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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1279 OF 2017 [ARISING OUT OF S.L.P.(CRL.) NO. 3595 OF 2014]

Vasant Rao Guhe                      …Appellant

VERSUS   

State of Madhya Pradesh      …Respondent

J U D G M E N T

AMITAVA ROY, J.

The appellant hereby seeks to overturn the judgment and

order dated 09.01.2014 rendered by the High Court of Madhya

Pradesh  at  Jabalpur  in  Criminal  Appeal  No.1573  of  2000

thereby affirming his conviction under Section 13(1)(e) read with

Section  13(2)  of  the  Prevention  of  Corruption  Act,  1988  (for

short, hereinafter to be referred to as the “Act”) and sentence to

undergo R.I. for two years with fine of Rs.20,000/- with default

sentence of R.I. of six months as recorded by the learned Special

Judge  (Prevention  of  Corruption  Act)  in  his  verdict  dated

07.06.2000 rendered in Special Case No.2/1996.

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2. We have heard Mr.  Harsh Parashar,  learned counsel  for

the appellant and Ms. Sakshi Kakkar, learned counsel for the

respondent.

3. The genesis of the prosecution lies in a complaint lodged

by one Khuman Singh, resident of Betul Ganj alleging that the

appellant,  who  at  the  relevant  time  was  holding the  office  of

Sub-Engineer,  Irrigation  Department,  Mahi  Project  Patelabad,

Jhabua,  by  abusing  his  post,  had  acquired  assets

disproportionate to his known sources of  income. FIR No.136

Dated  27.10.1992  was  registered  by  Inspector,  S.P.

Establishment,  Divisional  Lokayukt,  Office Bhopal  and on the

completion  of  the  investigation,  charge-sheet  was  laid  to  the

effect that during the check period between 1970 to 1992, after

adjusting the income and expenditure of the appellant, he was

found to have acquired, by applying corrupt and illegal means

while  acting as a public  servant,  assets valued Rs.7,94,033/-

which was disproportionate to his known sources of income and

had thereby committed an offence under Section 13(1)(e)  read

with Section 13(2) of the Act.

4. The Trial Court framed charge under the aforementioned

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sections of law, punishable under Section 19 of the Act to which

the appellant pleaded “not guilty” and demanded trial.

5. As  the  charge  would  disclose,  the  appellant  during  the

check  period  was  shown  to  have  earned  total  income  of

Rs.1,95,637/- and after accounting for an expenditure of 60%

thereof  towards  household  needs,  he  had  a  saving  of

Rs.79,045/-. However, having regard to his bank deposits and

his investments in plots and a house that he had built on one of

those,  he  had expended thereby an  amount  of  Rs.9,89,670/-

during the said period and thus was possessed of assets to the

tune of Rs.7,94,033/- which was disproportionate to his known

sources of income.

6. At  the  trial,  the  prosecution  adduced  oral  as  well  as

documentary  evidence.  Its  witnesses  included amongst  others

Inspector  A.J.  Khan  (PW6),  the  investigating  officer  and

Inspector,  Roop  Singh  Solanki  (PW2)  who  did  follow  up  the

investigation taking the baton from PW6. As the testimony of

these  two  witnesses  is  of  decisive  bearing  and  demonstrable

from the  analysis  of  the  evidence  as  embarked  upon  by  the

Courts below, reference thereto is indispensable.

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7. A.J.  Khan (PW6) stated that after the registration of  the

First  Information  Report,  he  conducted  the  preliminary

investigation  and  ascertained  amongst  others,  the  sources  of

income  of  the  appellant  during  the  check  period  and  most

importantly admitted not to have added his agricultural income

and  the  pay  for  various  periods,  before  handing  over  the

investigation to PW2.  

8. Roop Singh Solanki (PW2) who took over the investigation

from PW6 stated that particulars of the income and expenditure

for the check period were drawn up by him and were handed

over  to  the Superintendent of  Police,  Vigilance Commissioner,

Bhopal. According to him, the total income of the appellant from

pay during the check period was Rs.1,94,365/- which together

with  the  interest  on  the  amount  deposited  in  the  bank  was

Rs.1,95,637/-.  According  to  this  witness,  if  60%  expenditure

towards household necessities of the appellant and his family is

deducted therefrom, his saving would be of Rs.79,045/-. In that

premise, the expenditure of the appellant having been recorded

to  be  Rs.9,89,670/-,  the  charge  of  disproportionate  asset

unrelatable to his known sources of income stood established.

