The presumption under Section 5(3) of the Prevention of Corruption Act can only be drawn in a trial for an offence punishable under Section 5(2) of the Act, and the accused must be charged with having committed criminal misconduct within the meaning of Section 5(1)(a), (b), (c) or (d) of the Act.

B.P.Jamuar, J.

1. This appeal has been referred to a Division Bench by a learned Single Judge. The question raised in the appeal involves the interpretation of Sec. 5 of the Prevention of Corruption Act (Act II of 1947).

2. The appellant, Akhouri Inderdeo Prasad, has been convicted by the Special Judge of Gaya under Sec. 5, Sub-section (2) of the Prevention of Corruption Act (hereinafter to be called the Act) and sentenced to suffer rigorous imprisonment for five years as also to pay a fine of Rs. 1,000/-, and in default, to suffer a further period of rigorous imprisonment for one year. An order has also been passed under Sec. 517 of the Code of Criminal Procedure for the confiscation of a sum of Rs. 36,083-12-0 which was recovered from the appellants house. The appellant was a clerk at the Gaya Collectorate. He had been appointed on a salary of Rs. 20.00 per month, but in the year 1954 he was drawing a salary of Rs. 76/- per month. On the 27th April, 1954, a box containing more than Rs. 10,000.00 was stolen from the Nazarat of the Gaya Coliectorate. On the 29th April, 1954, the appellants house was a subject of a search in the presence of a Magistrate and a sum of Rs, 36,083-12-0, was recovered therefrom. It seems that the recovery of such an amount caused surprise on which account further enquiries were made. It was then found that a sum of Rs. 17,115.6-0 was in deposit in the name of the appellant at the State Bank at Gaya, a part of which was in fixed deposit and the remainder in savings account, and a sum of Rs. 16,921-1-0, was in deposit in the saving bank account at the Gaya post office in the name of the appellants minor children. This came to a total Rs. 70,120-3-0. The appellant has also a house in Gaya town and some land.

3. The appellant had given explanations in respect of these sums of money. With regard to the sum of Rs. 36,083-12-0 found in his house, the appellant gave the following explanation. He said that Rs. 754-12-0 was the personal cash of his wife which was kept in his wifes box. Rs. 239/- was meant for daily expenses and was in his own box, and Rs. 35,090.00 were in two tin boxes which Amount had been given to him by his father. This totalled Rs. 36,083-12-0. With regard to Rs. 17,115-6-0, which was in deposit in the State Bank at Gaya, he explained that it was in 1938 that he had deposited Rs. 12,000.00 an amount given by his father to him, and he continued to make further deposits till 1948. With regard to Rs. 16,921.1-0, he said that his father had sold ornaments belonging to two wives of his who are dead and had given the money to him, the sale of the ornaments having fetched a sum of Rs. 5,000, and his father had given him a further sum of Rs. 10,000.00.

4. The father of the appellant, whose name was Kamla Prasad, was born in 1875 and died in 1952 at the age of 77 years. From 1895 to 1901 he was employed in the Surguja Estate in the Madhya Pradesh, from 1902 to 1921, he was employed in the Gangpur Estate in Orissa, and from 1922 to 1942, he was employed in the estate of the Maharaja of Tekari in Bihar. It was accordingly the appellants case that his father was able to amass considerable amount of wealth by reason of his having served in these estates, and was therefore, able to give him all that money.

5. The learned Special Judge has not accepted the appellants explanations as to how he came to possess that amount of money as satisfactory, except with regard to a sum of Rs. 3,476.00, which had been earned in the shape of interest. He, therefore, drew the presumption of guilt under Sec. 5 (3) of the Act, and convicted the appellant under Sec. 5 (2) of the Act. It has to be examined whether the learned Judge was right in so doing.

6. Now the first information report in this case was drawn up on the statement of a Sub-Inspector of Police, Durjodhan Singh (P. W. 4) dated the 1st May, 1954, and the investigation was taken up by a Deputy Superintendent of Police. I shall state the substance of