1. The accused/appellant has directed this appeal against the judgment dated 17.09.97 rendered by I ADJ and Special Judge. Indore in Special Case No. 01/94, thereby convicting the appellant for the offence punishable under S. 5(1)(e)/S. 5(2) of the Prevention of Corruption Act, 1947 (for short, 'the Act') and awarding the sentence of one year R1 and Rs. 60,000/- fine, in default of payment of fine. further imprisonment of three months.

2 Briefly stated the case of the prosecution is that the appellant Subhash Kharate was appointed as Forest Ranger in the year. 1960 in the Forest Department• of the State" Government After' undergoing a training he was appointed on the regular post of Forest Ranger in the year, 1962 Thereafter. he continued in, service and promoted as Sub' Divisional officer (Forest) and posted at vari9us places in the Forest Department During his posting at Dhar on 14.09.87. Collector. Dhar wrote a letter Exh.P/62 to the Superintendent of Police (Special Police Establishment) Lokayukta Sanghatan. Indore, stating there in that the accused/appellant has acquired some immoveable properties within 'the district which in his opinion, arc in excess of his known sources of income. On the report of the Collector, Special Police Lokayukta Sanghatan. Indore ,investigated the matter and found •that 'agricultural lands purchased by the appellant in Dhar district are not' falling under the definition of disproportionate properties as defined in the Act but during the investigation. it was found that the appellant on 17.08.73 purchased a plot situated in Manoramaganj. Indore and, thereafter constructed a house thereon worth Rs. 1,50,000/-. According to the prosecution, this plot was purchased benami by the appellant in the name of his wife Smt Sarla Kharate and the appellant has not given any explanation for the sources of funds invested in the construction of the aforesaid house at Manoramaganj, Indore. The Police Establishment Lokayukta Sanghatan: Indore, on the aforesaid investigation registered Dehati Nalishi Exh. P/59 against the appellant and on completion of investigations an offence under Sections 5(1)(e)/S. 5(2) and Section 13(1)(e)/S. 13(2) of the Act was registered. 111e accused/appellant was taken into custody and ehallan was filed against the appellant in the Court of Special Judge, Indore.

3. On the basis of the evidence collected by the prosecution: learned Special Judge, on consideration framed charges against the appellant under Section 5(1)/S. 5(2) of the Act and in the alternative a charge under Sections 13(l )(e)/Section 13(2) of the Act was also framed. The accused/appellant denied the charges and prayed for trial

4. At the trial the prosecution examined five witnesses and produced documents Exh. P/1 to P/64. The appellant/accused in his defence examined six witnesses and also filed documents Exhs. D/1 to D/9.

5. Learned trial Judge, on appreciation of evidence found the appellant guilty for the offence and sentenced him as indicated above. Aggrieved by the Impugned judgment of conviction and sentence the appellant has filed - this appeal.

6. The counsel for the appellant submitted that it is not in dispute that disputed house situated at Manoramaganj, Indore was purchased, in the name of Smt. Sarla Kharate. wife of the appellant. As such initial burden lies on-the' prosecution to prove that the, said house was purchased benami by the appellant in the name of his wife if he Counsel for the appellant submitted that fronnhe evidence of the prosecution the fact of 'benami' purchase is not established. as such 'the appellant is not required to give any explanation for the source of the funds utilized for the purchasing of plot and the construction of the said house.

The counsel submitted that even if it, is considered that a presumption under S 5(3) of the Act arises against the appellant to "give explanation for the availability of funds. the accused/appellant, for his evidence has discharged the burden