This  witness  in  his  cross-examination  however  admitted  that

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from records,  the annual agricultural  income of  the appellant

appeared to be Rs.1,25,000/- which for the check period would

amount  to  Rs.27,00,000/-.  He  conceded  further  that  the

appellant’s  salary for  the period October  1970 to  June 1974,

September 1979 to  October 1979 and March 1982 to  August

1990 had not  been accounted for  by  the  earlier  investigating

officer and admitted as well to have not added the same to the

income  of  the  appellant.  This  witness  testified  as  well  the

agricultural annual income of Rs.10,000/- from village Baghoda

which for  the check period was quantifiable  at  Rs.2,22,000/-

and thus his total agricultural income over the check period was

Rs.29,22,000/-.  He  admitted  as  well  that  this  agricultural

income and the omitted amount of pay, if added, there would be

no disproportionate assets qua the appellant.  

9. The  Trial  Court  while  assessing  the  evidence  on  record

with particular reference to the testimony of the aforementioned

two witnesses came to a categorical finding that the prosecution

version that the appellant had income of Rs.1,95,637/- during

the check period was patently incorrect. It referred to documents

on record and worked out for itself the pay which the appellant

was  supposed  to  earn  during  the  periods  omitted  by  the

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prosecution and computed the same to be Rs.1,93,208/- and

adding the amount so calculated concluded that the appellant’s

income  from pay  during  the  check  period  was  Rs.3,06,335/-

which together  with  interest  on  the  amount  deposited  in  the

bank  came  to  be  Rs.3,07,652/-.  It  deducted  60%  therefrom

towards  expenses  for  the  family  needs  and  determined

Rs.1,23,061/- to be his savings under that head.  

10. Similarly,  the  Trial  Court  referred  to  the  documents  on

record  produced  by  the  prosecution  with  regard  to  the

agricultural lands at Devbhilai and Baghoda villages in the name

of the appellant, his father and two brothers which disclosed an

annual income of Rs.1,35,000/- including the cost of agriculture

etc. Though the Trial Court initially was reluctant to accept this

figure  in absence of  any clarification offered by the appellant

albeit  the  evidence  to  that  effect  was  produced  by  the

prosecution, it eventually acted on the same and after deducting

60% therefrom towards  the  expenses/investments  was  of  the

view that annually an amount of Rs.54,000/- was available to

the appellant,  his father and the two brothers as agricultural

income.  The  Trial  Court  quantified 1/4th of  this  figure  in the

share of the appellant and computed it to be Rs.13,500/- per

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annum which for 22 years i.e. the check period was calculated

at Rs.2,97,000/-. According to it, thus at the end of the check

period  the  appellant  had  at  his  disposal,  from  agricultural

income and saving from pay Rs.4,20,061/-.

11. The  learned  Trial  Court  thereafter  adverted  to  the

expenditures  incurred  by  the  appellant  towards  purchase  of

plots and construction of house. It also did take account of the

deposits in bank. Referring to the sale deeds of the purchase of

two  plots  from  Tapti  Housing  Cooperative  Society  Limited  in

Multai  in  the name of  his  wife  and at  Gandhi  Nagar Colony,

Betul,  it  recorded that  those  acquisitions  had been made for

Rs.7728/-  and  Rs.18,000/-  respectively.  It  accepted  the

valuation of  the house constructed  over  the  land at  Betul  at

Rs.1,48,918/- and together with the amounts deposited in the

bank in various accounts computed the quantum of expenditure

during the check period to be Rs.6,35,259/-. Though as the Trial

Court’s  narrative  would  reveal,  that  in  defence,  the  appellant

had  produced  documents  in  connection  with  his  immovable

property,  those  were  not  taken  note  of  in  absence  of  any

clarification  in  connection  therewith.  The  learned  Trial  Court

was  thus  of  the  view,  having  regard  to  the  difference  in  the

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figures  representing  the  income  and  expenditures,  that  the

charge of acquisition of assets by the appellant disproportionate

to his known sources of income as levelled stood established and

consequently returned a finding of guilt under Section 13(1)(e)

and Section 13(2) of the Act and sentenced him as above.  

12. As would be evident from the rendition of the learned Trial

Court on the two major heads of income i.e. pay and agricultural

earnings, the learned Trial Court not only of its own embarked

on an inquiry to ascertain and compute the figures,  it wholly

resorted  to  inferences  in  calculating  the  pay  for  the  periods

omitted by the prosecution as well as in fixing 60% expenditure

from  pay  towards  household  needs.  Its  assessment  of

agricultural  income  of  the  appellant  to  say  the  least  is  also

wholly  presumptive  in  absence  of  any  basis  whatsoever  in

support thereof. This is noticeably in the face of the admission of

the  prosecution  that  while  levelling  the  charge  against  the

appellant of acquisition of assets disproportionate to his known

sources of income, it had not accounted for his income from pay

vis-à-vis  the  periods  omitted  as  well  as  from  agricultural

earnings. The figures ultimately arrived at by the Trial Court are

thus  patently  different  from  those  mentioned  in  the  charge

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framed against the appellant and on which he was put on trial.

