State of Maharashtra vs Laxmi Narsimham

B.A. Masodkar, J.—In Special Criminal Case No. 2 of 1972 the Special Judge, Nagpur, found the respondent Laxmi Narsimham son of Brahmaniah Vuppala, a public servant, not guilty for the charge framed u/s 5 (1) (e) read with section 5 (2) of the Prevention of Corruption Act, 1947 (No. 2 of 1947) (hereinafter referred to as the Act), for which he was tried. After hearing the evidence, the learned Judge recorded the judgment of acquittal holding that the accused is shown to be in possession of assets of the value of Rs. 1,00,862.17 (Appendix I to the judgment). He further found that the expenditure of the accused is shown to be Rs. 57,433.85 (Appendix III to the judgment) as against the total receipt of the accused to the tune of Rs. 1,66,712.02 (Appendix II to the judgment). For the purpose of Appendix I, the learned Judge has taken the period mentioned in the charge, being from 25-11-1955 to 3-9-1969, while for the purpose of the other two appendices which are a part of the judgment, the learned Judge has taken the period from 28-9-1953 to 3-9-1969. The charge framed in the present case had put the accused to trial by taking into account the assets for the period between 1955 to 1969 as against the receipts and expenditure between the period 1953 to 1969. Ex. 18, the charge, refers to these periods. Presumably the periods have been taken into account on the basis of the sanction order produced and proved during the trial at Ex. 27. The prosecution tendered evidence of several witnesses to whom reference will be made as and when necessary. As against that, the accused filed his statement of account when he was examined during the trial and which was produced at Ex. 1251. He further examined witnesses in defence.

The Slate complains by this appeal that the acquittal of the accused was not warranted by the facts and circumstances brought on record and even under the law. Initially the case of the prosecution had been that during the period 1953 to 1969 the accused was in receipt of Rs. 1,23,618.95. This included the items of receipt by the accused from his salary, house rent, interest, dividends, loans received, sale proceeds, profits realized, earnest monies realized, amounts realized by sale of movables like gold, amounts borrowed from relatives and outsiders, amounts borrowed from the Central Railway Employees'' Cooperative Bank or against insurance policies and other receipts of ex-gratia amounts from father, brother or nephew. On the basis of this income or receipt, the prosecution case had been that the accused had in his or his wife''s possession unexplained surplus of Rs. 49,000. For the purpose of calculating the surplus, the prosecution relied on the fact that the accused had an expenditure to the tune of Rs. 62,775.23 and had pecuniary resources and property valued at Rs. 1,10,123.32 as on 3-9-1969. It may be stated that by Ex. 1251 the accused claimed that his total receipt from all sources was Rs. 2,01,490.02, his assets being of the value of Rs. 98,838.92 and the expenditure of Rs. 54,123.34. Thus, as against the unexplained excesses alleged by the prosecution the accused asserted that he had excess receipt of about Rs. 48,000. Between these two competing cases, by the impugned judgment substantially the learned Judge has found in favour of the accused and recorded a finding that the accused had excess receipt over and above the assets and expenditure.

It is pertinent to observe at the outset that during the trial no effort was made to progressively find out the account of the accused which would have projected a clear picture of the financial position of the accused. In this Court both the parties have tried to indicate how the accounts would stand from year to year, the most crucial of the items being that of the receipts. As there is a finding of excess receipt in the hand of the accused, the relevant aspect for the decision of this appeal eventually would be the validity of the finding of the receipts as recorded by the learned Special Judge.

Considerable arguments were advanced before us. Practically we were taken through all the evidence which is voluminous. After going through all the evidence and the record, we were left with an extremely uneasy feeling about the whole trial and its conduct. We would indicate when we proceed to judgment in detail the reasons for the same.

Taking the events that led to the trial and eventual acquittal, it may be stated that the accused is a public servant and he entered the public service of the Buildings and Communications Department of the State Government on 28-9-1953 and his monthly emoluments were only Rs. 146-8-0 inclusive of all allowances. Thereafter he was employed with the Central Railway in the Union service from 24-11-1955 and his pay-scale was Rs. 150-225 till 27-6-1962. From that he was promoted as Inspector of Works and was in the pay-scale of Rs. 250-380 till the relevant date, i.e. 3-9-1969. It appears that complaints were received by the C. B. I. Bombay, on the basis of which a first information report was drawn up as per Ex. 1027, investigation was authorised as per Ex. 1028 and P. I. Pardeshi (P. W. 128) eventually effected searches on 2-9-1969 of house No. 502 at Laxaribag and on 3-9-1969 of the house at Warora. The search Panchnamas Exs. 79 and 85 were prepared, and during the searches as many as 56 files were attached, which brought to light several promissory notes and several documents showing involved transactions of the accused. Though at the foot of these Panchanamas the assets were valued at Rs. 4,625.25 apart from the prize bonds of Rs. 810 at Nagpur, and the assets at the Warora house were valued at Rs. 45, eventually during investigation, the assets were assessed to be of the value of more than a lakh of rupees. It is obvious that the immediate disclosure in this search indicated that the accused was indulging in money-lending. On the record of this case, several pro-notes have come numbering about 22 and its face value is in the vicinity of Rs. 57,000. It is significant that these pro-notes relate to the period 1968-69 and clearly show that the accused was regularly dealing in money-lending. Apart from the defence of the accused as against each of these pro-notes to which a reference would be necessary when we discuss the evidence, these pro-notes which are at Exs. 88, 96, 97, 101, 109, 113, 122, 123, 124, 132, 180, 187, 188, 190, 218, 228, and 400 to 404, clearly show several persons promising to pay several amounts to the accused for consideration having been received. Further it transpired that between these two years 1966 and 1968 the accused had several dealings in real property-Certain books said to be the note books of account maintained by the accused were attached and taken possession of by the investigating officer and presumably carrying the lead from those books, investigation was conducted, and as stated above, at the foot of the investigation, the prosecution came to the conclusion that the accused was possessed of unexplained assets to the tune of Rs. 49,000. Having obtained sanction produced at Ex. 27, a charge-sheet was put up.

