1. These two appeals arise out of C.C. No. 40/77 on the file of the Special Judge for S.P.E. cases, Hyderabad, in which the appellant in the former was tried for an offence under S. 5(1)(e) read with S. 5(2) of the Prevention of Corruption Act and was convicted and sentenced to undergo imprisonment till the rising of Court and also to pay a fine of Rs. 40,000/- in default to undergo rigorous imprisonment for one year and nine months. The accused preferred the former appeal questioning the correctness of his conviction and also the sentence of fine imposed against him The State, represented by the Special Police Establishment, preferred the latter appeal complaining that the minimum sentence of one year's imprisonment provided for the said offence should have been at least imposed against the accused.
2. The prosecution case in short is that the accused while working as an Assistant Medical Officer, Class-II in the Railway Department was found to be in possession of Rs. 46,456.77 p. and could not satisfactorily account for the sources for acquiring such disproportionate assets. The prosecution case is confined to the check period from 1-1-1969 to 12-4-1972, on which later date, the residential quarter of the accused at Rajahmundry was raided and searched during investigation. The prosecution case proceeds on the basis that at the commencement of the check period i.e., on 1-1-1969, the accused was having assets of the value of Rs. 66,333.60 p. and at the close of the check period, he was found to be in possession of assets of the value of Rs. 1,42,773.11 p. and during that check period he acquired assets to the tune of Rs. 76,439.51 p. The prosecution case is that during the check period, his total income from known sources was Rs. 52,646.80 p., and his total expenditure is Rs. 22,664.60 Ps. leaving a saving of only Rs. 29,982.74 p. The prosecution, therefore, claimed that after deducting the aforesaid saving of Rs. 29,982.74p. The accused has come into possession of disproportionate assets to the extent of Rs. 46,456.77 p. for which he could not satisfactorily account. The Special Judge found the disproportionate assets to be worth Rs. 36,504.80 p.
3. The accused has given various explanations in proof on his defence which are detailed below. He was a Doctor in the Railway and private practice was not prohibited. Limited private practice is, in fact, permitted as can be seen from Ex. D-2 and Rules 205 to 209 of the Indian Railway Medical Manual. The evidence of DWs. 8 and 9 who are working as Railway Guards and the evidence of DW. 10 a grocery merchant of Telgi is that of independent witnesses and has been wrongly rejected by the Special Judge. The investigation proceeded on a wrong assumption that private practice was not permitted to the accused and the accused is, therefore, prejudiced in his trial. The charge-sheet is filed restricting the check period from 1-1-1969 to 12-4-1972. The accused joined the railway service on 1-12-1965. Unless his total income and expenditure ever since he joined the service in railways in taken into account, one cannot properly arrive at the actual assets in his hands as on 1-1-1969. In making the investigation limiting it to the check period, the accused, has been prejudiced. At the time the accused was married on 7-7-1957, to Smt. Shoba Das, DW-7, he was given a Cash dowry of Rs. 10,000/- and his wife was given 25 tolas of gold. DW-7 is an accomplished house wife. She was knowing knitting, sewing, painting, doll making, printing of sarees and screens, tailoring and embroidery. She was also good at preparing jams, jellies, bread and biscuits. She used to train persons who were approaching her and she was getting an annual income of Rupees 1,000/- on an average. They were having a small poultry and kitchen garden and besides meeting their needs, they were able to earn some money by selling chicken, eggs and vegetables. While augmenting their income they were able to save in the expenses for running the house. A cash of Rs. 6,000/- belonging to his maternal grand-mother and some gold jewels belonging to his sister Swapna Das were sent to him for safe custody by his father Dr. Indramohana Das (DW-1) respectively through Devaranjan Das (DW-3) and Dr. Babranjan Das (DW-4), brothers of the accused. DW-4 kept Rs. 6,000/- of his own money with the accused for safe custody. Rs. 4,000/- deposited in the United Bank of India, Malda, is the money belonging to DW-2, the mother of the accused not to the accused. Another Rs. 4,000/- belonging to the widowed sister-in-law of the accused was handed over to him for safe custody through DW-5, another brother the accused.
