Holding

Under s.5(1)(e) the prosecution must establish possession of disproportionate assets and the public servant’s known sources of income, after which the burden shifts to the accused to account for the assets on a pre‑ponderance of probability, and the State’s appeal was dismissed.

Summary

The respondent, a Range Forest Officer earning Rs.515 per month, was found in possession of assets worth over Rs.79,000 and was charged under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 for having assets disproportionate to his known sources of income. He claimed the assets belonged to his affluent father‑in‑law, who had entrusted them to him as a custodian. The Special Judge convicted him, but the High Court acquitted him, holding that the prosecution must disprove all possible sources of income and that the burden could not shift to the accused. The Supreme Court held that once the prosecution proves possession of disproportionate assets and the public servant’s known sources of income, the burden shifts to the accused to satisfactorily account for the assets on a balance of probabilities, not to the prosecution to eliminate every possible source. The Court further found that, on the facts, there was a preponderance of probability that the assets belonged to the father‑in‑law, and therefore the State's appeal failed. The appeal was dismissed, leaving the respondent acquitted.

Issues considered

Whether a public servant can be convicted under s.5(2) read with s.5(1)(e) of the Prevention of Corruption Act unless the prosecution disproves all possible sources of his income.
Whether, upon proof of possession of disproportionate assets, the burden of proof shifts to the accused to account for such assets, and what the nature and extent of that burden is.
Whether, on the facts of this case, the assets found were more probably those of the respondent's father‑in‑law, rendering a conviction untenable.

Legislation cited

Anti‑Corruption Laws (Amendment) Act, 1964
Indian Evidence Act, 1872s. 106
Prevention of Corruption Act, 1947s. 4(1), s. 5(1)(e), s. 5(2), s. 5(3)

Subjects

Prevention of Corruption Actdisproportionate assetsburden of proofpublic servantcriminal misconductSection 5(1)(e)Section 5(2)Section 106 Evidence Actappeal dismissed

Judgment

675

STATE OF MAHARASHTRA
v•
. WASUDEO RAMCHANDRA KAIDALWAR

May 6, 1981

[0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL ISLAM, JJ.]
B

Prevention of Corruption Act, 1947-Section 5(2) read with section 5(1}(e)-
Scope of.

Jnterpretation-"assets disproportionate to the known sources of income"
meaning of.
c
Evidence-Burden ofproof under section 5(2) read with section 5(l}(e)-On
whom lies.

The respondent was a Range Forest Officer on a monthly salary of Rs. 515.
In a search conducted by an officer of the Anti-Corruption Bureau, Rs. 26
thousand-odd in cash, savings bank accounts in the names of himself, his wife
and children, national savings certificates, postal saving certificates, gold and D
silver oranments, sale deeds of certain properties in the name of his wife, sister-in-
law and brother-in-law aggregating in all to over Rs. 79 thousand were discovered
from his house. On the allegation that he was found in possession of assets
disproportionate to his known sources of income he was charged with offence
punishable under section 5(2) read with section 5(J)(e) of the Prevention of
Corrouption Act, 1947.
E
The respondent pleaded that he led a frugal life and that secondly much of
the property found in his house belonged to his father-in-law. He added that his
father-in-Jaw was a pairokar of a Zamindar in the area, that two sisters of his
father-in-Jaw were the kept mistresses of the Zamindar, and the Zamindar gave
large amounts of cash and presents most of which were passed on to his father-
in-Jaw. At the time of his death, his father-in-law entrusted his minor daughter
and son to his care and instructed that his property should be divided among F
his three children equally and that therefore he was holding the property merely
as a custodian.

Rejecting the plea of the respondent a Special Judge convicted and sentenced
him under section 5(2) read with section 5(I)(e) of the Act.
G
On appeal a single Judge of the High Court acquitted him holding that the
prosecution had failed to discharge the burden of disproving all possible sources
of the respondent's income, that it was not possible to exclude the probability
that the property found in his possession could be the property left by his father-
in-law, and that mere possession of assets disproportionate to his known sources
of income would not be sufficient to bring home the guilt under section 5(1)(e) H
unless the prosecution further excluded all possible sources of income. The
High Court was also of the view that the changes brought a bout by the Anti-
676 SUPREME COURT REPORTS (1981] 3 S.C.R.