Before we deal with other matters, the attack on this sanction (Ex. 27) which was negatived by the trial Court and which has been raised before us by the learned counsel for the accused may be noticed and disposed of. It is contended that the sanction is not by the competent authority. The sanction is given by the Chief Engineer (Construction), Central Railway, Bombay, who, for the purpose of this appeal, it is not disputed, is the head of the office under whom the accused was working. The objection is based on the submission that he is not the appointing authority. This objection, in our view, is without any merit. Rule 134 contained in the Indian Railway Establishment Code, volume 1, deals only with the first appointment. There are rules in Chapter XVII called Discipline and Appeal Rules and in Schedule I the head of office is the authority empowered to place a railway servant like the accused under suspension as well to impose a penalty of removal. The term "Appointing Authority" as is defined in rule 1702 clearly indicates that the Disciplinary Authority competent to remove or dismiss is also the appointing authority. Thus, the sanction accorded in this case by the Head of Office is competently given and no exception can be taken to the same.

Before we deal with the exact subject-matter of the appeal which, as we indicated, can be the various items of receipts, we feel after carefully considering all the aspects of the matter that it is necessary to make certain observations with regard to the contemplation of the law having relevant bearing on the exact scope of the provisions of section 5 (1) (e) read with section 5 (2) of the Act. As stated above, whatever came to light during investigation has been classed and put under the head of "income" by the prosecution, so also by the sanctioning authority, and further is also made a part of the charge under the head of "income", and the disproportion is worked out taking into account the base figure of total receipts. Naturally the defence had also been in the same terms.

The relevant provisions of the Prevention of Corruption Act, section 5 (1) (e) which was enacted by Act 40 of 1964, read as follows:

(1) A public servant is said lo commit the offence of criminal misconduct-

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(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.

It is obvious that under clause (e) the Legislature intended to create an independent offence with regard to the criminal misconduct for which a public servant could be found blameworthy. A plain reading of clause (e) indicates that it is an offence to possess disproportionate pecuniary resources and/or property for which the public servant cannot satisfactorily account. Mainly, therefore, the two ingredients which will have to be satisfactorily established are, firstly, possession by a public servant either by himself or on his behalf by anyone of pecuniary resources or property which is disproportionate to his known sources of income, and secondly, his inability to satisfactorily account for the said disproportion. Closer considerations indicate that the disproportion has to be worked out by taking into account the known sources of income as against the pecuniary resources or property in possession of the public servant either by himself or with any person on his behalf. Having found such a disproportion the public servant is obliged to account satisfactorily for the same. In case the prosecution proves that the public servant is unable to satisfactorily account for possession of the disproportionate assets i.e. the pecuniary resources or property, the offence of criminal misconduct under this head would be made out.

Now, the crucial phrase that was debated before us and that calls for consideration is "his known sources of income". On the one side, it is argued that "income means all receipt, while on the other, it is submitted that the word "income" means merely the salary drawn by the public servant. Like any other statute, we must approach the provisions of the Act by clearly keeping in view the object and intent of the Legislature and in the context interpret the terms available therein. The offence u/s 5 (1) (e) read with section 5 (2) obviously deals with the criminal misconduct that can be committed by a public servant. The object of the Act is to provide for penalties so as to flush out and further check corruption from the system and stream of public administration. To keep the governmental processes unsullied and to enact penalties which will achieve that object are the twin motivating forces behind the present legislation. The terms used, therefore, in the defining sections will have to be understood in this context of the object and the public servant as understood by the Act. No doubt, while interpreting a penal statute, the words and terms will have to be strictly construed and as far as possible in favour of the subject and that interpretation which the common man is liable to put upon the words used by the Legislature will have to be preferred. This is more so when the Court is called upon to deal with statutes of penalties. It is obvious that penal statutes are negative commands and the meanings attached to the words should, as far as possible, be the same as understood in popular parlance in preference to articulate or special or scientific connotations. While understanding the language of the Legislature in this manner, it is equally necessary to observe that the task of interpretation has to be performed to achieve the purposes and the objects of a given statute and suppress the mischief for which the prohibition or the penalty was enacted.

The phrase "known sources of income" has clearly the emphasis on the term "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The Legislature has not offered any definition of the term "income", though it has enacted and used if as a part of the total phrase "known sources of income".

The term "income" by itself is elastic and has a wide connotation. Whatever comes in or is received is income. Black''s Law Dictionary, revised fourth edition, page 906, defines the term "income" as connoting the return in money from one''s business, labour, or capital invented; gains, profits, or private revenue. (See also Aiyer''s Law Terms and Phrases, 7th edition, where the Standard Dictionary on the English Language by Funk and Wagnail is quoted, connoting that "income" means an amount of money coming to a person or corporation within a specified time or regularly whether as payment for services, interest or profit from investment). This dictionary meaning emphasises the element of regularity of the return and the presence of some source from which the receipt is derived. In the Oxford English Dictionary too, "income" is treated to be periodical receipts from one''s business, lands, work, investment, etc. See also Mukherjee''s Law Lexicon, page 729, Mitra''s Legal and Commercial Dictionary, page 333, V. Ramaswami v. income tax Commissioner A I R 1959 Mad. 126. and Guruswami Nadar and Others Vs. Ezhumalai Panchayat Board and Others, . Thus, no doubt in popular parlance "income" comprehends receipts from wide species having a nexus however to one''s labour or one''s expertise, or one''s properties or investments, and having further son e element of regularity from such source.

