D. Falshaw, J.
1. This is an appeal by Chaman Ram Uppal who has been convicted by a Special Judge under Section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to one year's rigorous imprisonment and a fine of Rs. 5,000/- or in default six months further imprisonment,
2. The Appellant served in the Central Public Works Department from 1933 to 1954 when he was suspended and later dismissed after departmental enquiry. The prosecution was then instituted against him, in which the two charges framed read:
Firstly that you Chaman Ram in your capacity as Overseer and Assistant Engineer in the Central Public Works Department, Government of India, during the period of your service from 1933 to 1948 habitually accepted and obtained for yourself gratifications as a motive or reward such as mentioned in Section 161, Indian Penal Code, and thereby committed an offence punishable under Section 5(2) of Act II of 1947, and within my cognisance.
Secondly that you Chaman Ram in your capacity as Overseer and Assistant Engineer in the Central Public Works Department, Government of India, during the period of your service habitually accepted or obtained for yourself or for other persons valuable things without consideration or for consideration which was inadequate to your knowledge from persons concerned in business transacted by you in your official capacity and that thereby reading the two charges in the light of Section 5(2) of Act II of 1947, committed the offence of criminal mis-conduct in the discharge of your duties punishable under Section 5(2) of the Prevention of Corruption Act, 1947, and within my cognizance.
3. It may be said at once that no attempt was made by the prosecution to establish any single instance or conduct covered by either of these charges and the case depended entirely on the amount of property admitted by the accused to have been possessed by him in the course of the departmental enquiry, the sums earned by him during the period in question, and some evidence to the effect that in his official capacity he had to deal with the passing of contractors' bills for payment for very large amounts.
4. It is not disputed that the total amount earned by the accused as salary during the period of his service from 1933 to the end of 1948 was Rs. 32,838/-. The property admitted by the accused to be in possession of himself or members of His family is contained in Exhibit P. B. which was apparently drawn up by the accused himself, it is in tabular form and reads:
Year of Value at the
Acqui- Time of
1. House In Chuna Mandl 1930 Rs. 10,000
2. Land at Shahdara 1942 Rs. 800
3. Shares purchased in 1943 1943 Rs. 3,000
4. Cash deposit in the
name of Mrs. Uppal at
Punjab National Bank
on March, 1945 1945 Rs. 20,000
5. Deposit of Rs. 75,000
each in the name of his
two sons 1945 RS. 1,50,000
Year of Value at the
6. Deposit of Rs. 5.000 in Acqui-
Time of the name each of
the sition acquisition
three daughters. 1945 Rs. 15,000
7. House on Todar Mal
Road 1940 Rs. 24,000
8. Current cash accounts
in bank, post office sav-
ings account in the
names of Shri Uppal,
his wife and children as
(a) In the name of Mrs.
Uppal in the post
Office 1932 Rs. 5,000
(b) In the name of Mr.
Uppal in Imperial Bank
of India, New
Delhi, Current A/C. 1949 Rs. 2,400
(C) In the name of Mr.
Kamal (son) in the
Post Office this
represents sale pro
ceeds of Post Office
purchased in 1938) 1951 Rs. 3,000
(d) In the names of
minor son (Neel and
Kamal) in Central Pilai
Bank, New Delhi Rs. 1,700
The total of these suras Is Rs. 2,34,900/- or, if items Nos. 1 and 8(a), which are dated before his joining service, are excluded, Rs. 2,19,900/-.
5. Since the accused admitted that he had no other source of income it is quite obvious that he could not possibly have saved between six and seven times the amount he drew as his salary during the period in question, and his explanation was that the immovable property was acquired and various deposits made in banks through the benefactions of a man named Rattan Chand who died about 1951. According to the evidence the father of the accused was a great friend of Rattan Chand during his lifetime, and when the father of the accused died, when the accused himself was about 10 years old, Ram Rattan brought him up although they belonged to different castes, the accused buying property for him in the names of the members of his family and making deposits in banks on their behalf.
6. It appears that since the name of Rattan Chand had emerged in the course of the departmental enquiry on investigations as to Rattan Chand's means and evidence had been led, including a statement of his nephew, that Rattan Chand is income from his land, part of which he sold from time to time, was only a little over Rs. 3,000/- per annum, and that at most he never had more than between Rs. 6000/- and Rs. 7,000/- in two banks (sic).