A Corruption Laws (Amen.!ment) Act, 1964 had the effect ofJimiting the presump-
tion of guilt arising under section 4(1) of the Act to an offence of criminal
misconduct spe~ified i~ _section S(J)(a) and (b) and not to that in section 5(1){e).

HELD: , The COnstru~tion ,placed by the High Court on sectiori S(l)(e) was
wrong in that it overlooked the fact that, by the use of the words "for which
the public servant cannot satisfactorily acquit", a burden is cast on the accused.
B ' [680 BJ
-- '·. ,·,.

Section 5(3) which now stood deleted, did not create an offence separate from
the one created by /section 5(1) bu( only raised a presumptioii of criminal mis·
conduct if he or any person on his behalf was in possession of pecuniary resources
or property disproportionate to his known sources of income which he cou1d not
siitisfactoriJy accoUnt. · OnCe the prosecution proves this fact the burden shifts
c on to the accused to prove the source of acquisition of such assets. [681 F-G]

• ,. Th~ Cxpr~Ssi-on "knowil sourCes Or in~ome" in the ·context of the section
means "sources known to the prosecution''. Secondly~ the onus placed on the
accused under the section was not to prove his innocence beyond reasonable
d_oubt ·bUt orily·· to establish a preponderarice of probability: To ·eradicate
th_e widespread ·corruption fn ·-public serviceS the legislature:· dispeD.sed with.
the Tule of evidence under section 5(3) and made possession b:Y a public
D sCrvaflt of assets disproportionaie to his income as one of the si>ecies of offences·
cif criminal misconduct by iriserting Clause (e) in section 5(1). [682 A-C] ·
r.-.·-· - -· ;·.. ·. .'' - , '· . ·,_ -- . . . . . , -
- The me·aning.to be assi£:ned·. to the expression ~'known sources of income~' 1
occurring· in section 5(t)(e) must be the sam~ as was given to· that expression· ia, -
Section 5(3) before its repeal, that is,· "sources known to· the prosecution"." So
-also the same meaning must be given to the words "for which ·a public servant)
E is unable to satisfactorily account 0 occurring in section 5(l)(e).' When clause (e)
.- uses the words ."if the public servant is unable to. satisfactorily account'~-- it is
iIDPlied thai the hui-den fs ori sUch public servant io -account for the soU_fceS for.
the .aCqulsition Of asSetS disproportionate to his iOcoine. :The lligh Court Wa:s;~
thefefore; ill error in h0Iding that· a_ public servant Charge'd for 1'3.ving .iQ. his-;
ppSsessioii.assets dispropcir1ionate tO his income for which he cannot satisfactorily
..,.., _acC:cuni cOuld not be convicted ·or ail offence under scction_5(2) read with :section
F 5(l)~e) Utlless· the p_ros~~ution dis~·io~eS all possible sources of income.' [682 D-F]_;-

.Sajjan Singh vc State of Punjab [1964] 4 S.C.R. 630 and V.D. Jhagan v. State
of U.P. [1966] 3 S.C.R. 736, referred to.
/ .
The expression "burden of proof" has two distinct· meanings: (I) the legal
burden, that is, the burden of establishing the guilt and (2) the evidential burden,
G that is~ the burden of leading evidence. Notwithstanding the general rule that
the burden of proof lies exclusively upon the prosecution, in the case of certain
Offeiices. the burden of proving a particular fact in issue rriay be laid bY law upon:
the accused. This burden is not so onerous as that which lies ori the prosecution
a·Dct is discharged by proof of a balance- of probabilities. To substantiate the
charge of CriIDioal misconduct under section 5(2) read with sectiOn 5(1)(e) the·
H prosecution must' prove (1) that the accused was a public st!rVant; (2) thC-·
nature -and extent of the pecuniary resources or property in r1is possession,
(3) his kno\vn sources of income, i.e. known to the prOs-ecution.; (4) "that such
-- ------ - --------------------------....,

