R.S. Bindra, J.C.
1. By his judgment dated 31-7-1969, Shri P.N. Roy, Special Judge (II), Manipur, convicted the appellant, Manjunatta George Varaghes under Section 5(2) of the Prevention of Corruption Act, 1947, hereafter called the Act, and sentenced him to two years' rigorous imprisonment. The sum of Rs. 11,300/-seized from the convict by the Police was directed to be confiscated to the State. Having felt aggrieved, the convict has come up in appeal.
2. The facts of the prosecution case, shortly put, are that on getting some firm intelligence, Shri A. Nilamani Singh, Sub-Inspector of Police, rushed to the Tulihal airport and contacted Manjunatta George Varaghes who was one of the passengers to board the plane that was expected to fly shortly afterwards. The Sub-Inspector searched the baggage of Maniunatta George Varaghes and found currency notes of rupees one hundred each of the total value of Rs. 11,300/- inside a pillow forming part of that baggage. The money was seized and the accused taken into custody. After necessary investigations, the accused was hauled up under Section 5(2) of the Act.
3. The accused entered the plea of not guilty. He admitted in the statement made under Section 342 Cr. P. C. that the sum of Rs. 11,300/- had been recovered from his possession by the Sub-Inspector of Police, Nilamani Singh on 10-4-1963 from the airport just before he was to board the plane. His defence was that he had made a saving of Rs. 6,300/- from out of his salary during the period when he was employed in Manipur, that he was proceeding to his native State Kerala when he was arrested on 10-4-1963 that he required Rs. 10,000/- in connection with his own marriage and that of his sister, that he had borrowed Rs. 1,500/-from R.M. Thomas, Extension Officer, Jiribam, that three persons by the names of Issac Mathew, Section Officer in P.W.D., Manipur, K.C. Mathew, Surveyor in the P.W.D., Manipur and C.K. Jacob had respectively given him Rs. 2,000/-, Rs. 1,000/- and Rs. 500/- to be delivered to their parents in the State of Kerala, and that in this manner he had a total sum of Rs. 11,300/- with him on the date of his arrest. He examined five witnesses to support his defence version.
4. The learned Special Judge disbelieved the accused on the points that he had borrowed Rs. 1,500/- from P.M. Thomas, or that Issac Mathew, K.C. Mathew, and C.K. Jacob had given him any money for being delivered to their parents in Kerala, or that he had saved Rs. 6,300/- out of his earnings during the period of his employment in Manipur from 20th November 1958 to 31st March 1963. The Special Judge found that the accused was possessed on 10-4-1963 of money which was disproportionate to his known sources of income and that as such he was guilty of criminal misconduct as defined in clause (d) of Section 5(1) of the Act. He, therefore, convicted and sentenced the accused in the manner stated above.
5. Shri Manisana Singh, appearing for the appellant, urged two points during the course of arguments. Firstly, he canvassed that the Special Judge had gone wrong in rejecting the defence version. According to Manisana Singh, the statement of the accused reinforced by the defence evidence completely smashes the charge formulated against him. The second point raised by Shri Manisana Singh, which he pressed as alternative to the first submission, was that the sentence imposed upon the appellant is excessive and that the confiscation of Rs. 11,300/- is illegal.
6. Before proceeding to examine the merits of the first submission made by Shri Manisana Singh, I would like to reproduce the definition of the expression 'criminal misconduct' as given in Section 5(1) of the Act. According to clause (d) of that provision a public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
Sub-section (3) of Section 5 is highly relevant to the point raised by Shri Manisana Singh, It provides that in any trial of an offence punishable under Sub-section (2) 'the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption'. It is on the basis of this provision of law that the Special Judge has founded the verdict of guilty against the appellant. Therefore, the primary question that falls for determination is whether the prosecution has successfully established that the sum of Rs. 11,300/- is disproportionate to the known sources of income of the appellant. If the prosecution has succeeded in establishing that fact, the burden shall shift to the accused to account in a satisfactory manner the money found in his possession to displace the conclusion that it is not disproportionate to his known sources of income, or to prove that he is not guilty of criminal misconduct in the discharge of his official duty. If he fails to satisfy the Court on those two points, or either of them, it shall be open to the Court to presume that he is guilty of criminal misconduct and to base conviction on that finding alone. I now proceed to examine the parties' evidence to ascertain if the findings of fact reached by the Special Judge are sustainable.