Though not pari materia, it is interesting to note that in the context of tax legislation this term "income" eluded all exactitude and specifications of answers. Courts have noted that its canvass is wide as well vague. It signifies what comes in (per Selborne C., Jones v. Ogle 42 L J Ch. 336.) and it is as large a word as can be used to denote a person''s receipts (per Jessel M. R., Re Huggins 51 L J Ch. 938.) The element of regularity or expected regularity and of source was emphasised by the Privy Council in AIR 1932 138 (Privy Council) . where it was observed in the context of the Income Tax Act that income connotes a periodical monetary return coming in with some sort of regularity, or expected regularity, from definite sources. The source is not necessarily one which is expected to be continuously productive, but it must be one whose object is the production of a definite return, excluding anything in the nature of a mere windfall. This judgment has further been explained in 2011 (11) ITR (Trib) 513 . where the Privy Council observed:

Income, it is true, is a word difficult and perhaps impossible to define in any precise general formula. It is a word of the broadest connotation.

It was further noted that the earlier decision in Commissioner of income tax, Bengal v. Shaw Wallace and Co. was substantially followed in Gopal Saran Narayan Singh v. Commissioner of income tax, B and O 3 I T R 237. The similes and the tests laid down in these two decisions were not strictly approved, and their Lordships observed: "But it is clear that such picturesque similes cannot be used to limit the true character of income in general, and particularly when it is constituted by mining rent or royalties" (they being matters under judgment before the Privy Council); and their Lordships eventually found no justification for treating royalties as capital payments and treated them as income within the meaning of the Act.

In Dooars Tea Co. Ltd. Vs. Commissioner of Agricultural Income Tax, West Bengal, . the Supreme Court found the term "income" as it is used in the Indian Income Tax Act, 1922, as formidably wide and vague in its scope and of elastic import and not controlled or limited by the use of the words "profits and gains" in sections 4 and 6 of the Act. It was observed that what the word "income" denotes has to be determined in the context of the said section.

This authoritative debate is indicative that however wide the import and connotation of the term "income", it is capable of being understood as meaning receipt having a nexus to one''s labour, or expertise, or property, or investment, and having further a source which may or may not yield a regular revenue. These elemental characteristics are vital in understanding the term "income". Therefore, it can be said that though "income" is receipt in the hand of its recipient, every receipt would not partake into the character of income. To an income, the elements which we have referred to above will have to be found out. Without being exhaustive and putting it at the minimum, we find that at least to stamp the return or receipt of money as income, it should be the fruit of one''s business, one''s labour, one''s expertise or one''s capital investment or gains or profits from such investment or property. It is easy to distinguish the receipt of other kinds from such type of income.

Qua the public servant, it is obvious that whatever return he gets of his service will be the primary item of his income. Other income which can conceivably be income qua the public servant will be the regular receipt from his property or from his investment. This is high lighted clearly by the total phrase "known sources of income" which is restrictive as well explanatory in meaning which cannot be overlooked by anyone. By enacting such phraseology the Legislature clearly conveys, chisels out and carves out a restrictive connotation out of the wide canvass of the concept of income. The preceding words "known sources" are restrictive in character and explanatory in contemplation. Question always must be asked as to what could or can be the basic receipt that is required to be taken into account for the purpose of finding out the proportion or disproportion of assets in the hand of the public servant.

The significance of the use of the word "known" in this contextual phrase and its juxtaposing with the word "sources" cannot but be emphasised. Legislative use of every word has to be treated as purposeful and attempt should be to find definite unity of sense and meaning. When more than one word is collocated together so as to convey what is intended, then every term adds hue and colour, fibre and texture to other The word "known" indicates that to be the known source it should be a familiar, recognised and publicly notorious source returning income. When we say "familiar", we understand that as distinct and opposed to secretive, and when we use the term "recognised", we intend to convey something "recognised by law or by social ethics" as against "prohibited by law or custom" in the sense "illicit", and when we use "publicly notorious", we understand it as contradistinguished from clandestine or corrupt. Even to a layman, the word "known" cannot have any other meaning. In the present phrase, this term "known" goes on to qualify "source" which gives rise to or can be the source for, receipt to a person. To be income, therefore, the receipt must be from a source of such a kind. A receipt from windfall or gains of graft or crime or immoral accretions by persons, it appears to us, prima facie would not be the receipt from the "Known sources of income" of a public servant. From this it should be further obvious that "loans" taken or "debts" raised can hardly be treated as "income". Loan or debt is distinct from income. It need not have any source. Properly stated it is a receipt accompanied by liability and obligation to refund or repay. Income proper is distinct as no such liability attaches to it while it is so received. On the other hand, receipts under income have inherent quality of being available entirely to the recipient. Though trite, it is right to observe that each item of "income" though a "receipt", every item of "receipt" is not necessarily "income".

The two decisions where this phrase has been noticed by the Supreme Court are C.S.D. Swamy Vs. The State, and Sajjan Singh Vs. The State of Punjab, . They are instructive in this regard and in the context indicate that the term "income" does not take in each and every receipt in the hand of a person. In C. S. D. Swam''s case (cit. supra) the Court was considering the provisions of section 5, which used the identical phrase "known sources of income". While dealing with the submission that the prosecution bad failed to lead evidence on all the known sources of income, the Court observed that that expression has a reference to the sources known to the prosecution on a thorough investigation of the case, and it had no reference to the sources known to the accused, which will be specially within the knowledge of such accused within the meaning of section 106 of the Evidence Act. It further remarked:

The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead propel evidence as to the appellant''s known sources of income. It may be that the accused may have made statements to the Investigating Officers as to his alleged sources of income, but the same, strictly would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.

