Andhra HC (Pre-Telangana)
R. Vithaleshwar Rao vs State Of Andhra Pradesh Represented By ... on 11 October, 2007
JUDGMENT G. Yethirajulu, J.
1. This Criminal Appeal is preferred by the accused against the judgment dated 4-4-2001 in C.C. No. 82 of 1996 on the file of the Special Judge for C.B.I. Cases, Hyderabad, whereby the learned Judge convicted the accused for the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short 'the P.C. Act') and sentenced him to undergo Simple Imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer Simple Imprisonment for one month. He was also convicted for the offence under Section 168 IPC and sentenced to undergo Simple Imprisonment for six months and also to pay a fine of Rs. 500/-, in default to undergo Simple Imprisonment for 15 days. The accused was directed to undergo both the sentences concurrently.
2. The brief facts of the case are that the Inspector of Police, CBI, after conducting a thorough check during the period from 1.1.1974 to 2.7.1992 found that the accused was in possession of assets disproportionate to his known sources of income to a tune of Rs. 6,02,212.96. On verification, he was found in possession of assets to a tune of Rs. 9,53,922.96/- against his likely savings of Rs. 3,51,710/- and he could not explain the balance of Rs. 6,02,212.96, which was found after verification of all the records. After completion of the investigation, the Inspector of Police laid charge sheet. The accused pleaded not guilty of the charge. Therefore, the prosecution examined P.Ws. 1 to 31 and got marked Exs. P1 to P59. On the defence side, D.Ws. 1 to 14 and Exs. 1 to 18 were marked. After completion of the trial, the trial Court came to a conclusion that the prosecution proved the gilt of the accused for the charged offences beyond reasonable doubt by holding that the accused possessed properties worth Rs. 3,63,863.28 disproportionate to the known sources of income, and convicted and sentenced him as aforementioned.
3. The accused preferred the present appeal challenging the judgment of the leaned Special Judge by contending that the Hon'ble Judge failed to take into consideration, the additional income by way of sale of gold and silver articles, the income from family trade, income from tuitions conducted by his sons and income from Autorickshaws.
4. Sri C. Padmnabha Reddy, learned Senior Counsel for the appellant submitted that had the trial Court take into consideration the additional sources of income of the appellant by way of sale of gold and silver articles, family trade, tuitions conducted by his sons and service of Autorickshaws, there would not have been any amount disproportionate to the known sources of income. Therefore, the accused is not liable for conviction under both the offences and he is entitled to be acquitted.
5. The learned Public Prosecutor submitted that regarding the house rent on item No. 1 of the assets, the prosecution placed sufficient material to show the actual rents received by the accused and there is no contra material placed by him to disprove that the income shown by the prosecution is less than the income obtained through the rents received by the accused. He further submitted that the value of the property was correctly valued on the basis of the technical evaluation report covered by Ex.P5 by a qualified person and as the accused did not place any material to show that the house property fetches lesser value than the value fixed by the technical expert under Ex.P5, he is not entitled for reduction of the value of item No. 1 of the assets and to increase the income by adding the rents from the house. So far as the sale of ornaments is concerned, the learned Public Prosecutor submitted that the ornaments were not declared by the accused in the property statement. Therefore, the value of the gold and silver ornaments sold by him cannot be excluded. So far as the family trade is concerned, the accused did not get any licence from the Government to run the trade of manufacturing and supplying Silver & Gold Ornaments to various customers and as there is no record to prove as to who were manufacturing the ornaments and what was the turnover, and how much income they get from the family trade. In the absence of showing such details of income in the property statement, it is not desirable to take into consideration the said income from the alleged family trade. So far as the rents from Autorickshaws are concerned, only one Autorickshaw was in the name of his wife and other Autorickshaw does not belong to him. There is no material placed by the appellant to prove that both the Autos belong to his family and as the appellant did not show the possession of the Autos, and the particulars of income in the property statement, he is not entitled to get the income included for the purpose of consideration. Therefore, he is not entitled to get any more income to be added under the head income. As the prosecution placed sufficient material, the trial Court held that there are assets possessed by the accused disproportionate to the known sources of income. Therefore, the trial Court rightly convicted him. He also submitted that for failure of the accused to declare his source of income to the Government, an additional charge was also framed under Section 168 IPC and was convicted for the said offence. He, therefore, requested to dismiss the appeal by confirming the judgment of the trial Court.