4. The major submission made by Mr. Padmanabha Reddy, learned counsel appearing for the accused is that the accused, while working as a Doctor in the Railways, was entitled to private practice or at least to a restricted private practice. The following facts become material to appreciate this submission. The accused studied M.B.B.S., at Calcutta during the years 1948 to 1954 and worked as House Surgeon in B. R. Sarkar Hospital during the years 1954 and 1955. He was appointed as an Assistant Surgeon Grad-II in the Southern Railway in the scale of Rs. 200-300. He joined the service at Hubli on 1-12-1955, till January 1957. From January, 1957, till October, 1962, he worked in the Railway Hospital at Telgi in Karnataka State. He was retransferred to Hubli where he worked till September 1963. During the period 1-6-1963 to 30-9-1964, he studied D.C.H, at Madras and was on earned leave from 1-10-1964 to 23-10 1964 on the expiry of which, he joined the Rajahmundry Health Centre on 4-11-1964 as an Assistant Medical Officer, Class-II. He was in charge of the hospital as can be seen from the evidence of PW-29 As Medical Officer in charge of the hospital, his duties and responsibilities are the same as for a Divisional Medical Officer which are detailed in Rule 204 of the Indian Railway Medical Manual. He was also functioning for Some time as Asstt. Medical Officer incharge of health unit whose duties and responsibilities have also been provided for under Rule 204. He not a Railway Doctor occupying any position in the administrative rank. Rule 205 provides for a restricted private practice and permits the Asstt. Medical Officers of the rank of the accused to collect some fees and they also provide how regarding such collections, the fees should at all be shared or how they should be shared in some proportion. Ex. D-2 is a circular dated 15-3-1978, issued by the Divisional Medical Officer, Hubli. It gives are 'sume' of the background in which a large number of vigilance case came to be filed against the Medical Officers. We are in particular concerned with cases of unauthorised practice. It appears from this circular that prior to 1966, the Doctors serving the Indian Railways were allowed unrestricted private practice. The Second Pay Commission recommended in 1966, that private practice should be completely banned and instead the Pay Commission recommended payment of non practising allowance. The Indian Railway Ministry, however, took a decision to permit the Doctors it do practice amongst the limited railway population and the Doctors should be paid a restricted non-non practising allowance. The categories of cases coming under the private practice have been detailed in this circular. A total reading to his circular discloses that while allowing such restricted private practice, the Government expected the Doctors to maintain accounts and to make over some portion of the income in favour of the Railway Department and the Doctors are expected to maintain accounts and diaries showing such income more relevant aspect of the circular is that private practice was, in terms, permitted.
5. DW-8 was working at Rajamundry as a Guard in the South Central Railway since 1962. He was the Vice-President of the S.C. Railway Employees' Sangh, Rajahmundry Branch from 1973 and prior to that, he was an Executive Member in that trade union. His evidence is that during the period, the accused was treating some members of his family and it was usual for DW-8 to pay amounts varying from Rs. 5/- for such medical visits made by the accused. DW-9 also worked at Rajahmundry as a Railway Guard from 1960 to 1974. He also gave evidence that the accused used to visit his house for treating his family members and he used to pay to the accused Rs. 2/- such visit. DW-10 is a merchant and a resident of Telgi. He was knowing the accused from 1957 in which year the Railway Department opened a Health Unit at Telgi. There was no other Doctor available at Telgi and in the surrounding areas. The evidence of DW-10 is that at the time the health unit was opened, the residents of the locality enquired of the Medical Officers whether the local people can also expect medical aid and a senior Medical Officer present on the occasion instructed the accused to given medical aid to the local people also DW-10 stated that the accused was found to be an efficient Doctor and, during those days, was earning more than Rs. 500/- per month from his private practice. DWs 8 to 10 are absolutely disinterested witnesses and have no reason to give any false evidence. The statements made by PW-36, the Investigating Officer can now be referred to. He took the stand that private practice was prohibited from 1962 and relies on the income-tax returns Exs. P-28 to P. 34 filed by the accused to say that the accused could not have earned any monies by private practice. The failure on the part of the accused to disclose this part of the income is equally attributable to a desire on his part to avoid the payment of income-tax and a desire on his part not to share any operate of such income with the Railway Administration. Exs. P. 28 to P. 34 cannot, therefore, be relied upon to discredit the evidence of DWs. 8 to 10 or to discredit the version of the accused that he was also earning some money from private practice. To a specific question put to him with regard to Ex. D-2, PW 36 took cover by saying that he did not see the circular at any earlier point of time and the accused did not show it to him. He made a statement that as the accused has not maintained any register showing the several patients he treated, the accused would not have received any monies from his private practice. The learned Special Judge proceeded on the footing that private practice was permitted till 1962, but that it was totally prohibited from 1962. Ex. D-2 referred to above does not reveal that at any point of time there was a total ban imposed by the Railway Department, prohibiting the private practice of the Doctors. The discussion made by the Special Judge in para 19 of is judgment reveals that he paid no attention to Ex. D-2 to Exs. P. 64 to P. 70 which are statements furnished by the accused in March 1973 before the charge-sheet was filed against him. In Ex. P. 66, the accused was in fact giving explanation that he acquired some of the assets from his private practice money and house-visits money. In Ex. P. 68 also he stated that he acquired some of the assets mentioned therein by utilising his salary private practice and other income. In Ex. P. 70 statement as well, he was indicating that some of the assets mentioned therein were acquired from the monies he earned by his private practice. These various statements should at least have provoked PW-36 to direct his investigation to the period, if any during which private practice was totally prohibited. He made no such effort and it is unfortunate that the accused should have been prosecuted at all for being found in possession of assets worth Rs. 36,504.80 p. which according to the prosecution, are disproportionate to the known sources of the income of the accused. If is equally unfortunate that the Special Judge should have ignored this basic material which is in favour of the accused and to have convicted him for the offence in question. The check period can be taken to the roughly 40 months. Any doctor, in charge of a Railway Hospital, could easily have made that extra income which works out to an average of about Rs. 900/- per month. The cases which have been relied upon by the Special Police Establishment are all cases concerning employees, who could not have earned any monies other than the salary and allowances payable to them. No useful purpose will, therefore, be served in making detailed reference to any of those cases. As has been observed by the Supreme Court in C. S. D. Swami v. State, : 1960CriLJ131 :
'The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service.'