These observations clearly indicate that two limitations on the phrase were conceived, the first being that of source, and the second being by the use of the word "known". The Court clearly found that this phrase indicated by the term "known", as known to the prosecution, and by the term "sources of income" it had reference to the income derived by a particular individual depending upon his position or occupation or avocation in life.

In Sajjan Singh v. State of Punjab the same said provisions of section 5 (3) of the Act, as was available, were considered and the expression "known sources of income" was held to have reference to the sources known to the prosecution on a thorough investigation of the case and excluding the sources known to the accused.

These two decisions are authorities for the proposition that the term "known sources" initially take in the sources known to the prosecution and it will be for the accused to disclose and prove any other source that may be his source of income. Having found so, we have no difficulty in holding that upon the plain reading and construction of the section, the basic consideration has to be about the known sources of income and the receipt derived at the root of such income. That receipt has to be compared for the purpose of finding the proportion or disproportion of the pecuniary receipt or property held by the accused in his own name or in anyone else''s name. If the disproportion is so established or is so reached, then the law requires that the public servant has to satisfactorily account tor such disproportion, and it is only when the prosecution shows that the public servant is unable to satisfactorily account for the disproportion so worked out, that he can be said to be blame-worthy.

It is at the stage of satisfactorily accounting that a consideration of other receipts as distinct from income will obviously enter. We are not impressed by the argument that by such construction the public servant will be exposed to unnecessary liability and undue harassment. We have already indicated that the burden is on the prosecution to show that both the elements of the offence are brought home in that there exists a disproportionate asset and further that the accused is unable to explain the disproportion. Merely finding the disproportionate assets would not lead to the consequence of holding the public servant guilty. During the investigation which on good authority and on the first principles of criminal jurisprudence, we may observe, has to be thorough and the prosecution may fail if it is defective, the public servant is liable to make disclosure so as to satisfy the investigating agency which he may do so by showing other receipts that will explain the disproportionate assets. Further we find that as a measure of protective policy the Prevention of Corruption Act has in-built checks and balances enacted right from the stage of permitting investigation till the stage of sanctioning prosecution. It is well settled that the authorities enjoined to do these functions have to apply their minds to the facts and circumstances of the case. Even though, therefore, the investigating agency may not take into account the receipt disclosed by the accused, it is expected of the authority which is empowered to sanction prosecution to take into account all the facts and circumstances including the one as to whether the person accused has satisfactorily accounted for or not the disproportionate assists alleged against him. All types of other receipts which are not appropriately part of the known sources of income would be the matter of satisfactorily accounting to be made by the accused. If upon investigation or otherwise such receipts are accepted as explaining away the disproportion, there would be no occasion to prosecute the accused. If during investigation stage the explanation of the accused with regard to the excess was not found satisfactory, and if the matter goes to trial, on the principles indicated in C. S. D. Swami''s case (cit. supra) as well Sajjan Singh''s case (cit. supra), the accused is still free to lead evidence of the matters which are specially within his knowledge within the meaning of section 106 of the Evidence Act and prove on the touchstone of probability that he is not culpable for criminal misconduct under this head. We need not say in this case what type of other receipt will be taken into account by the Court for such purpose, for that will depend on the facts and circumstances of each case.

As indicated above, therefore, we cannot but remark that right from the stage of investigation till the stage of charge and trial, the matter has been approached more or less in an omnibus manner, in that all the receipts were treated as income and an attempt was made even to find out the disproportion there against. Not only this, evidence was called by the prosecution to prove other receipts which would not constitute income. Having examined such witnesses who were profoundly interested in the accused either being his close kith and kin or persons having dealings with him, it was easy for the accused to further elicit information by adding to the figure of his total receipts. On the basis of that evidence, the Court concluded that the total receipts of the accused during the relevant period 1953 to 1969 were Rs. 1,66,712.02 as against the claim of the accused in Ex. 1251 that his receipts had been to the tune of Rs. 2,01,490.02. In the figures set out in the charge, the prosecution had put the receipts, though loosely called income, at Rs. 1,23,618.95 which included a substantial amount of Rs. 27,252 as amounts said to have been borrowed from the relatives and outsiders. The Court has accepted that the amounts by way of loans were Rs. 52,952 from relatives and private persons, apart from the loans received by the accused from the Central Railway Employee''s Co-operative Bank and against insurance policies. The judgment under appeal makes several references to the sanction order for the purpose of finding in favour of the accused. That also indicates chat a somewhat mechanical or omnibus approach was made to the case by everyone concerned. In our view, it was necessary to classify receipts from known sources of income and to work out the disproportion of pecuniary assents in the hand of the accused and further to put other receipts against that disproportion if accepted during investigation as the part of the satisfactory accounting by the accused. That not having been done, the result is that several witnesses were culled by the prosecution and examined as its own witnesses who, it appears to us, have come bandy to the accused to prove better items of receipts which were not even disclosed during investigation. Had such an attempt been made to classify the accounts of the accused, we cannot predicate as to the result of the trial.