7. There is no dispute on the points that the accused joined as a Surveyor in the Central Water and Power Commission in Manipur on 20th November 19513 and served in that Department upto 13-2-1960, and that his pay during that period was Rs. 115/- per month. With effect from 15-2-1960 he joined in the Census Office and remained attached to that office up to 20th June 1961. His pay during that period was Rs. 185/- per mensem for 12 months and Rs. 192.05 for the rest of the period. On 21-6-1961 the accused was transferred as Sectional Officer in the Tribal Welfare Department and he worked in that Department up to 31st March 1963. His total pay during the period he worked as Sectional Officer was Rs. 4,706.18. It is the contention of the accused that as Sectional Officer he had drawn Rs. 813.82 P. by way of travelling allowance and that that amount should be taken into account. He has also stated that as a Surveyor in the Central Water and Power Commission he had drawn a total pay of Rs. 1,705.26 and while working in the Census Office he had earned Rs. 3,025,62. All this income, including the travelling allowance of Rs. 813.82, aggregates to Rs. 10,704.69.
The contention of the prosecution that the accused did not have any other source of income was not disputed by the latter. The accused affirmed in his statement under Section 342 that he had remitted to his home (in Kerala) a sum of Rs. 1000/-during his stay in Manipur, that he had purchased a lady watch for his sister for Rs. 130/-, that he had purchased the plane ticket for Rs. 116/-, and that he had a balance of Rs. 268.69 in his pocket, at the time of his arrest, to meet the journey expenses. Another fact mentioned by him in that statement was that he had been spending only a sum of Rs. 50/- per month during his stay of 54 months in Manipur besides Rs, 200/- involved in miscellaneous expenditure. He stated further, on the basis of this data, that he had Rs. 7,800/- of his own inclusive of Rs. 1,500/- borrowed from P.M. Thomas, when he went to airport to board the plane on his way to Kerala and another Rs. 3,500/- entrusted to him by the three persons mentioned above.
8. C.K. Jacob and Issac Mathew, who were alleged to have respectively given Rs. 500/- and Rs. 2,000/- to the accused for payment to their parents, were neither summoned by the accused nor examined. It was submitted by Shri Manisana Singh that the whereabouts of Issac Mathew are unknown and C.K. Jacob is now living in Ethiopia, and on that basis he urged that their statements made during the departmental proceedings against the accused, and of which Exts. p/3 and D/4 are the copies, should be admitted into evidence under Section 32(3) of the Indian Evidence Act. I think this argument is without merit. Firstly, we have no dependable evidence that the whereabouts of Issac Mathew are not known, or that C.K. Jacob is actually now in Ethiopia. The fact that the accused did not mention their names in the list of witnesses in a way belies his contention in regard to their whereabouts. Taking the accused, however, at his word that C.K. Jacob is in Ethiopia, it was open to him to move the Court under Section 503 Cr. P. C. to issue a commission for his examination. No such step having been taken, it does not lie in the mouth of the accused to urge that the statement made by C.K. Jacob during departmental enauirv against him (accused) should be read as evidence in the present case under Clause (3) of Section 32 of the Evidence Act.
I also feel clear that that clause in terms is unavailing to the appellant. That clause makes the previous statement relevant only if that statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a sult for damages. In the statement Ex. D/4 all that C.K. Jacob, happened to state was that he had given Rs. 750/- to the accused for delivery to his parents in Kerala. That statement obviously is neither against pecuniary or proprietary interest of C.K. Jacob, nor, if true, it would expose him to a criminal prosecution or to a suit for damages. Therefore, this statement is not relevant under Clause (3) of Section 32 of the Evidence Act. It may be appropriately mentioned that though the case of the accused is that he had been given Rs. 500/- by C.K. Jacob, but the latter's version is that he had given Rs. 750/- to the accused. The discrepancy is too vital to miss notice.
9. The statement Ext. D/3 of Issac Mathew is on line with that of C.K. Jacob and so is not relevant for identical reasons. Further, Issac Mathew was not cited as witness by the accused, nor it is established that his whereabouts are not known. He is admittedly in India and so if the accused had any serious intention of examining him as a defence witness, he could have moved the Court for assistance in finding him out.