7. The main evidence regarding the benefactions of Rattan Chand was contained in the statement of Mr. Jagan Nath Uppal, an Advocate of Hoshiarpur and a first cousin of the accused, and since it is admitted that Rattan Chand had daughters and also nephew who gave evidence for the prosecution, it seems hardly likely that these persons who might expect to inherit from him would have permitted him to give away more than Rs. 2,00,000/- to the accused and his family without any protest even if he was in position to do so, which appears to me on the evidence to be so doubtful as to be incredible, and in my opinion this evidence was rightly discarded by the learned Special Judge, who came to the conclusion that Rattan Chand's name was used by the accused as a cover for his ill-gotten gain.
8. In convicting the appellant the learned Special Judge has relied on the above facts and the provisions of Sub-section (3) of Section 5 of the Prevention of Corruption Act which reads:
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 therefor shall not be invalid by reason only that it is based solely on such presumption.
9. On the facts I should have no hesitation in coming to the conclusion that during the course of his service the accused must have been obtaining money by improper means in the discharge of his duties either in the form of accepting bribes as contemplated by Section 161, Indian Penal Code, and mentioned in the first charge covered by Section 5(l)(a) or else In the manner contemplated in the words of the second charge, which is based on the words of Section 5(l)(b).
The question which remains however, is whether on this evidence he can be convicted of the offence of criminal misconduct under Section 5(2) of an Act which only came into force on the 11th of March, 1947. It was argued before me, as also before the learned Sessions Judge, that the Prevention of Corruption Act was not retrospective and that nobody could be convicted under the Act in respect of acts or omissions which took place prior to the 11th of March, 1947.
I have no hesitation in agreeing with the. view expressed by Gajendragadkar and Vyas, JJ. in Mulshankar Mangan Lal Vyas v. Government of Bombay : AIR1951Bom233 , to the effect that the offence of criminal misconduct by a public servant in the discharge of his duty having been created for the first time by the Act, acts done prior to coming into force of the Act cannot be made punishable under the Act and a prosecution under Section 5(2) of the Act of a public servant who had been suspended from his service prior to the 11th of March, 1947, must fail on the ground that the first essential ingredient of the offence under Section 5(2) would be wanting in the case.
10. The learned Special Judge, however, has relied and the learned counsel for the State has now sought to place reliance, entirely on the provisions of Sub-section (3) on the basis of mthe-argument that once the accused person is proved to be in possession of property or pecuniary resources for which he cannot account he can be convicted on this fact alone and it is quite immaterial when the money or other property for which he cannot account came into his possession.
Reliance in this connection was placed on certain observations of Chopra, J. in Criminal Revision No. 60-D of 1956, State v. Amolak Singh, decided on the 26th of March, 1957, Briefly the facts of that case were that 15 accused were sent up for trial before a Special Judge on charges under Section 5(2) of the Prevention of Corruption Act and Section 120B of the Penal Coda on the allegation that they were all employed in connection with Military Dairy Farm and that a conspiracy, in which they were jointly engaged for quite a long time, came to light in June, 1953.
The conspiracy was to adulterate the milk in the distribution of which they were engaged, and to enrich themselves out of the proceeds of selling the milk they dishonestly obtained in this way. The prosecution relied to a great extent on the evidence of a member of the conspiracy who was made an approver, but the learned Special Judge did not find that the evidence of the approver was sufficiently corroborated and discharged the accused. The State filed a revision petition selecting 5 out of the 15 accused as respondents.
Against one of these, Amolak Singh, it was alleged that in July, 1947, he purchased a house at Meerut for Rs. 27,000/- in the name of his wife although up to 1947 his pay was only Rs. 104/- per mensem. This evidence was re-jected as corroboration by the Special Judge partly on the ground that 'the property was acquired before the relevant period. This argument was rejected by Chopra, J, on the ground that the respondent was serving in the Department at the time when the property was acquired and the acquisition was disproportionate to his known sources of income and that therefore some presumption might arise under Sub-section (3).
11. This, however, is very different from the state of affairs in the present case, since the evidence in question was merely being relied on as corroborating the likelihood of a specific accusation of dishonest conduct which was being made against the accused, and in any case the learned Judge was merely giving grounds for ordering a further investigation into the case and was not giving by any means a final decision.