As many as 128 witnesses were examined by the prosecution. Amongst them are several close relatives of the accused. They had to be, as can be expected, declared hostile and were further subjected to cross-examination by the prosecution. The matter did not stop here as to the examination of the witnesses for the prosecution but the accused moved an application purporting to exercise his right u/s 251-A (9) of the Code of Criminal Procedure, 1898, seeking permission to call as many as seven witnesses as per Ex. 1136. It is not in dispute that the witnesses whose names have been mentioned therein, though disclosed in the charge-sheet, were the witnesses who were given up by the prosecution by filing an appropriate purses at the earliest stage of the trial. It is also not in dispute that the Court had permitted giving up of the witnesses. The Court passed the order below Ex. 1136 repelling the objection of the prosecution and calling these witnesses solely for the purpose of cross-examination by the accused. Though permission was given to so cross-examine seven witnesses, eventually only four of them were cross-examined without there being any examination-in-chief and further cross-examined by declaring them hostile by the prosecution. The three witnesses under Ex. 1243 were given up by the accused as no more sought. These witnesses are styled as prosecution witnesses Nos. 130 to 133. The order below Ex. 1136 clearly is unsustainable; so also the procedure followed thereafter for recording the evidence of these four witnesses Pramila (P. W. 130), Vinayak (P. W. 131), Shankar (P. W. 132) and Guruwaiah (P. W. 133). All these witnesses, the record clearly shows, after they were administered oath, were permitted to be cross-examined by the accused and thereafter it is further strange to observe, were permitted to be cross-examined by the prosecution, at some places, declaring them hostile on the basis of their so-called police statements. In our considered view, both the calling of the witnesses in this manner u/s 251-A (9) of the Code of Criminal Procedure, 1898, and the procedure followed while recording their evidence was entirely illegal and not warranted either by the procedure of the Code or by the provisions of the Evidence Act.

Now, the provision under which this diligence was shown by the learned Judge in favour of the accused is section 251-A (9) of the Code of Criminal Procedure, 1898, and it reads as follows :

If the accused after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not he compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice.

It is apparent that this section which was substituted by Act 26 of 1955 was intended to provide for the same-said procedure which is available under sections 256 and 257 of the Code to the accused. No doubt, it gives a right to the accused to compel attendance of the witnesses and in the context of the witness, the term "examination" or "cross-examination" or "the production of any document" has to be understood. If a witness is already examined in the early stage of the proceedings, the right conferred by sub-section (9) of section 251-A permits his recall for the purpose of cross-examination. If, however, he has not been examined, he can only be called for the purpose of examination. The proviso which operates upon the right of cross-examination further clarifies that there is no right in the accused to call a witness who is not examined, only for the purpose of cross-examination. Further, this provision has to be read in the context of the provisions of the Evidence Act, particularly of Chapter X thereof, The trial of such accused is clearly governed by the provisions of the Evidence Act and the Code of Criminal Procedure does not make any exception about it. The term "witness", though not specifically defined, has to be understood as used by the Code of Criminal Procedure in the sense legally assignable to it and as contemplated by Chapter IX of the Evidence Act. Such witness can be examined in the manner indicated by Chapter X. Section 137 explains what is examination-in-chief, cross-examination and re-examination, and section 138 lays down the order of examinations. The compendious term "examination" takes in examination-in-chief, cross-examination and re-examination, but the order of examinations is clearly governed by the provisions of section 138 which is enacted in a mandatory form. Every witness, therefore, called to testify has to be first examination-in-chief and can be cross-examined by the adverse party. It is implicit in this that the examination-in-chief is by the party who calls the witness in his favour to testify, and by the use of the words "adverse party" it is the right conferred on the opposite party to cross-examine such witness, which can only be permitted after the witness is examination-in-chief. Within the gamut of section 138 there is no stage contemplated where the witness could only be subjected to cross-examination either by the party calling or by the adverse party. It is only with the permission of the Court u/s 154 that the party calling a witness is permitted to cross-examine such a witness. Keeping, therefore, sections 138 and 154 together, it is impossible to sanction the procedure followed by the learned Special Judge with regard to the record of the evidence of these four witnesses. We have already indicated that sub-section (9) of section 251-A of the Code of Criminal Procedure was not attracted only for the purpose of cross-examination of witnesses who were duly discharged and they are not witnesses as such during the trial.

Even with regard to the witnesses examined during the committal proceedings and given up at the stage of session and subjected to cross-examination during the trial, this Court had occasion to clearly denounce such a practice: See Emperor Vs. Kasamalli Mirzalli, . Apart from the propriety of such practice, we find that there is no sanction for calling a witness given up via the provisions of section 251-A (9) only for the purpose of cross-examination by the defence. Further, there is no warrant in the provisions of the Evidence Act only to cross-examine a witness without any examination-in-chief. A look at the record of the evidence of these four witnesses clearly brings out the illegalities in this regard. Pramila Gosthu who is styled as P. W. 130 was administered oath and straight away cross-examined by the defence. After cross-examination for the accused was over, the Court entertained the request for the prosecution that the witness was not supporting the prosecution and permitted the cross examination u/s 154 of the Evidence Act, in spite of the objection by the accused. Then followed the cross-examination by the prosecution. As far as this witness is concerned, it is really difficult to see how and on what basis the Court granted permission u/s 154 of the Evidence Act. The brief note in the record shows that at that stage for considering the request on behalf of the prosecution, the Court took into account the statement of the witness before the investigating officer. It is indeed difficult to understand how without examination-in-chief such an exercise was permissible. Then Vinayak (P. W. 131) was similarly subjected to cross-examination after administration of oath followed by cross-examination by Public Prosecutor for the prosecution and further examination by the accused. The learned counsel for either side were not in a position to point out any section of the Evidence Act which would sanction this procedure of record of evidence. For the defence, however, it was suggested that once the witness was called for cross examination u/s 251 A (9), the cross-examination can be further pursued after the cross-examination of the prosecution. In short, Vinayak has been subjected to three cross-examinations, two by the accused and one by the prosecution-all unwarranted by law. Shankar (P. W. 132) was initially subjected to cross-examination by the defence and permitted to be re-examined by the defence. On what basis the permission to re-examine was granted it is difficult to comprehend. Guruwaiah (P. W. 133) who is the maternal uncle of the accused was cross-examined for the accused after oath was administered and subjected to hostile cross-examination by the prosecution. The permission to cross-examine was granted on the basis that the witness appeared at the instance of the defence and the further observation by the learned Judge that that circumstance showed that the witness was not going to support the prosecution. It is indeed clear that permission was lightly granted and without appropriately applying the provisions of section 154. With the record of this type of evidence which demonstrates a clear error of law, we are left with two alternatives (i) not to read this evidence at all, and (ii) to treat the cross examination by the defence as examination-in-chief and whatever followed as the cross-examination by the prosecution. Excepting these two, it is not possible to cure the defect of error of law in this regard. We would like to follow the first alternative for the purposes of this appeal because of our eventual judgment and would not take this evidence into account.

