00 should be accounted towards income . 28. The bills show that vegetables were sold at a place in Tamilnadu where usually the names of males end with the letter 'n' and that's how the name of N.T .Dayananda was written as N.T .Dayanandan. The reason thus given by PW11 is wholly frivolous. Therefore Rs.41,739.00 should be accounted towards income . 28. PW11 clearly admitted in the cross examination that one Boregowda bought a site bearing katha No .93 for Rs.32,000.00 and this sum ought to have been taken towards income, but not taken. Therefore Rs.32 ,000.00 should be added to income. Another admission of PW11 is that a sum of Rs.18,498.00 on a deposit o f Rs.1,00 ,000.00 was not considered as income. He has stated that since interest amount was transferred to OD account, it was not considered. This computation appears to be wrong because once interest accrues , it becomes income and hence Rs.18 ,495.00 should have been taken as income. 29. The evidence of PW3 shows that the total income from horticultural yields, such as coconut, tamarind and arecanut is Rs.1 ,96,861.00. This amount is after deducting the expenses. But in the charge sheet a sum of Rs.1,55,861.12 is shown as income from garden yield. PW11 does not admit the calculation made by PW3 to be correct. He cannot take a contrary stand , as PW3 is prosecution witness. Difference of Rs.1,96 ,861.00 and Rs.1 ,55,861 .12.00 is Rs.40,000.00. This amount must be added to income. 30. Another infirmity that can be noticed from the evidence of PW11 is that he did not take the dividend earned on the investment made by N.T .Balaraju in chit funds. PW11 has admitted that he did not take the dividends as income, and what he did was to compute the entire investment plus accrued dividend towards assets, which was wrong. Investment in chits should be considered as asset and dividend as income. Therefore a sum of Rs.32,098.00 being the dividend should be accounted towards income, and corresponding to it, in the total value o f asset, Rs.32 ,098.00 should be deducted. 31. Another anomaly found in the computation made by PW11 is that he did not consider a certain sum of money that N .T .Balaraju received by attending to some civil works of some persons namely, Dr.Jagannath, Chaluvanarayan, Ganesh Shastri and a few others . 31. Another anomaly found in the computation made by PW11 is that he did not consider a certain sum of money that N .T .Balaraju received by attending to some civil works of some persons namely, Dr.Jagannath, Chaluvanarayan, Ganesh Shastri and a few others . The income received from this source was known to PW11 as he has admitted in the crossexamination that he examined some persons in this regard, and could not examine a few because they were not available . Accused examined DW7 , DW8 and DW14 in this connection, PW11 should have taken the monies that they paid towards income. As it is found that the evidence given by DW7 , DW8 and DW14 has not been discredited , a total sum of Rs.27,125.00 can be held to have been received by Balaraju, and if a sum of Rs.5 ,000.00 is reasonably deducted towards conveyance charges, the balance of Rs.22 ,125.00 can be included under income column. 32. It is very much evident from the evidence of PW11 that he did not take into account the rental income. He came to know during investigation that the accused had let out the first and second floors of his house. Accused claimed Rs.4,30,000.00 as rental income, but according to PW11, Rs.2 ,53,000.00 was the rental income. It appears that even that sum of Rs.2 ,53,000.00 was not considered as no documents were made available by accused. The learned counsel, Sri C.R .Gopalaswamy submitted that at least Rs.2 ,00,000.00 could have been taken into account. I find force in this argument. It is not in dispute that the accused and his family were living in ground floor. PW11 also came to know that the two other floors had been let out. The house is situated in a posh locality of Mysore , and obviously there would be demand for rental houses. This is a matter of judicial notice and even without any document a notional amount can be taken as rental income. Therefore as argued by Sri Gopalaswamy, Rs.2 ,00,000.00 can be held as rental income as against Rs.4 ,30,000.00 claimed by accused in the schedule filed by him . 33. Then there are two more amounts which PW11 did not consider, and the trial court also failed to notice it. The evidence given by DW10 shows that N.T .Balaraju had an overdraft account at SBM, Vidyaranyapura Branch, Mysuru. 33. Then there are two more amounts which PW11 did not consider, and the trial court also failed to notice it. The evidence given by DW10 shows that N.T .Balaraju had an overdraft account at SBM, Vidyaranyapura Branch, Mysuru. There was a debt of Rs.89,705.00 as on 28/12/1998. The cross-examination was that the limit O.D. facility was Rs.85,000.00, and except this suggestion, the evidence o f DW.10 about Rs.89,705.00 drawn by Balaraju from his O.D. account was not assailed . Obviously, Rs.89,705.00 should have been taken as income. 