In other words, the appellant was convicted by the Trial Court

on a charge different from the one framed against him and that

too  on  the  basis  of  calculations  made  by  it  by  applying

inferences and guess works.

13. The High Court in turn, while noticing the aspect that the

prosecution while laying the charge-sheet had not accounted for

the income of the appellant by way of pay for the aforementioned

periods as well as receipts from agricultural lands, reduced the

household expenditure from 60% to 50% thereby generating for

the  appellant,  savings  of  Rs.1,53,826/-.  Qua  the  agricultural

income as well,  the cost of  production and other investments

were scaled down to 50% but agreed with the Trial Court that

the  agricultural  lands  being  the  joint  family  property  of  the

appellant, his father and two brothers, he was entitled to only

1/4th share from the income therefrom at the rate of Rs.16,875/-

which was worked out to be Rs.3,71,250/- for the check period.

The High Court thus computed the savings from the salary and

the agricultural earnings to be Rs.5,25,076/-. It  endorsed the

price of the plots of land as accepted by the Trial Court but fixed

the value of the construction of the house at Rs.1,63,660.44/-. It

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then proceeded to decide on the charge by accepting the total

income of the appellant to be Rs.5,25,076/- and the expenditure

as Rs.6,11,121/-.  The other segments of  the expenditures,  as

accepted by the Trial Court, were affirmed by it. Based on this

computation, the High Court having found the appellant to be in

possession of  Rs.86,045/- which was in excess of  10% of his

income  from  known  sources  i.e.  Rs.5,25,076/-  affirmed  his

conviction and sentence as awarded by the learned Trial Court.

It however dismissed the appeal of the State seeking forfeiture of

this amount which the Trial Court too had declined.

14. In essence, thus the High Court fell in error in the lines

similar to that of the Trial Court, the only variation in approach

being reduction in the percentage of expenditure in household

exigencies and investments in agricultural yields. The vitiating

infirmity of speculative assumptions in favour of the prosecution

and  against  the  appellant  therefore  afflicted  its  eventual

determination as well.  

15. The  learned  counsel  for  the  appellant  has  insistently

impeached  his  conviction  and  sentence  contending  that  the

prosecution had utterly failed to adhere to and prove the charge

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levelled against him and thus the impugned judgments are liable

to be set aside, lest there would be travesty of justice. According

to the learned counsel, not only the Courts below have grossly

erred, in absence of any admissible basis, to calculate the pay of

the appellant for the periods omitted as well as his agricultural

income,  the  unfounded  assumption  of  60/50%  expenditure

towards household needs and field investments have rendered

the findings on his income from the known sources as disclosed

by the prosecution patently unsustainable in law and on facts.

This is more so as the relevant witnesses of the prosecution have

conceded that the income of the appellant from the pay for the

periods excluded as well as agricultural gains, if included, would

render the charge of disproportionate assets non est, he urged.

As on the basis of the materials on record, the prosecution had

failed  to  prove/establish  that  the  appellant  during  the  check

period  was  in  possession  of  pecuniary  resources  or  property

disproportionate to his known sources of income, he in law was

not called upon to offer  any explanation therefor and on that

premise as  well,  the  adverse  inference  drawn against  him on

that count is indefensible.  

16. Per contra, the learned counsel for the respondent/State

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has urged that the prosecution having proved the charge beyond

all  reasonable doubt as has been endorsed by the concurrent

findings of the Courts below, no interference with the conviction

and sentence is warranted.  

17. The  materials  on  record  and  the  rival  assertions  have

received our due attention. The accusations on which the charge

under Section 13(1)(e) read with Section 13(2) of the Act were

framed  against  the  appellant  have  been  set  out  hereinabove.

Admittedly, having regard to the ultimate figures as calculated

by  the  Courts  below,  the  charge  has  undergone  a

metamorphosis. This assumes immense significance in view of

the fact that no fresh charge had been framed on the allegations

for which the appellant was eventually convicted and sentenced.

Any adverse inference prejudicial to the appellant was thus not

available in law, he not having been confronted with the altered

imputations.  To  reiterate,  the  charge  for  which  the  appellant

finally has been convicted wears a new complexion different from

the one with which he had been arraigned at the initiation of the

trial. The appellant thus for all practical purposes was subjected

to a trial involving fleeting frames of accusations of which he was

denied prior notice. This is clearly opposed to the fundamental

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precepts of a criminal prosecution.  