After going through the record with both the learned counsel for considerable time, it has transpired that another error of law has crept in, that is, with regard to the prohibition imposed by section 162 of the Code of Criminal Procedure, 1898. At least for the purposes of this appeal, both the learned counsel were in agreement that Exhibits 29, 30, 31, 32, 34 and 59 to 63 could not have been exhibited in view of the bar of section 162 of the Code. Indeed, this submission is well-merited. Shrirang (P. W. 1) who is the Chief Clerk in the Vigilance Section of the Central Railway, was examined and these documents were said to have been got proved by that witness either because he identified the signature or was aware of the matters in issue. Ex. 29 is a confidential letter from the Divisional Superintendent''s Office. Ex. 30 is a communication to the Superintendent of Police with regard to the queries made during investigation. Ex. 31 is another communication to the Superintendent of Police during investigation with regard to the inquiries made from the office of the General Manager, Central Railway, Bombay. So is the position with regard to Exs. 32 and 34. The statements produced at Exs. 59 to 63 were collected from the accused as desired by the investigating officer showing his assets and other properties as on 3-9-1969. Ex 58 is a similar disclosure to the police with regard to the occupation of the railway quarter. All these documents and other documents have been just exhibited without keeping in view the bar enacted by the provisions of section 162. Furthermore, even with regard to the oral record of testimony of the witnesses, the provision has not been kept in view nor applied. On the other hand, the evidence which will otherwise be hit by that provision is not only allowed on record but has been used in the judgment. To illustrate, we may refer to the evidence of P. I. Pardeshi (P. W. 128). In cross-examination the answer given by the witness and recorded is to the following effect in paragraph 219:

I give the details of the amount of Rs. 58000 in Item No. 19 of income on page 4 of Exh. 27 which were disclosed to me during my investigation by V. Koteshwarlu and it was accepted by me subject to proof.

Then followed the details of about 11 items. The learned Judge in paragraph 82 of the judgment has utilized this as evidence to prove the receipt of Rs. 58000 in the hand of the accused from V. Koteshwarlu. The italics portion out of the reply clearly shows that the disclosure referred to by the investigating officer was a statement made by the witness to him and was clearly hit by the provisions of section 162 of the Code.

In the matter of application of this provision and the duty of the Court to apply the same, we cannot but re-emphasise what was said by the Full Bench of this Court though with regard to the admissibility of the statements contained in pre-trap and post-trap panchanamas in a corruption trial, in Vishnu Krishna v. The State. 1974 Mh. L J 789=76 Bom. L R 627 (F B). After laying down the law it was observed :

However, if a panchanama incorporates a statement which amounts to a statement intended as a narration to a police officer during his investigation then it would fall u/s 162, Criminal Procedure Code and will have to be excluded. That, however, is a duty which the Court must perform every time a panchanama is tendered in evidence

(Italics ours).

What is true of panchanamas is equally true of the matters of statements made to an investigating officer during investigation which may take the shape of letters or oral communications. The Court has to be chary in this regard and cannot allow any evidence or matters which are expressly shut out by the ban of section 162 of the Code. We have illustratively indicated that this salutary duty does not appear to have been satisfactorily discharged in the trial of the present case. If we were to apply this rule strictly, several of the documents admitted on record and some of the passages from oral testimony will have to be excluded from consideration.