6. In the light of the above contentions, the point for consideration is whether the prosecution proved the offences covered by the charges against the accused and whether his convictions and sentences are liable to the set aside?
7. The prosecution has shown 16 items under the statement of assets as on 2.7.1992 but the disputed item is only item No. 1 i.e., the house property situated near Badruka College, Kachiguda, Hyderabad. There is no dispute regarding the rest of the items. In the statement-III of the income, 13 items were shown but the disputed item is only item No. 11.
8. In addition to the above disputed items, the accused pleaded that the additional income from the sources as indicated above were not included under the head income.
9. The learned Counsel for the appellant submitted that if the additional incomes are included and if the value of the item No. 1 in the assets is reduced, there would not be any asset disproportionate to the known sources. So let us examine whether the findings given by the trial Court are sustainable regarding the disputed items. The value of Item No. 1 of the assets was estimated by the prosecution at Rs. 5,52,000/-, whereas the accused contended that the value of the property is only Rs. 3,40,350/- but the trial Court came to a conclusion that the value of the house property is at Rs. 4,96,800/-. The learned Counsel further submitted that the house was constructed during various periods under personal supervision of the appellant. Ex.P5 is the valuation certificate issued by the Executive Engineer, Central Division No. II, C.P.W.D, Hyderabad, mentioning that by taking into consideration all the factors regarding the construction of the house is arrived at an amount of Rs. 5,52,000/-. But the said document was not proved by examining its author and a person, who is able to identify the signature of the Executive Engineer, was examined as P.W. 4 to identify the signature only. As the contents of Ex.P5 were not proved, and as the accused was not afforded any opportunity to cross-examine the author of Ex.P5, the estimate made by the Executive Engineer cannot be relied on. After excluding Ex.P5 - document, there is no other material placed by the prosecution to prove that the house fetches an amount of Rs. 5,52,000/-. He further submitted that the accused Officer got himself examined as D.W. 14 narrating the manner in which the house property was constructed and the expenditure incurred by him for construction of the house and as per his estimate, the value of the property shall be not more than Rs. 3,40,350/-. If the defence version is accepted Rs. 2,10,000/- has to be reduced from the value of Item No. 1 and it is liable to be deducted from the value of the assets estimated by the prosecution. The trial Court dealt with the value of Item No. 1 from Para No. 8 onwards in the judgment and observed that the Executive Engineer valued the front side portion of the ground floor admeasuring 83.30 sq.mtrs constructed during the year 1973- 74 at Rs. 34,500/-, which comes to approximately Rs. 38.00 per square feet and the rear side portion of the ground-floor comprising plinth area of 104.77 sq.mtrs was constructed during 1980-81 at Rs. 96,500/- i.e., Rs. 86/- per square feet. The Executive Engineer valued the first floor of the house admeasuring 189.73 square meters and 21.48 sq.mtrs on the second floor constructed in 1985 at Rs. 3,21,000/- i.e. Rs. 119/- per square feet approximately. He valued the remaining area of the second floor, which was in progress by the date of the inspection at Rs. 1,00,000/-.
