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15. That takes us to the item of expenditure under the heading Miscellaneous payments through Cheques." The prosecution contended that an aggregate sum of Rupees 6688/- was expended by the appellant under this head and that was liable to be deducted from his total income for the purpose of making the required comparison. The Court substantially upheld this contention and accepted a slightly higher figure, namely, Rs. 7,095/-as the amount of expenditure on this account. The appellant conceded that out of the amount of Rs. 6,688/- a sum of Rs. 3,000/- sent to S. M. Tiwari, a sum of Rs. 111/- paid to Anandanand Dwivedi and a sum of Rs. 61/- paid to one Chaudhury, aggregating in all to Rs. 3,172/- represented expenditure incurred by him under this head, but challenged the other items which went to make up the balance. The first item challenged on behalf of the appellant was Rs. 486/- which was made up of three sums of Rs. 210/-, Rs. 116/- & Rs. 160/- paid to Sheela Devi. The explanation of the appellant in his evidence was that these three amounts had been paid by him to Sheela Devi in repayment of small loans taken from her. It is no doubt true that there is no documentary evidence to support this story of small -loans having been taken by the appellant from Sheela Devi but in the absence of any positive evidence on the side of the prosecution -which would disprove the claim of the appellant, we do not see any reason to disbelieve the evidence of the appellant on this point. Moreover, if this explanation were not to be accepted, we fail to see any other reason why such small amounts should have been paid by the appellant to Sheela Devi by cheques out of his banking account We may, therefore safely accept the explanation offered by the appellant and exclude the sum of Rs. 486/- from the expenditure of the appellant under this head. The next item of Rs. 500/- represented monies paid by the appellant to his father Babu Ram. The explanation of the appellant was that this amount represented the sale proceeds of Zamin-dari Abolition Bonds of his father sold by him, but this explanation does not appear to be genuine, because if Zamindari Abolition Bonds of his father were sold by the appellant, the sale proceeds should have gone into his bank account, but no credit entry in regard to this amount could be pointed out on behalf of the appellant and the sum of Rupees 500/- must, therefore, be treated as expenditure incurred by the appellant. The item of Rs. 180/- paid to Miss C. Anand, however, stands on a different footing and it must be excluded, since, according to the statement of the appellant in his evidence - which statement does not appear to have been seriously challenged in cross-examination - Miss C Anand was a lecturer in Kanya Pathshala in Mirzapur and was a colleague of Sheela Devi and Sheela Devi had collected the salary of Miss C. Anand and given it to the appellant and so the appellant sent this amount to Miss C. Anand by cheque. The next amount of Rs. 360/- represented monies withdrawn by the appellant by cashing a self-bearer cheque on his bank account and this amount was utilised by him for his house hold expenses and since household expenses were treated separately as. a distinct item of expenditure, this amount could not be included twice over as part of his expenditure and was hence liable to be excluded in computing the expenditure incurred by him. Then there was an item of Rs. 200/- paid by the appellant to his brother Sachhidanand. The case of the appellant was that Sachhidanand needed money and he, therefore, gave this amount to him as a loan which was repaid by Sachhidanand after about three months. We find that this case is supported not only by the statement of the appellant (vide paragraph 72) but also by the evidence of Sachhidanand D. W. 31 (vide paragraph 8). We see no reason to reject the testimony of the appellant and Sachhidanand D. W. 31. particularly when there is no evidence to the contrary led on behalf of the prosecution. Lastly, there were two items of Rs. 900/- and Rs. 200/- representing monies withdrawn by the appellant by self-bearer cheques from his banking account. The argument of the appellant was that these two amounts were utilised by him for household expenses and since household expenses were treated as a separate item of expenditure, they could not be deducted twice over again as part of his expenditure. This argument of the appellant may bo quite valid with regard to the sum of Rs. 200/-, because according to the estimate made by Shri Roberts, monthly expenditure of the appellant might be taken to be Rs. 163/- and, therefore, it is quite possible that Rs. 200/- might have been withdrawn by the appellant from his bank account for meeting the household expenses. But this argument does not appear to be valid so far as the sum of Rs. 900/- is concerned, because it is difficult to believe that the appellant should have withdrawn a sum of Rs. 900/- from his bank account for household expenses when the household expenses did not exceed Rs. 163/- per month. We would, therefore, reject the contention of the appellant with regard to the sum of Rs. 900/- and add that as part of his expenditure. The result is that under the head "Miscellaneous payments through Cheques" an aggregate sum of Rs. 4,572/- must be treated as expenditure incurred by the appellant.