One more defect which has recently surfaced out of the voluminous record of the case is exhibiting documents without proper proof and permitting evidence which cannot be strictly called evidence. It appears that there were certain proceedings against the accused initiated upon some complaint and vigilance inquiry was undertaken. One Jagasi, Vigilance Inspector, appears to have inquired into the allegations of that complaint. Without examining that Vigilance Inspector or the inquiry officer, documents like Exs. 40 and 40 (1) have been allowed on record and form part of the evidence. In fact, during the course of the arguments for the prosecution stress was being placed on the disclosures made by the accused to the said officer as evidenced by these Exhibits. For the purpose of proving these vigilance proceedings, we have no other evidence except Shrirang Harshe (P. W. 1), Chief Clerk. He has simply produced the report and identified the signature. In fact, he is unable to say what had happened in that inquiry. We are not sure nor was our attention drawn to any rule, or order or provision of law, which would give the status of a public document to this report. Like any departmental matter, it appears to be a departmental proceeding and that too not initiated on the basis of any definite charge but an inquiry on some complaint received from some stranger. The report so made on the complaint inquired into by Jagasi cannot ex facie be a public document, nor can be so exhibited by tendering evidence with regard to the identity of the signature of officer concerned. It is further difficult to uphold the exhibition of Ex. 40 (1) which appears to be the questions put by the said Jagasi to the accused and the answers given by the accused and the record made thereof. Without examining Jagasi this document could not have been proved, much less its contents can be said to have been proved. The evidence of P. I. Pardeshi, particularly with regard to his cross-examination and the record thereof, exposes another infirmity. At several places the details are asked about the calculation in the matter of assets, expenditure or receipt from the witness and answers are recorded which say that the witness had accepted the figures subject to proof. It is difficult to understand the meaning of this record. If it is a mere matter of opinion of the investigating officer about the claim as to a particular item in the account, that can hardly go on record. If it is a mere tentative conclusion drawn by the investigating officer at the stage of investigation, it cannot be evidence. It is difficult to dispel the impression in the matter of record of evidence that it was being recorded rather mechanically. To be evidence the witness must narrate facts and he can only be the witness of fact and that too relevant and admissible facts in issue, as contemplated by law. We have little hesitation, therefore, in holding that the recording of the evidence had not been very satisfactory. There is a further aspect which may also be noted though not of very great significance and that is with regard to examining Court witnesses, being Kamlabai (C. W. 1), Ishwaramma (C. W. 2) and Lingaiya (C. W. 3). These witnesses were examined, though given up by the prosecution, by recourse to the power u/s 540 of the Code. Indeed the power which inheres in the Court has to be exercised in the interest of justice. Whether it has been so exercised or not always raises a debatable issue to be decided on the touchstone whether the evidence of such a witness appeared to be essential for the just decision of the case. Had we gone merely by the record of the case which indicates that the witnesses were present in Court and had come from a long distance, though they were given up on the earlier date and the accused made an application to examine them as Court witnesses, we would have thought that the power was not properly exercised. Only because a party applies to the Court to examine the witnesses as Court witnesses, the request is not to be granted as of course. The Court has to find out whether their evidence appears to be essential to the just decision of the case. Though there is no express order in this regard, we will treat that it appeared to the Court that the evidence was essential and, therefore, the power was exercised.

Having said all this at the very outset and without entering upon the merit of the present appeal, the question is whether the case should be directed to be retried and what would be fair and just in the circumstance of the present case. Though a retrial for merely recording additional evidence has not been approved, it appears that though exceptional, the appellate Court can direct retrial when the trial is vitiated by serious illegality or irregularity or on account of misconception of the nature of the proceedings and on that account in substance there had been no trial, and further that in the interest of justice make out an appropriate case that the accused should be put on his trial again: see Abinash Chandra Bose Vs. Bimal Chandra Bose, and Usha Kolhe v. State of Maharashtra A I R 1963 S C 1531. In Ramanlal Rathi Vs. The State, 305. which decision was referred to by the Supreme Court in Usha Kolhe"s case (cit. sup.), the learned Chief Justice laid down the guiding principle in the following words:

A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard.

We would have been justified on the basis of the defects noted above to order a retrial of the accused, but it appears to us that looking to the controversy in substance between the parties, no useful purpose is likely to be served by ordering such a retrial. The raid and the seizures had been in the month of September 1969. The accused faced his trial for quite a long time and it is indeed not disputed and is clear from the record that continuously for six months evidence was recorded and it runs into 2000 pages. Even in this Court this appeal is pending since 1973, and we had been engaged in hearing the matter for about six weeks. Though no doubt mere question of involvement of time could not be a relevant consideration in the matter of ordering retrial; but as a Court of justice and not only of law, we have always to hold the balance between fairness and unfairness, and find how best the ends of justice would be subserved. It is likely that if we direct retrial, the accused would be subjected to untold difficulties including those of expenditure and involvement of time, which may border on harassment of the accused. Defects were avoidable and are not only the responsibility of the accused. Further, having heard the matter in its entirety, we see that as the prosecution is laid upon record the accused is entitled to benefit of doubt. Though, therefore, there are strong grounds to quash the trial because of the defects which we have stated above and to which we have made a somewhat detailed reference, we are inclined to consider that under the facts and circumstances of the case it would not be appropriate or just or fair to direct a retrial.

There is yet another reason why we have come to this conclusion so as to tolerate these defects. As we have indicated above, the prosecution came out with a case of Rs. 49,000 as the unexplained excess in the hand of the accused. That case, after hearing the evidence has been negatived to this extent that the trial Court found about Rs. 8,000 in excess on the side of receipt with the accused. In other words, the trial Court did not find any room for coming to the conclusion of disproportion of assets. As we have indicated above, upon an analysis of the provisions of section 5 (1) (e) read with section 5 (2) of the Act, there are two main ingredients of the offence, one being the disproportionate assets in the possession of the accused or in the possession of any other person on his behalf, and the other being the inability of the accused to satisfactorily explain the said disproportion. Throughout the investigation, the prosecution itself came out with a case that the accused was in a position of receiving monies from his relatives and other creditors to the tune of Rs. 27,000 and only chose to put the charge with regard to Rs. 49,000. The evidence that went on to substantiate the items of loans or other credits to the extent of Rs. 27,000 has been substantially accepted by the learned Judge to find out the figure of loan to the tune of Rs. 50,952. It is well settled that the burden of the accused in such matters is akin to the burden of a party to a civil suit, and the accused can, by raising probability about the matters of receipt, satisfactorily discharge that burden. Thus, having begun the prosecution in this manner, the eventual result in favour of the accused appears to us to be more or less an exercise of judgment to find probabilities and nothing else. This statement we wish to qualify by observing that everything does not appear to be well to us about this type of appreciation of evidence and there is equally other possible views of the facts that can be arrived at after appreciation of evidence which would show the hollowness of the claim of the accused. But as we observed, it is an equally possible view and it is not permissible to set aside the judgment of acquittal only because the appellate Court takes another view of the facts: see Muluwa and Others Vs. The State of Madhya Pradesh, .