34. Then the evidence of DW .13 shows that Balaraju and his wife, Anupama had a joint savings account and two recurring deposit accounts which were opened on 24/10/1997 and closed on 14.12 .2004 as per Ex.P .49 and Ex.P .50. Each account earned interest of Rs.520.00 per month for fourteen months. That means Rs.7,280.00 (520 x 14) was the total interest accrued in respect o f one account, and in connection with two accounts, the total interest would come to Rs.14 ,560.00 which should be considered as income. The evidence of DW .13 has not been assailed in the cross examination. Therefore if the amounts as discussed above are added to the figure Rs.24,87,952.09, being the total income as calculated by the trial court, the total income of the accused from all known sources works out at Rs.31 ,56,397.00. 35. Examined whether the I.O . has correctly computed the assets and income of the accused , it can be pointed out that certain sums which ought to have been deducted from assets, have not been deducted, and likewise, a mistake appears to have crept in while computing the expenditure. Even the trial court has failed to notice. 36. PW11 has clearly admitted in the crossexamination that the first and second floors of the house at Bannimantapa Extension, Mysuru were constructed in the year 1991, and the ground floor a few years before. There is no dispute that entire construction was made under the personal supervision of the accused and his family members . PW11 has admitted that 10% deduction is allowed in case of construction under self supervision. On the date of raid, the building was valued at Rs.7 ,41,983.00 without allowing 10% deduction. If 10% deduction is given, Rs.74,198.00 should be deducted. PW11 has admitted that 10% deduction is allowed in case of construction under self supervision. On the date of raid, the building was valued at Rs.7 ,41,983.00 without allowing 10% deduction. If 10% deduction is given, Rs.74,198.00 should be deducted. Then another glaring mistake made by PW11 was to include even the dividend earned on the investment in chits as an asset. Dividend should be considered as income; this aspect has already been discussed and therefore Rs.32,098.00 requires to be deduced from total value o f assets computed by PW11. Therefore a total of Rs.1 ,06,296.00 (Rs.74,198.00 + Rs.32,098.00) is to be deducted from Rs.23 ,03,272.60 being the value of assets, both movable and immovable as shown by PW11 and the amount to be considered is Rs.21,96,976.60. 37. In regard to expenditure, the I.O. , i.e., PW11 appears to have given double deduction to the expenses incurred by Balaraju. PW11 has admitted in the cross-examination that he deducted Rs.1 ,40,000.00 towards expenses such as clothing, gifts etc., and he has also given an admission that Balara ju was living in a joint family. His another admission is that in Ex.P2, he has shown deduction made towards expenses. That means, while computing the expenses, PW11 considered the total expenses o f the joint family, and in that event , he could not have again deducted Rs.1 ,40,000.00 being the personal expenses of Balaraju. The trial court has also wrongly held that deduction of Rs.1,40,000.00 is correct. This sum needs to be deducted from Rs.13 ,64,760.80, the amount which PW11 has computed as total expenditure of the accused for the check period, and therefore, the figure to be considered is Rs.12,24,760.80. 38. The discussion made above takes me to hold that total income of the accused from known sources comes to Rs.31,56,397.00. The total value of assets works out at Rs.21,96,976 .60 The total expenditure during check period works out at Rs.12,24,760 .80 The total of assets and expenditure Rs.34,21,737 .40 39. The difference between the aggregate o f assets and expenditure, and the total income o f accused from known sources is Rs.2 ,65,340.40, which is less than 10% of Rs.34 ,21,737.40. In Kr ishnanda Agnihotri Vs. The State of Madhya Pradesh (1977) 1 SCC 816 , it is held that " 33. The difference between the aggregate o f assets and expenditure, and the total income o f accused from known sources is Rs.2 ,65,340.40, which is less than 10% of Rs.34 ,21,737.40. In Kr ishnanda Agnihotri Vs. The State of Madhya Pradesh (1977) 1 SCC 816 , it is held that " 33. It will, therefore, be seen that as against an aggregate surplus income of Rupees 44,383 .59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rupees 55,732 .25. The assets possessed by the appellant were thus in excess o f the surplus income available to him. but since the excess is comparatively small - it is less than ten per cent of the total income of Rs.1,27 ,715.43 we do not think it would be right to hold that the assets found in the possession o f the appellant were disproportionate to his known sources of income so as to justify the raising of the presump tion under Subsec. (3) of Sec. 5. We are of the view that, on the facts o f the present case the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-sec. (3) of Sec. 5 and convicting the appellant on the basis of such presumption". 40. In this case also, since excess of surplus is less than 10%, it may not be proper to sustain the judgment of conviction passed against the appellantaccused . Therefore appeal is allowed, the judgment o f conviction is set aside. The accused is acquitted of the offences charged against him. His bail bond is cancelled .