18. Apart  therefrom,  both  the  Courts  below  indulged  in

voluntary exercises to quantify the pay of the appellant for the

periods excluded by the prosecution as well as his agricultural

income and that too premised on presumptions with regard to

his  possible  expenditures/investments  and  his  share  in  the

agricultural receipts, having regard to the nature of the charge

cast  on  the  appellant  and  the  inflexible  burden  on  the

prosecution to unfailingly prove all the ingredients constituting

that same, there could have been no room whatsoever of  any

inference or speculation by the Courts below. A person cannot

be subjected to a criminal prosecution either for a charge which

is  amorphous and transitory  and further  on evidence  that  is

conjectural or hypothetical. The appellant in the determinations

before the Courts below has been subjected to a trial in which

both  the  charges  and  evidence  on  aspects  with  vital  bearing

thereon lacked certitude, precision and unambiguity.

19. Section  13(1)(e)  of  the  Act  deserves  extraction  at  this

juncture:

“13. Criminal misconduct by a public servant

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–(1) A public servant is said to commit the offence of criminal misconduct, –  (a)……………. (b)…………… (c)……………. (d)…………… (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 for the time being applicable to a public servant.”

20. As ordained by the above statutory text, a public servant

charged of criminal misconduct thereunder has to be proved by

the prosecution to be in possession of pecuniary resources or

property  disproportionate  to  his  known sources of  income,  at

any  time  during  the  period  of  his  office.  Such  possession  of

pecuniary resources or property disproportionate to his known

sources of income may be of his or anyone on his behalf as the

case may be.  Further,  he would be held to be guilty  of  such

offence  of  criminal  misconduct,  if  he  cannot  satisfactorily

account such disproportionate pecuniary resources or property.

The explanation to Section 13(1)(e) elucidates the words “known

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sources  of  income” to  mean income received from any lawful

source and that such receipt has been intimated in accordance

with  the  provisions  of  law,  rules,  orders  for  the  time  being

applicable to a public servant.  

21. From the design and purport of clause (e) of sub-clause (1)

to Section 13, it is apparent that the primary burden to bring

home the charge of criminal misconduct thereunder would be

indubitably on the prosecution to establish beyond reasonable

doubt that the public servant either himself or through anyone

else  had  at  any  time  during  the  period  of  his  office  been  in

possession of pecuniary resources or property disproportionate

to his known sources of income and it is only on the discharge of

such  burden  by  the  prosecution,  if  he  fails  to  satisfactorily

account for the same, he would be in law held guilty of such

offence. In other words, in case the prosecution fails to prove

that the public servant either by himself or through anyone else

had  at  any  time  during  the  period  of  his  office  been  in

possession of pecuniary resources or property disproportionate

to his known sources of income, he would not be required in law

to  offer  any  explanation  to  satisfactorily  account  therefor.  A

public servant facing such charge, cannot be comprehended to

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furnish any explanation in absence of the proof of the allegation

of  being  in  possession  by  himself  or  through  someone  else,

pecuniary resources or property disproportionate to his known

sources  of  income.  As  has  been  held  by  this  Court  amongst

others in  State of Maharashtra  Vs.  Dnyaneshwar Laxman

Rao Wankhede1,  even in  a  case  when the burden is  on the

accused, the prosecution must first prove the foundational facts.

Incidentally,  this  decision was rendered in a case involving  a

charge under Sections 7, 13 and 20 of the Act.   

22. In view of the materials on record and the state of law as

above,  we  are  thus  of  the  considered  opinion  that  the

prosecution has failed to prove beyond all reasonable doubt the

charge of criminal misconduct under Section 13(1)(e) of the Act

and  punishable  under  Section  13(2)  thereof  against  the

appellant.  He  is  thus  entitled  to  the  benefit  of  doubt.  The

prosecution to succeed in a criminal trial has to pitch its case

beyond all reasonable doubt and lodge it in the realm of “must

be true” category and not rest contended by leaving it  in the

domain of “may be true”. We are thus left unpersuaded by the

charge laid by the prosecution and the adjudications undertaken

1 (2009) 15 SCC 200

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by the Courts below. The conviction and sentence, thus is set

aside. The appeal is allowed.    

…........................................J. [DIPAK MISRA]

…........................................J. [AMITAVA ROY]

…........................................J. [A.M. KHANWILKAR]

NEW DELHI; AUGUST 09, 2017.