12. In my opinion the charges framed in the present case are wholly misconceived and illegal, since the period during which the accused was alleged to have enriched himself by improper means was fixed as being from 1933 to 1948, and to my mind there is no doubt whatever that he could not legally be charged either with habitually taking bribes or otherwise acquiring property by abusing his official position under the Prevention of Corruption Act with regard to any period before the 11th of March, 1947. This is quite a separate point from whether, even if a proper charge had been framed relating to his conduct subsequent to the 11th of March, 1947, the presumption to be raised under Sub-section (3) of Section 5 could be raised with regard to money and property acquired by him before the 11th of March, 1947,
13. It seems to me a most extraordinary thing that, since it is admitted that the accused remained in active service until he was suspended in November, 1954 the case was not brought on the basis that he had been habitually taking bribes or otherwise enriching himself between March 1947 and November 1954, and I wondered why the end of 1948 was selected by the prosecution as the terminating point of his misconduct. However, the reason for this extraordinary state of affairs emerged in the course of the argument of the learned counsel for the State, who frankly admitted that the only evidence of any improper acquisitions of property by the accused was contained in the statement Exhibit P. B which came from the accused himself, and that after 1948 the property accumulated by the accused, so far from being increased, began to disappear rapidly as a result of heavy demands for income-tax and other causes,
14. A study of the table Exhibit P. B. would show that only two items, 8(b) and 8(c) are shown as acquired after 1947. One of these is a sum of Rs. 2,400/- deposited in the New Delhi Branch of the Imperial Bank of India in 1049 in the name of the accused and the other a sum of Rs. 3,000/- in the name of a son of the accused deposited in the post office savings bank in 1954, No date is given regarding item 8(d), Rs. 1.700/-, in the Central Pilai Bank, New Delhi, in the names of the two sons, and even in respect- of the sum of Rs. 3,000/-, deposited in the post office in 11954 it seems clear that the real acquisition in this case was in 1938 since the amount represents the sale proceeds of post office savings certificates purchased in 1938. Thus the only item which can be said to be proved to have any reference to the period regarding which the charge could he properly framed is the sum of Rs. 2,400/- deposited in the imperial Bank of India, New Delhi in 1949.
15. There seems to me to be no doubt that the accused could not legally 11th charged of any offence punishable under Section 5(2) of the Act relating to the period before 11th of March, 1947 and in the circumstances it seems to me also that it is not possible for the prosecution to rely on the acquisition of property or money before the 11th of March, 1947, as proof of the acceptance of bribes or other acquisition of property by. abuse of official position after that date. We are thus left with the single item of Rs. 2,400/- deposited in a bank in 1949 and this cannot possibly by itself be regarded as proof of the offence covered by Sub-section (l)(a) and (l)(b).
16. It was argued on behalf of the State that if evidence of acquisitions of money or property before 1947 were to be excluded as evidence raising a presumption under Sub-section (3) many persons like the accused, who had steadily enriched themselves throughout their careers as public servants, would be liable to escape the penalty when prosecuted under Section 5(2). This may be unfortunate, but I cannot see how that fact affects the legal position.
As a matter of fact I would not go so far as to hold that under no circumstances can evidence of improper acquisitions prior to 1947 be relied On as raising a presumption under Sub-section (3) where ther is also evidence of subsequent improper acquisitions relating to the period after March, 1947, regarding which a Government servant could be properly prosecuted. All I am holding is that where, as in the present case, there is virtually no evidence of any acquisitions after the Act came into force, previous acquisition cannot be relied on as raising a presumption of habitual corruption during the period regarding which the charge could legally be brought.
In other words if a Government servant had been systematically corrupt up to March, 1947 he must be regarded, to use a colloquialism, of having got away with it, as far as any prosecution goes unless some specific act falling under Section 161, Indian Penal Code, can be proved against him, and evidence of previous corruption cannot be regarded as proof of habitual corruption after March, 1947 though possibly, if habitual corruption is proved on the basis of Sub-section (3) regarding the period after March, 1947, evidence of previous corruption might be regarded as furnishing same corroboration. On the other hand if proof of acquisition of property after March, 1947 is available it seems to me that it would be unnecessary to rely on evidence regarding the previous period.
17. As it is, in my opinion, the charges relating to the period from 1933 to 1948 appear to me to have been illegal and misconceived, and even if the charges could be regarded as legal relating to the period from March, 1947, to the end of 1948 there is no sufficient evidence regarding this period of any disproportionate acquisitions of property which could raise a presumption under Sub-section (3). I accordingly accept the appeal and acquit the accused.