10. The learned Counsel for the appellant further submitted that though the accused admitted the value of the second floor, which was under construction, as estimated by the Executive Engineer, he disputed the value of the ground and first-floor on the ground that Ex.P5 is a bald report without vital details for proper evaluation of the building and that it lacks the details of depth of foundation, the quantity and quality of material like steel, cement, sand and their proportions, the material used in filling the foundations whether filled with sand or earth and the type of structure, whether it is with or without plinth beem. He further submitted that the Executive Engineer who inspected the premises and prepared Ex.P5, was not examined as witness and there was no opportunity for the accused to cross-examine him and another Executive Engineer was examined as P.W. 4, who has no knowledge about the nature of construction and value of the structure. P.W. 4 stated in the cross-examination that during 1993, he worked at Delhi and was not associated with the evaluation of the building mentioned in Ex.P5. Only the general specifications are noted in Ex.P5, but the details of costs of the components used in the construction of the building like cement, iron, timber etc are not mentioned in it. Except identifying the signature of H.P Meena, the author of Ex.P5 he has nothing to do with the valuation done by Mr.Meena. Therefore, the learned Counsel for the appellant submitted that Ex.P5 cannot be accepted. He further submitted that the search of the house was conducted on 2.7.1992 in R.C. No. 12 (A)/92. The First Information Report was registered on 2.9.1993. The house was inspected by the Executive Engineer on 7.7.1993. There is nothing on record to suggest that the CBI had asked the accused to stop further construction or additions to the house as it existed on 2.7.1992 and no panchanama or report to that effect was prepared by the Investigating Officer, who conducted search on 2.7.1992 indicating the stones of the building as on that date.
11. The accused was examined D.W. 14. In his evidence, he did not state that any constructions or additions were made to the house after the date of the search. D.W. 14 stated that he spent Rs. 20,600/- for construction of front portion of the ground floor in 1974 and Rs. 35,400/- for construction of the rear portion of ground floor in 1980. He spent Rs. 1,84,000/- for construction of first floor in the year 1985 and Rs. 1,00,350/- for laying roof on the second floor in May 1992 by spending a total amount of Rs. 3,40,350/-. The accused did not explain as to how he remembered the amounts spent during various periods of construction and whether he maintained any account for expenditure incurred by him for each period of construction and there is no other basis for the expenditure mentioned by P.W. 14 that the proportionate income was incurred by him for the construction of the building and he did not file any bills or vouchers or counterfoils of the cheques for purchase of the building material, payment of wages to various types of workers to prove that he spent only the said amount for the construction of the entire building.
He also did not file any passbooks and the amounts drawn for meeting the expenditure incurred for construction of the house. He did not inform to the department for the expenditure incurred by him every year for construction of the house. The trial Court, therefore, observed that there is no sufficient material to arrive at the actual amount that was incurred by the accused as on the date of inspection of the building conducted by the Executive Engineer. The Executive Engineer inspected the house some time prior to 7.7.1993 and at the time of inspection, when the accused represented that the building was constructed under his personal supervision, he had allowed 7 1/2% rebate for personal supervision. The trial Court, observed that it is not the case of D.W. 14 that he used inferior quality of material for the construction of the house being an employee working in the Indian Institute of Technology, therefore, he must have taken reasonable care in selecting the material for construction of the house. The trial Court, further observed that even if it is taken that C.P.W.D rates are on a little higher side and even after accepting that the accused had adopted economical methods in selecting and using materials, such saving will not exceed 10%, therefore, the trial Court gave a rebate of 10% i.e. Rs. 55,200/- towards reasonable margin of difference in the quality of material and their economical use, and accordingly, the trial Court estimated the value of the building at Rs. 4,96,800/- against the estimate of Rs. 5,52,200/- made under Ex.P5, which was adopted by the prosecution.
12. After going through the judgment of the trial Court and the material available on record, I am convinced that the reason given by the trial Court in support of its decision regarding the value of the item No. 1 of the assets is quite reasonable and acceptable. Though the learned Counsel for the appellant submitted that as the construction was made under the supervision of the appellant, the trial Court granted only 7 1/2 % rebate instead of 10%, therefore, he requested to apply 10% of the value of the building towards personal supervision, but the trial Court has already deduced 10% on the C.P.W.D rates in addition to deduction of 7 1/2% towards personal supervision. Therefore, I do not find any force in the submission made by the learned Counsel for further deduction of any amount. Therefore, the finding of the trial Court regarding the additional income on account of sale of gold and silver ornaments is confirmed.