Before we consider the evidence in some detail on the aspects which were disputed, particularly on the side of receipt, we may observe what appears to us to be very apparent in the record of the present case. The accused has drawn salary which, compared to his proved assets, is absolutely meagre. It appears that he was involved in regular money-lending transactions as well as transactions of dubious origin with regard to real property with complete disregard of the conduct rules. There is material on record that though the rules required the accused to take prior permission to acquire properties he has not done so and has acted all through these transactions prima facie in disregard of the rules. Similarly, the main bulk of evidence either produced by the prosecution or by the accused on the material items consists of persons closely related to the accused and as such profoundly interested in his cause or persons who were having involved transactions with the accused. Their evidence has eventually been accepted by the Court, may be because there was no investigation whatsoever which will cast a cloud on the claims of such witnesses, and may be because there was no other record to discredit those witnesses. However, we find that the evidence has been accepted and accepted in favour of the accused and it will not be proper exercise of our power, sitting in appeal against acquittal, to take any other possible view of the matter.

The main items on which the dispute is raised in the present appeal are the receipts to the tune of Rs. 45,025.14 as is shown by the chart produced during arguments by the learned counsel for the State. We have already noted that the Court has found Rs. 8000 as excess receipt in the hand of the accused. To bring home the guilt to the accused in the present appeal, therefore, it will have to be shown by the prosecution that the receipt so found by the Court should be reduced to a large extent at least by a figure of Rs. 25,000 to 30,000. Before we enter on this aspect, it may be observed that in the matter of arriving at the disproportion which is not statutorily laid down, a liberal view has to be taken by applying reasonable standards, particularly when the accounting liability of the accused spreads over a long period of years: see Pape Gowda Vs. State, . Hemanta Kumar Mohanty v. State of Orissa 1973 Cutt LT 361. and State of Maharashtra v. Ranchoddas Cri. Appeal No. 310 of 1972 decided at Bombay on 30th January /3rd February 1975. Therefore, unless we are in a position to substitute definitely a view about the want of receipt by the accused to the extent minimum of Rs. 25,000 to 30,000, even on the finding as it is, it will not be permissible for us to interfere.

[After dealing with the evidence and other aspects which are not material for the report in paras. 32 to 61, the judgment proceeds].

The total effect of this evidence should have been taken into account by the learned Judge which would have indicated, on the one hand, conscious selectivity of the accused in setting up his relatives who reside far away from the place of his usual avocation as obliging persons sending him monies, and on the other, the accused not himself being straightforward in any of the transactions. The necessity of entering into the transactions benami felt by the accused and its effect on the genuineness of the claim of the accused should have been kept in view. That would have indicated that the accused cannot be treated to be a person being a natural investor of money. If at all, it would be just the otherwise. No doubt, there had not been proper investigation, particularly with regard to the obliging sources set up by the accused available to him for drawing loans and the prosecution has to thank itself in several regards for making up the success of the accused. The totality of the evidence shows that the accused had, because of want of sufficient investigation and the somewhat mechanical case set up by the prosecution, been able to put forth sources indicating that he could receive about only Rs. 70,000 from witnesses like

P. W. 22 Ramayya

Rs. 32,000,

P. W. 23 Venkat Subayya

Rs. 5,000,

P. W. 38 Subbarao

Rs. 8,000,

P. W. 40 Laxminarayana

Rs. 7,000,

P. W. 69 Venkateshwarlu

Rs. 6,000,

C. W. 3 Lingaiya

Rs. 1,510,

D. W. 4 Guruswamy

Rs. 2,300,

P. W. 117 Satyam

Rs. 4,000,

P. W. 115 Brahmaniah

Rs. 3,700,

P. W. 117 Vengaiah

There are other items coming forth from P. W. 43 Kundanlal to the tune of Rs. 8,000 and P. W. 131 Vinayak of Rs. 2000. This is the financial foundation laid by the record mostly of the prosecution and added to it by the accused. As against this, it is indeed difficult to say with certitude that the prosecution had been able to establish its charge.

However, as a result of our finding on the particular aspects and items to which we have made a reference the prosecution in this appeal too must fail and the benefit of doubt should still be given to the accused. We have found that the claim of the accused towards receipt to the tune of Rs. 5116 as dowry, Rs. 1500 claimed from Pramila, Rs, 5000 claimed from Pulayya and Rs. 16000 claimed from Thakurdutt and Maniala Jailaxmi is not acceptable. That would reduce his receipt by these sums. However, he will get an addition of our finding approximately of Rs. 4000 on account of reasonable quantum of D. A. in his hand. The schedule made by the learned Judge with regard to assets and expenditure shows a double accounting in Appendix I with regard to items 14 and 15 and Appendix III with regard to items 15, 16 and 41. On a fair basis, the accused will have to be given the benefit of Rs. 3305 and his quantum of assets will fall by that sum. Thus, without entering upon the other aspects of the matter of the assets and expenditure and on the basis of the findings to which we have reached about the disputed items, we have a disproportion roughly of about Rs. 11,000. That cannot be said to be a disproportion to bring home the guilt of the accused. Upon the discussion we have made, the accused in our view, is entitled to benefit of doubt and nothing more. Though we are rejecting the appeal, we make it clear that we are affirming the acquittal of the accused not because the accused is entitled to any honourable or clean acquittal but because of reasonable doubt we feel about his culpability. It is for the Department eventually to take steps, if there be any permissible course, with regard to the conduct of the accused. With these observations, we dismiss the appeal.