27. That takes us to the next item of assets represented by the fixed deposit of Rupees 2,200/- in the name of Sheela Devi with A. G., U.P. Co-operative Society. This fixed deposit stood in the name of Sheela Devi, and, therefore, in accordance with the principle which we have discussed above, the burden of showing that the amount of the fixed deposit belonged to the appellant and not to Sheela Devi rested on the prosecution. Now, the prosecution not only did not lead any evidence to show that the amount of the fixed deposit in the name of Sheela Devi was provided by the appellant but the evidence on record clearly established that from 1950 to 1953 Sheela Devi was teaching in the Arya Kanya Inter College, Mirzapur and she was also giving tuitions and in addition, carrying on insurance agency business and she had, therefore, the necessary means to make the fixed deposit of Rs. 2,000/-. It is, in the circumstances, not possible to hold that the fixed deposit of Rs. 2,000/- in the name of Sheela Devi was an asset belonging to the appellant.

28. The next item of assets to which we must refer is the sum of Rs. 10.000/- lying in deposit in the name of Sheela Devi with Sharda & Co. So far as this sum of Rupees 10,000/- is concerned, the claim of the appellant was that it represented an amount received by Sheela Devi from her father at the time of her marriage in 1945. The appellant's case was that out of the monies received by Sheela Devi from her father at the time of her marriage she deposited a sum of Rs. 10,000/- with one Adiya Dutt Thakur in 1946 and this amount was returned to her by Adiya Dutt Thakur in 1958 by means of a cheque and this very cheque was deposited by her with Sharda & Co. and hence this amount belonged to her and not to the appellant. This case of the appellant was amply supported by the statement D-105 given by Adiya Dutt Thakur before the Income-tax Officer on 30th March, 1960 where he clearly stated that Sheela Devi gave him Rs. 10,000/- in June 1946 for safe custody and this amount was returned by him to Sheela Devi in April 1958 by means of a cheque drawn by his son on his bank account with the Central Bank of India, Allahabad Branch. This statement of Adiya Dutt Thakur was corroborated by the evidence of his son Gaya Dutt Thakur D. W. 29. B. P. Khare P.W. 10, a partner of Sharda & Co. also in his evidence supported this story of the appellant. We must, therefore, hold that the deposit of Rs. 10,000/- with Sharda & Co. belonged to Sheela Devi and not to the appellant. That is the reason why the High Court rightly gave credit for Rs. 10,000/- while including the assets standing in the name of Sheela Devi as part of the assets of the appellant.

29. There is also one further asset of Rs. 6,688/- representing the credit balance in the bank account standing in the name of Sheela Devi to which we must refer. This bank account stood in the name of Sheela Devi and hence the burden of proving that the monies in his bank account belonged to the appellant and Sheela Devi was merely his benamidar would be on the prosecution. When we turn to the evidence, we find that the prosecution has failed to discharge this burden. Beyond raising suspicion and doubt in the mind of the court, the prosecution has not been able to adduce any legal evidence of a definite character which would establish the benami character of this bank account. On the contrary, the evidence led on behalf of the appellant shows that Sheela Devi had means of her own. We have already pointed out above that from 1950 to 1953 Sheela Devi was a teacher in Arya Kanya Inter College, Mirzapur and she was also giving tuitions which brought her an income of about Rs. 3,900/-(vide the evidence of Tilak Raj D. W. 3 and Kali Prasad Srivastava D. W. 4) and she was also carrying on insurance agency business. She could, therefore, very well have the sum of Rs. 6,688/- in her bank account. Moreover, it may be noted that even after Sheela Devi went away to reside separately from the appellant, this bank account continued to stand in her name. We do not, therefore, think that the prosecution can be said to have established that the sum of Rs. 6,688/- standing to the credit of this bank account belonged to the appellant. And on the same reasoning we must hold that the National Savings Certificates for Rs. 65/- standing in the name of Sheela Devi also could not be said to be an asset belonging to the appellant, since there was no legal evidence led on behalf of the prosecution which would establish definitely that the consideration for the purchase of these National Savings Certificates was provided by the appellant.