10. This brings us to the consideration of the statement made by D.W. 1 K.C. Mathew. He deposed that he had given Rs. 1,000/- to the accused in the year 19(53 for making the same over to his parent:; in Kerala. His pay in 1963 was Rs. 150/-or Rs. 160/- per mensem. He admitted in cross-examination that he used to remit money to his house some times regularly and at others casually, and that he had never opened any bank account. If he had been remitting money to his parents regularly, it passes comprehension how could he have saved RS. 1,00!)/-out of his small pay of Rs. 150/- a month, It is also difficult to believe that the witness could have kept Rs. 1,000/- in his house. If he had such a substantial spare money, he was expected to deposit it in the bank rather run the risk of its being stolen from his house. Moreover, this witness did not specify either the date or the month in which he had entrusted Rs. 1,000/- to the accused. His statement on the subject is that in the year 1963 he had sent Rs. 1,000/- to his parents in Kerala through the accused. It is too vague a statement to commend itself to the Court. Therefore, I hold, in agreement with the Special Judge, that this witness had perjured in stating that he had given Rs. 1,000/- to the accused, and that the reasons for it were that he and the accused both hail from Kerala and they appear to be friendly to each other. In Ext. D/3 it is mentioned that they are cousins.
11. P.M. Thomas, D.W. 5, deposed that in March 1963 he had lent Rs. 1,500/-to the accused as the latter required funds in connection with his own marri-age and that of his sister. The Special Judge has disbelieved the witness, and after close scrutiny of his statement I have reached the conclusion that the Special Judge had enough of justification for acting that way.
The witness admitted in cross-examination that neither the accused nor his sister had been engaged by the time he had advanced money to the accused. The accused affirmed in his statement under Section 342 Cr. P. C. that he required only Rs. 10,000/- for the two marriages and that he had Rs. 6,300/- in cash with him. According to P.M. Thomas, the father of the accused belongs to a middle class family and is possessed of 10 to 15 acres of land. In view of easy financial position of his father, the accused was not expected to finance completely his own marriage and also that of his sister. He could expect a substantial contribution from his father. The witness, I may point out. did not take any writing from the accused to safeguard his own rights respecting Rs. 1,500/-. He was frank to affirm that the accused is his intimate friend, and that he turned up in the Court to depose for the accused without having been summoned, though admittedly he was out of pocket by Rs. 50/- in the process. All these facts cumulatively prove in a demonstrable manner that P.M. Thomas entered the witness box not to depose to a factual occurrence but to help his 'intimate friend' out of a difficult situation, if possible. 1 agree with the Special Judge that the witness could not have saved a sum of Rs. 1,500/- out of his salary of Rs. 250/- per mensem for making a loan of that amount to the accused. The witness did not indicate in his statement whether he had kept Rs. 1,500/- in some bank or post office account or the sum was lying at his own residence. It remains to be said that the witness has his native place in Kerala, hardly 10 miles distant from that of the accused in the same State.
12. The outcome of the conclusions recorded above is that out of a total sum of Rs. 11,300/- recovered from his possession the accused has failed to account satisfactorily respecting Rs. 5,000/-. That finding leads to the inevitable conclusions that the accused had obtained Rs. 5.000/-by corrupt or illegal means or by abusing his position as a public servant and that he is consequently guilty of criminal misconduct within the meaning of Section 5(1) of the Act.
13. I feel equally convinced that the balance sum of Rs, 6,300/- seized from his possession also does not represent his honest earnings. Quite a substantial portion of it, if not the whole, falls, in my opinion, in the category of ill-gotten gains. The bare word of the accused from the dock that he had saved Rs. 6,300/- from out of his pay during 5 years posting in Manipur would not discharge the burden that lay on him in view of the facts established by the evidence. According to the statement of the accused, this large sum of Rs. 6,300/- had been lying at his house. He never opened a bank account. He admits he had remitted Rs. 1,000/- to his father in Kerala. If he had no apprehensions or guilty conscience respecting his possession of Rs. 6,300/-, he could have taken a draft from Manipur for some convenient station in Kerala. To carry this huge amount, besides another sum of Rs. 5,000/-, as part of one's baggage from Manipur, in the remote east of India, to the far distant State of Kerala in the south-west of India, was not without hazard; and if the accused decided to undertake such a risk there must be adequate reasons for it. However, the accused did not indicate any. Therefore, I feel safe in assuming that he did not take a bank draft fearing that if he took one his possession of a big amount in cash may leak out and that might land him in difficulties.