13. D.W. 3, who is a Goldsmith, deposed that the father of the accused, who had a shop at Feelkhana area, Hyderabad, died in the year 1975. The shop rented by them was vacated after five years. After the death of his father, the accused used to order gold jewelry and silver articles for customers. The eldest son of the accused also used to bring the customers desirous of making gold and silver ornaments. He used to earn Rs. 1,000/- per month from the work entrusted by the accused and his son's income increased progressively from year to year. The accused and his son used to earn Rs. 1,000/- to 1,500/- per month depending upon the season as they were also purchasing stones and pearls besides gold and silver. In the cross-examination, he stated that he did not maintain any account regarding the amount received from the work entrusted by the accused. There is nothing in writing regarding the payments received by him. During the year 1975, he used to earn Rs. 800/- from Goldsmith work. He used to get making charges. The accused did not tell him the percentage, which he earns on the articles. He never inspected the shop of the accused.
14. D.W. 14, the accused, deposed that his family belongs to artisans of Goldsmith. His father used to have very good name in the trade till he died in February 1975. After the death of his father, he was forced to continue the family trade of manufacturing gold and silver articles and he was earning an average income of Rs. 2,000/- to Rs. 2,500/- per month. During the lifetime of his father, he was assisting him and after his death, he assisted his eldest brother R.S. Chakravarthy.
15. The learned Counsel for the appellant submitted that the accused continued the family trade after the death of his father in the year 1975 by getting the ornaments made through workers and earned Rs. 2,88,000/- towards commission. The eldest son of the accused continued the family trade from the middle of 1987 to the middle of 1992 and earned a total income of Rs. 1,50,000/-. In support of his contention the accused got examined D.Ws. 1, 3 and 10.
16. D.W. 1 is a retired Forest Officer, who told that the family of the accused used to continue the family profession of making gold and silver articles and he too got some ornaments made by the accused on two or three occasions but he does not how much income the family of the accused used to get from their occupation.
17. D.W. 3, who is another Goldsmith, deposed that the accused used to entrust the work to him and he used to get an income of Rs. 1,000/- per month and it progressively increased year after year and subsequently, the accused and his son used to earn Rs. 1,000/- to Rs. 1500/- per month depending on the season.
18. D.W. 10, who is the eldest son of the accused, deposed that he used to actively participate in making gold and silver ornaments and earned Rs. 2,500/- per month on an average, from 1987 to the middle of 1995, besides earning Rs. 30,000/- by introducing members to the chit fund companies during 1987 to 1993. He also deposed that he was earning Rs. 24,000/- per annum during that period by giving tuitions to commerce students of intermediate and B.Com.
19. D.W. 14 deposed that after the death of his father in the year 1975, he was forced to continue the family trade of manufacturing gold and silver articles with the assistance of P.W. 10 and he was earning Rs. 2,000/- to Rs. 2,500/- per month.
20. The trial Court observed that the accused did not file any licence nor any proof like payment of rent, electricity bill etc., to say that they were in possession of the gold shop. He did not file any accounts or any paper relating to the income, the list of customers, nature of customers etc. D.W. 10 in the cross-examination stated that he was only 8 years old when he was allegedly assisting his father in the family trade and 20 years old student in the year 1987. The accused did not state whether he filed any income tax returns or paid any tax to the above mentioned income. He did not intimate about the income to the department as required under the rules. Even if there is any income from the family trade, it is not an income received from known sources of income. Therefore, the income i.e., allegedly received from the trade is not an income received through 'known sources of income' as contemplated under Section 13 of the P.C. Act. Therefore, the income said to be received in the family trade cannot be taken into consideration in computing the income of the accused.
