1976 Supreme(SC) 521

SUPREME COURT OF INDIA
P.N. BHAGWATI, A.C. GUPTA AND P.N. SHINGHAL, JJ.
Krishnanand Agnihotri, Appellant
Versus
State of M.P., Respondent.
Criminal Appeal No. 318 of 1971,
D/- 17-12-1976.
Advocates appeared
S. C. Manchanda, Sr. Advocate (Mrs. Urmila Kapoor and Miss Kamlesh Bansal, Advocates with him), for Appellant; D. Mookerjee, Sr. Advocate (Mr. H. R. Khanna, Advocate with him), for respondent.

Headnote:

Prevention of Corruption Act, 1947 - Sub-section (3) of Section 5 - Offence of criminal misconduct – Appeal against conviction – Claim of compensation - Whether in facts of present case the prosecution was justified in invoking the applicability of presumption contained in sub-section (3) of S. 5 of Prevention of Corruption Act, 1947 - Whether they at all attract applicability of presumption in sub-section (3) of S. 5 - Whether assists found in possession of the appellant were disproportionate as to give rise to the presumption contained in sub-section (3) of S. 5 - Whether they were disproportionate to his known sources of income - Appellant however sought to add certain other items of income to this list and since these were disputed on behalf of prosecution, we shall deal with them in seriatim - First item of income related to profit on sale of gun - Appellant claimed that he had purchased gun and this gun which was held by him under License was sold and that resulted in a profit which was liable to be included in determining the total income received by him - Trial Court did not accept this claim of appellant on the ground that he had not examined to whom the gun was sold – Moreover cartridges had been purchased by him bore gun bearing license which showed that he still had his gun and he had not sold - This conclusion of the Trial Court is patently erroneous since it overlooks the fact that when one gun is sold and another is purchased license which is issued in the name of holder of the gun remains the same and it is only the number of the new gun which is substituted for the number of the old gun in the license - Appellant sold gun and immediately thereafter on the next day purchased another gun of ww Greener make for the same amount and, therefore license continued to stand in his name with Greener gun being substituted for gun – Both these guns were bore guns and therefore purchase by the appellant of 30 cartridges for a 12-bore gun under license did not contradict the claim of the appellant that he had sold his gun - There is in circumstances no reason to reject the claim of the appellant in regard to this item and a sum of Rs. 300/- being profit arising on the sale of gun must be added to his income – Held, Court have already pointed out above that from was a teacher in Inter College and she was also giving tuitions which brought her an income of and she was also carrying on insurance agency business - She could therefore very well have sum in her bank account - Moreover it may be noted that even went away to reside separately from the appellant this bank account continued to stand in her name – Court do not therefore, think that the prosecution can be said to have established that the sum of Rs. 6,699/- standing to the credit of this bank account belonged to the appellant. And on the same reasoning we must hold that the National Saving Certificates standing in the name also could not be said to be an asset belonging to the appellant since there was no legal evidence led on behalf of prosecution which would establish definitely that the consideration for the purchase of these National Saving Certificates was provided by the appellant – Court come to the last two items, namely and furniture of the value and typewriter camera Godrej almirah and electric shaver etc. of the value - Theses articles were found in the course of the house search made and barring the radio which the appellant admitted to be his own asset - None of the other articles were admitted by him to be his property - Appellant stated on oath that the camera was presented by her brother when he returned to India from Vienna and the electric shaver was given to him as a gift by his friend - Typewriter and Godrej Almirah according to the evidence of the appellant, belonged whose house he was temporarily living at the time of the search - There is no evidence led on behalf of the prosecution to show that barring the radio, and of these other articles were purchased by the appellant, and in the absence of such evidence the statement made by the appellant on oath has to be accepted - Court accordingly add to the assets of appellant respect of the radio in respect of other furniture - It wil, therefore, be seen that as against an aggregate surplus income of Rupees which was available to the appellant during the period in question appellant possessed total assets worth Rupees assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small - It is less than ten per cent. of the total income - Court do not think it would be right to hold that assets found in the possession of the appellant were disproportionate to this known sources of income so as to justify the raising of the presumption under sub-section (3) of S. 5 – Court are of view that on the facts of present case the High Court as well as the Special Judge were in error in raising the presumption contained in sub-section (3) of S. 5 and convicting appellant on the basis of such presumption - Appeal allowed