14. At any rate, the accused has failed to account for Rs. 5,000/-. In terms of Section 5(3) of the Act, the Special Judge was therefore, I think, right in concluding that the accused was guilty of criminal misconduct because the cash found in his possession was disproportionate to his known sources of income. It was pointed out by Supreme Court in the case of S.C.D. Swami v. State : 1960CriLJ131 , that the Legislature has advisedly used the expression 'satisfactorily account' in Section 5(3) of the Act, and that the emphasis must be placed on the word 'Satisfactorily'. The Legislature, the Supreme Court observed further, has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. I may add that Sub-section (3) also prescribes that once it is proved by the prosecution that the accused is in possession of pecuniary resources or property disproportionate to his known sources of income, the Court shall presume that the accused person is guilty of criminal misconduct in the discharge of his official duty unless the contrary is proved by the accused. The verb 'proved' has to be specially taken note of. Its import is obvious. It clearly negatives the contention, canvassed by Shri Manisana Singh, that the accused is bound only to offer, as in all criminal trials, a plausible explanation in support of his defence to earn an acquittal on a charge of criminal misconduct as defined in clause (d) of Section 5(1) of the Act. Hence, it was obligatory on the accused to prove by dependable evidence that the sum of Rs. 11,300/- seized from him and which sum has been held above to be disproportionate to his known sources of income, had been acquired by him by honest means. He having failed to establish that fact, the charge of criminal misconduct clearly stands proved against him. Hence, I confirm his conviction under Section 5(2) of the Act.
15, I am now left to determine whether the sentence of two years' rigorous imprisonment imposed on the accused is excessive and whether or not there is legal justification for confiscating the sum of Rs. 11,300/-. It was brought to my notice during the course of arguments that a departmental enquiry arising out of the possession by the accused of the sum of Rs. 11,300/- has already culminated in his dismissal from service, Taking that fact into consideration, 1 have reached the conclusion that a sentence of one year's rigorous imprisonment would amply meet the ends of justice. I order accordingly.
16. Section 517(1) of the Code of Criminal Procedure states that when an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any Property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. All the ingredients of this statutory provision, I feel convinced, are satisfied respecting the sum seized from the possession of the accused except to the extent I will presently mention.
The accused was tried in a Criminal Court and that trial has concluded; a cash of Rs. 11,300/- seized from the accused had been produced before the Criminal Court; that amount is now lying in custody of that Court; and it has also been held that the offence of criminal misconduct respecting that money had been committed. In face of these facts, the Special Judge was well within his rights to order confiscation of the amount. Shri Manisana Singh, however, contended that the procedural provisions bearing on the trial of a case contained in the Criminal Procedure Code alone have been made applicable by Section 8(3) of the Criminal Law (Amendment) Act to a trial under Section 5(2) of the Act, and not the provisions of the nature enacted in Section 517(3', of the Code. I regret my inability to accept that contention as sound in law. It is plainly mentioned in Section 8(3) of the Criminal Law (Amendment) Act that the provisions of the Code shall, so far as they are not inconsistent with that Act, apply to the proceedings before a Special Judge and for the purposes of those provisions the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors. It looks obvious that all the provisions enacted in the Code, unless they are inconsistent with any provisions of the Criminal Law (Amendment) Act, are made applicable to a trial held by a Special Judge. Hence, repelling the contention raised by Shri Manisana Singh, I hold that the provisions |of Section 517(1) of the Code do apply to la trial held by Special Judge, since they are not inconsistent in any manner with the Criminal Law (Amendment) Act.
17. It was not the contention of the accused that Rs. 5,000/- out of a total of Rs. 11,300/- belonged to him. Since it is the finding of this Court that this sum had been collected by the accused not in the manner stated by him, but by dishonest means, it has to be confiscated. However, there is some doubt in my mind on the point whether the whole of the balance amount of Rs. 6,300/- had been collected by the accused in the same manner or a part of it might represent his savings out of his pay. It cannot be said with complete certainty that no part of this amount may belong to the latter category. The benefit of doubt on this point, as in the matter of conviction, must go to the accused. Hence, I have decided to confiscate Rs. 5,000/- out of the sum of Rs. 6,300/-. The net result is that a total of Rs. 10,000/- shall stand confiscated to the State and Rs. 1,300/- shall be refunded to the accused.
18. As a result, the appeal fails except in the matter of reduction of sentence and the amount confiscated in the manner indicated above.