The appellant in that case was working as a Director of Fertilizers and was found to be in possession disproportionate assets to the extent of Rs. 73,000/- in cash and Rs. 18,000/- by cheques for which he was not able to give any satisfactory explanation. Sajjan Singh v. State of Punjab, (1964 (1) Cri LJ 310) (SC) is again a case where the accused was a salaried ex-employee, being a sub-Divisional Officer in the Irrigation Department. The evidence established disproportionate assets to the extent of Rs. 53,000/- for which the accused therein could not give a satisfactory explanation. Rameshwar Prasad v. State of Bihar : 1971CriLJ1708 is again a case where in respect of an Assistant Goods Clerk working in the Railways, disproportionate assets found with the accused have not been satisfactorily accounted for and he was only a salaried employee. In Krishnanand Agnihotri v. State of M.P. : 1977CriLJ566 the excess of assets found with the accused was found to be 10% of the total receipts from his known sources of income and the Supreme Court held that having regard to the smallness of the excess, the presumption of guilt need not be drawn against the accused in that case. We are dealing in this case with an employee who, besides his regular salary, was also entitled to receive monies from private practice. The rigid approach which should be made in dealing with cases against employees depending only on salary cannot be made against categories of employees similar to the accused who are permitted not only to draw their salaries, but also to receive payment for permitted private practice. It is in this context that the grievance of the appellant that the prosecution fixed the check period from 1-1-1969 to 12-4-1972 and that it has prejudiced him assumes importance. By 1-1-1969, the accused had already been in service for 13 years and even according to the finding of the Special Judge, private practice was permitted for a period of six years i.e. till 1961. He did not record any finding as to what his assets were as on 1-1-1969. He merely accepted the version put forward in the charge-sheet that the accused was having assets of the value of Rs. 66,333-60 p. as on 1-1-1969. There is every probability that the extra amount of Rupees 36,504.80 p. would have been existing with the accused even by 1-1-1969. The failure on the part of the accused to have disclosed this income in his, income-tax returns to the Railway Department are not, by themselves, circumstances from which it can be inferred that he had come into possession of such assets otherwise than from his known source of income. The Special Judge is not correct in rejecting the explanation given by the accused that he was getting monies from his private practice as well. If the accused made an effort during trial to say that some of the monies found in his possession have come from various other sources, he cannot be convicted if some of the explanation given by the accused are found to be not true. In formulating his defence, the accused was faced with the dilemma of avoiding a possible consequential departmental action against him or an investigation by the Income-tax Authorities into his assets or a conviction for the offence in question. If, as appears to be true, the disputed amount is attributable wholly or in part to his private practice, he cannot be convicted for the offence in question, whatever may be the consequences he may have to face from the Railways or from the Income-Tax Departments. The accused has to be acquitted on the reasons given aforesaid.