21. As seen from the evidence of D.Ws. 1, 3, 10 and 14, there is no consistency in the version given by them. The eldest son of the accused was 8 years old by the time his grand father died and there is no possibility of the boy inducting in to a family trade, continuing the education and chit fund business at a time in addition to conducting tuitions at such a tender age. There is not even a paper to show that the accused continued in family trade after the death of his father. He did not produce any document to show that his father was having any trade licence etc. Since there is no proof that the family was undertaking family trade, there is no consistency in the statement made by D.Ws. 1, 3, 10 and 14. In addition to that the accused failed to intimate the income to the Department as per the rules and there is no proof that the income was excluded in the income tax returns. In the absence of such material, the trial Court was right in holding that the amount said to be derived from the family trade cannot be excluded in the income of the accused. I, therefore, do not find any grounds to interfere with the order of the trial Court regarding the income from the family trade.
22. So far as the income from the sale of gold and silver ornaments is concerned, the accused produced Exs.D1 to D10 - bills and vouchers issued by M/s. Sri Krishna Jewellery Mart, Siddiamber Bazar, Hyderabad to a tune of Rs. 1,72,382.25. These bills were seized by the C.B.I officers from his house during the search on 2.7.1992. The accused got examined the Accountant in Sri Krishna Jewellery Mart as D.W. 4 and the exhibits were proved through him.
23. The learned Counsel for the appellant submitted that the bills were seized from the house of the accused during the search and the amounts covered by Exs.D1, D2 and D6 were paid through the cheques and the amounts shown in Exs.D4 and D10 were credited to the account of the accused, which is evident from the statement of the account marked as Exs.P12 and P13. Therefore, the genuineness of the transactions cannot be doubted.
24. The learned Public Prosecutor submitted that the accused never intimated about the transactions to his department as required under the Rules. In the absence of which, the amount cannot be treated as the income from known sources for the purpose of treating the said amount as the income of the deceased. He further submitted that since the accused was a public servant, having failed to intimate the income to the Department at the relevant time, he cannot now escape from the tentacles of Section 13(1)(e) of the Act by showing other legally forbidden source, as such, sources are outside the purview of Clauses (a) to (d) of Sub-section.
25. The accused submitted that Ex.P. 59 statement i.e. Forms I to VI was prepared on 20.7.1992 i.e. 18 days after the search of his house, but he did not intimate the alleged receipt of amount as required under the Rules. The trial Court observed that the income derived from the sale of gold and silver ornaments is not the income received from known sources in terms of explanation to Section 13 of the P.C. Act. Therefore, the accused was not entitled to include the said amount in computing his income.
26. The learned Counsel for the appellant submitted that nonfurnishing of the particulars of the income to the department while working as public servant may be an offence under some other law but for the purpose of the Prevention of Corruption Act, the income can be taken into consideration and it can be taken as lawful source for this purpose. The learned Counsel, in support of his contention, relied on a judgment reported in Dr. I.C. Chittaranjan Das v. State Special Police Establishment 1981 Cri. L.J. 495 (A.P), a learned Single Judge of this High Court held as follows:
The rigid approach which should be made in dealing with cases against employees depending only on salary cannot be made against categories of employees who are permitted not only to draw their salaries, but also to receive payment for permitted private practice. Thus where an accused who was working as an Asst Medical Officer in the Railways was allowed private practice to a limited extent, and by the time of the check period there was every possibility of the accused having earned by way of private practice but did not keep any separate register for the same as required under the Service Rules nor showed that income in the Income-tax, returns, the income earned by way of private practice could not on that ground be ignored while determining whether the assets in possession of the accused were disproportionate to his known sources of income.
27. Section 13(1)(e) of the P.C. Act reads thus:
A public servant is said to commit the offence of criminal misconduct-
(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.
Explanation. - For the purposes of this Section, 'known sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders fro the time being applicable to a public servant.
28. But the ruling of the Supreme Court in the following decision is otherwise. In P. Nallammal v. State of Tamilnadu rep by Inspector of Police 1999 (6) Supreme 516, it was contended that if a public servant is able to account for the excess wealth by showing some clear sources, which are not legally permissible, but not falling under any of the preceding Clauses of Section 13, he would be discharging the burden cast on him.