6. There are few other points for controversy which have been adverted to only to make the record complete. The accused married DW-7 on 7-7-1957. Both of them belong to Kayastha community, though they belong to two different sub sects in that community. According to the statement of the accused, he was given a cash dowry of Rs. 10,000/- and DW-7 was given 25 tolas of gold when they were married DW-1, the father of the accused. DW-7, the wife of the accused and DW-6, the brother of DW-7 have also sworn to the fact that in fact this dowry amount was paid to the accused and the 25 totals of god were given to DW-7. The parties originally belonged to Bangladesh. They were uprooted from their homes in the wake of the partition of the country. The father of DW-7 was owning 32 to 35 bighas of land in Bangladesh and the evidence of DW-6 is that in the wake of partition, his father sold away the properties and migrated to West Bengal with cash and acquired properties concerning which he has filed various tax receipts of evidenced by Exs. 3-17 to D-24, The father of DW-7 was working As 'A' Grade Railway Guard. He died leaving DW-6, the only son and two daughters including DW-7. A payment of dowry of Rupees 10,000/- and a provision of 25 tolas gold to DW-7 when she was married to the accused when the accused was a qualified Doctor is very probable, having regard to the fact that both the parties belong to the Kayastha Community of Bengal. The prosecution wanted to make it appear that while the accused was working as a House Surgeon in the Hospital at Calcutta. DW-7 was working as a Nurse and The accused married DW-7 out of love and it was not an arranged marriage and the marriage was not even attend to by the other members of the two families. Certain witnesses belonging to West Bengal were examined during investigation, but they were not examined during trial. An adverse inference has therefore, to be drawn that this part of the prosecution story is not true. The evidence which the accused has been able to adduce has exclusively established that DW-7 never worked as a Nurse and the marriage of the accused with DW-7 is an arranged marriage and not a love marriage and it was attended by the members belonging to both the families and that the dowry was in fact paid. The explanation of the accused that Rs. 10,000/- in cash was given to him as dowry in 1957 and 25 tolas of gold were given to his wife at the time of the marriage appears to be true or at least probable and has, therefore, to be accepted - in the alternative as diminishing the disproportionate assets, if the earlier reason given for acquitting the accused is not to be accepted.
7. The other explanations given by the accused depend only on the evidence of D.W.-1, his father, D.W.-2 his mother and DWs-3 to 5 who are his brothers. They are naturally interested in coming to the succour of the accused and save him not only from his prosecution but also from any other consequential action that may be taken against the accused by the Railway Department or Income-tax Department. Their evidence has to be assessed in the context of the surrounding probabilities. There is no need for any of them to have entrusted their monies or jewels to the accused for safe custody nor is there any need for DW-2 to keep Rs. 4,000/- in the name of the accused. These explanations are unconvincing and the Special Judge is right in disregarding these explanations put forward by the accused.
8. The accused has come forward with an explanation that DW-7 was making on an average Rs. 1,000/- per year imparting tuitions in various arts in which she was accomplished. DW-8 has stated that he used to pay Rs. 10/- per month to DW-7 for teaching knitting work to his daughter. DW-9 made a vague statement that DW-7 used to get some remuneration for giving such coaching. Such evidence as is given by DWs-8 and 9 is very vague and does not establish the case put forward by the accused that his wife was making an annual income of Rs. 1,000/- by interesting herself in such teaching activity. DW-7, as the wife of the Railway Doctor, can be expected to have maintained her own dignity and it is not normal for people living infamiliar quarter to earn anything for imparting knowledge in such trade to the children of persons, living in the locality. There is no doubt some evidence to show that the accused was keeping a small poultry and was rearing a kitchen garden, but one cannot expect the accused to have made any income out of it. He might have raised some small poultry to feed the members of the family with the required number of eggs or he might have raised the kitchen garden as a hobby and would have utilised those vegetables for domestic consumption and would not have derived any noticeable income either out of the poultry or kitchen garden.
9. During arguments, Mr. Padmanabha Reddy, has only questioned the correctness of the finding given by the Special Judge regarding four specific items. An amount of Rs. 40/- evidenced by Ex. P. 2 and another amount of Rupees 216.35 P. evidenced by Ex. P. 21 have been disallowed as receipts, despite those two documents. Having regard to the two documents aforesaid, the accused must be treated to have explained satisfactory the receipt of these two amounts. According to the accused, he was once deputed to the Baroda Staff College and there he received Rs. 500/- and at another time he was deputed to Bangladesh where he received a deputation allowance of Rs. 950/- as evidenced by Ex. P. 53. As the accused is claiming these amounts consequent on his deputation, these claims appear to be reasonable and are, therefore, accepted and should go in reduction of the amount arrived at by the Special Judge as disproportionate assets. The total of Rupees 1706-35 P. covered by these four items will, therefore, have to be deducted from the total amount arrived at as disproportionate assets, after deducting therefrom also the sum of Rs. 10,000/- as dowry and the cost of 25 tolas of gold belonging to DW-7. The net amount should be arrived at in case the reasons given earlier for the acquittal of the accused are not to be accepted.
10. In the result, the conviction of the accused and the sentence imposed against him are set aside. Cri Appeal No. 1146/78 is allowed acquitting the accused. The fine amount, if any, paid is ordered to be refunded to the accused. His bail bonds are cancelled. Cri. Appeal No. 369/79 is, in consequence, dismissed.
11. Order accordingly.