In response to the above contention, the Supreme Court observed as follows:
The above contention perhaps could have been advanced before the enactment of the P.C. Act 1988 because Section 5(1)(e) of the old P.C. Act did not contain an "Explanation" as Section 13(1)(e) now contains. As per the Explanation the "known sources of income" of the public servant, for the purpose of satisfying the Court, should be "any lawful source". Besides being the lawful source the Explanation further enjoins that receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of Section 13(1)(e) of the P.C. Act by showing other legally forbidden sources, albeit such sources are outside the purview of Clauses (a) to (d) of the sub-section.
29. The learned Counsel for the appellant submitted that as many of the transactions covered under Exs. D1 to D10 were prior to the Prevention of Corruption Act 1988 came into force and as there was no introduction of Explanation to Section 5(1)(e) of the old Act, those amounts have to be treated as the income to his known sources of income. The observation of the Supreme Court indicates that the arguments advanced by the counsel for the appellant can be considered regarding the transactions took place before the P.C. Act 1988 came into force. In the present case, Exs.D1 to D3 and D5 to D10 are prior to the new P.C. Act came into force and as those bills were seized at the time of search, I am inclined to treat the money under Exs.D1 to D3 and D5 to D10 as lawful sources of income and I am inclined to include them in the income of the accused at Rs. 1,72,382.25 and exclude an amount of Rs. 48,614/ - under Ex.D4, which comes to Rs. 1,23,768.25, which is the amount to be included to the income of the accused.
30. Regarding the rents from the house property, the learned Counsel for the appellant submitted that the prosecution had shown an amount of Rs. 1,41,900/- under Item No. 1 of the income as the source of income from the rents received from the accused but the accused claimed that he received Rs. 2,92,400/- towards income from the rents. In order to prove the rental income, the prosecution examined P.Ws. 10 and 11 and the accused examined D.W. 1 and himself as D.W. 14.
31. P.W. 10 deposed that he was a tenant in occupation of one of the two portions on the ground floor from the end of 1991 to April 1996 on a monthly rent of Rs. 650/-. His evidence does not show the rent was increased during the period of his occupation.
32. P.W. 11, who was an officer of Vijaya Bank, deposed that he was the tenant in the first floor of the house from May 1993 to 1996 initially on a monthly rent of Rs. 675/- for 12 month and subsequently Rs. 750/- per month. He further stated that the accused was staying in the front portion of the ground floor and let out all the remaining six portions of each floor. His evidence shows that there was no increase in rents for more than two years from May 1994 to June 1996. The rent derived from the two portions on the second floor is not relevant for the purpose of this case as they were constructed subsequent to the period during which check was conducted.
33. P.W. 31, the Inspector of Police, stated that the accused received an amount of Rs. 1,41,900/- by way of rents. In the cross-examination, he stated that the amount derived by him is basing on the statement given by the accused before P.W. 30 his predecessor-investigating officer. He denied a suggestion that the accused derived income from rent on two portions of the ground floor from 1.7.1981 onwards and two portions of the 1st floor from 1.1.1986 onwards.
34. P.W. 30, the Deputy Superintendent of Police, C.B.I., stated that when he examined the accused on 20.12.1993, he stated that he had received Rs. 1,80,000/- approximately from the rents on his house from 1982 to June 1992 and the accused did not contradict the statement even by way of suggestion though he was examined as D.W. 14 subsequent to the evidence of P.W. 30.
35. D.W. 14 in his evidence stated that he let out two portions of the ground floor from 1.7.1981 onwards for a rent of Rs. 350/- each. He had increased the rent of these two portions every year by Rs. 50/-. He also deposed that he lets out two portions of the 1st floor from 1.1.1986 on a monthly rent of Rs. 700/- each and increased the rent at the rate of Rs. 50/- per month every year. He further stated that he received a total rent of Rs. 3,02,000/- on two portions of the ground floor and three portions of the first floor. He further stated that he lets out the portions mostly to the bank employees and employees of BHEL, and as they were vacating the premises after two or three years, he did not recollect their names. The accused stated that the tenants were vacating the premises once in three years. Therefore, it is difficult for him to remember their names. The exhibits do not disclose whether the portions were occupied by the subsequent tenants immediately after vacation of the previous tenant or whether there was any gap in the year during which the previous tenant vacated and the subsequent tenant occupied the portion without any gap.
36. The accused examined D.W. 1, a retired Forest Officer, who stated that the accused leased out two portions on the ground floor, three portions on the first floor and the rent was approximately Rs. 400/- per month in 1981. His evidence is contrary to the evidence of P.W. 11, who stated that two portions only in the 1st floor were leased out. The trial Court, after considering the evidence given by various witnesses including the tenants and the accused, and by taking into consideration the earlier statement given by the accused, came to a conclusion that the accused received Rs. 1,80,450/- towards rent for the check period. After going through the entire material placed before the trial Court, I am of the view that the trial Court rightly worked out the amount and ultimately arrived at the figure, which is more than the amount stated by the accused, I, therefore, do not find any grounds to interfere with the same.
37. The learned Counsel for the appellant submitted that D.W. 14 stated in his evidence that in 1971, he purchased an Autorickshaw bearing No. AAT/880 in the name of his wife for Rs. 10,000/-. He plied the Autorickshaw for about 8 years by getting an average income of Rs. 600/- per month, after spending Rs. 180/- per year towards maintenance. He sold the Autorickshaw in the year 1978 for Rs. 10,000/- and purchased another Autorickshaw bearing No. AET/4414 in the year 1974 from M/s.Choudhry Brothers for Rs. 12,000/- and he plied the Auto up to 1978, and sold it away for Rs. 12,000/-. He used to get Rs. 600/- hire charges per month and used to spend Rs. 180/- per year towards maintenance charges. He further submitted that the trial Court did not take into consideration the income derived from the Autorickshaws and requested to include the said income as rent. Ex.D11 is the receipt in the name of the wife of the accused, said to be purchased on 18.11.1971 but Exs.D12 and D13 were in the name of some other persons, who have nothing to do with the accused. He stated that the Autorickshaw was purchased in 1971 and sold it away the same in 1978 for the same price. But he did not place any material to show whether he obtained any R.C book, engaged any drivers, if so, what are their names, whether he used to hire the Auto to the drivers or he himself used to engage the drivers to drive the Auto and the accused even did not notify the amount to the Government as the source of income. In the absence of any material proof regarding the source of income, the trial Court was right in excluding the said considering the income to be excluded in the income for the present purpose. I, therefore, do not find any force in the contention of the appellant's counsel and I am not inclined to include the alleged source of income from the Autorickshaw as the income for the purpose of computation.
38. So far as the offence under Section 168 IPC is concerned, it is an undisputed fact that the accused being a public servant indulged in trade. Therefore, the provisions of Section 168 IPC are attracted and the trial Court was right in convicting the accused for the offence under Section 168 IPC also.
39. In the light of the above discussion, I hold that even after deducting the amount derived by the accused on sale of gold and silver ornaments under Exs. D1 to D3 and D5 to D10 there is an excess amount even after computing lawful income derived by the accused. Therefore, even after taking into consideration all the aspects, the accused cannot escape from the liability under Section 13(1)(e) of the P.C. Act and Section 168 IPC.
40. In the result, the appeal is dismissed confirming the conviction of the accused under Section 13(2) read with 13(1)(e) of the P.C. Act for possessing disproportionate assets to a tune of Rs. 2,40,095.03 after deducting the value of the gold and silver ornaments, which were sold by the accused other than the known sources of income. Therefore, the conviction of the accused for the offence under Section 168 IPC is also confirmed. As the sentence imposed by the trial Court is minimum under both the offences, I do not find any grounds to interfere with the same. Hence, the sentences imposed under both the offences are confirmed.