MAHARASHTRA v. w. R. KAIDALWAR (Sen, J.) 677

sources or property were disproportionate to his known sources of income.~ ..Once .'A
thes.:: are established, the offence of, criminal misconduct under .. section 5(1) (e)
would be cOniPlete. The burden then shifts to the accuSed to substantially acCOun·t
for possession by.'birll of assets disproportionate to his income. :_The exiCilt 3:nd
nature of burden of proof resting·- upon the public sefvant canno{-be higher thin
establishing· his case by a preponderance of probability. [683 A-E]
. • . ' . - - .-:; . ' ~· . I

In the inst.int ·case' ihe ·High Couft. has plac~d i~ inipossible . burd~·n. On ·:the B
prosecutioti tb.disprove ·au possible sources of incOme· Which-were -withilt the- sPC- --:;:
cial knowledge of-thC accus::d. The prosecution cannot in the nature of things. be "
expected to know the affairs Of a public servant found in possession of resources
er property disp_fopOrtiOnate.to his krlowil. sources._of income that is his sal.iry,
·because these are matters specially within his knowledge. within 'the ·meaning or
,section 106 oftheE~idence Act. · -· ' ·

-The phrase "burden of proof" in section 106 of Evidence Act is clearly used
in th_e secondary sense, namely the duty of introducing evidence. The nature
and.extent of the burden" cast On th'e.accused is well settled. The accused is· not
bourid to prove his innocence beyond all reasonable doubt. AU that he need · d.o
·is t~ bring out a preponderance of probability.· [684 B] ··/
• ; ;.-, • ;• . ' ... \. . !. • ~

o~ the proved circumstances ther~ W3.s-·a'preponderance of probability 'that _D
the property found in the respondent's house could be the property left by' his ;_! •
. fath~_r-in-Iaw. · ~ere is overwhe;Iming evidencre on. reco~d' that, the 'respondent's
father-in-law was a man.of affiuent circumstances, being a paiorkar of a Zamindar
and that lie hid 3.mas:Sed considerable wealth~ more so because his two sisters were
the kept mistresses of the ·Zamiridaf.. On the death of the Zamindar his f<ithei--
in·law stayed with the ri:sp-Ondent. Also, 'the respondent"s father had a Jiquof shOp
besides forest ·contr3.cts. ·The f'°vidence led in the case was sufficieilt to create '.£. _
a doubt Whether :the respondent was in· possession :of assets disproportionate
to his known ·sOur<;eS of income. On the other hand there is preponderance
of probabilit:Y that-the-pr~perty in his possession belonged not to him, but io
his father-in law. [684 D-H]

',,, CRIMINAL-APPELLATB JURISDICTION: Criminal Appeal No: zi1
of-1976. F
Appeal by special leave from the judgment and order dated
the· 9th April, 1975 of the Bombay High Court (Nagpur Bench),
Nagpur in Criminal Appeal No. 134of ,1971.

M.C. Bhandare and R.N. Poddar for the Appellant. •
G
P. Govindan Nair, K. Ramavtar. and K.R. Choudhury for the
Respondent. ·,

. The J.udgmeni
-.'
of!he
' '
Court .was delivered 'by
'. . ' .•. , . ,)
H
. SEN~ J.' Tj:ie State Gcive;nment of Maharashtra has preferred
this· appear, by special . leave, against the . judgment of th~
678 SUPREME COURT REPORTS (1981) 3 S.C.R.

A Bombay High Court, reversing the judgment and sentence of the
Special Judge, Chandrapur and acquitting the respondent of an
offence under s. 5(2) read with s. 5(I)(e) of the Prevention of Corrup-
tion Act, 1947 (hereinafter called 'the Act').

The respondent, Wasudeo Ramchandra Kaidalwar, was a
Range Forest Officer, drawing a salary of Rs. 515 per month. On
B September 21, 1969, PW 71, Patwardhan, Inspector, Anti-Corruption
Bureau under authorisation from the Director, Anti-Corruption
Bureau, Bombay, carried out search and seizure at the residential
house of the respondent. The Inspector made a recovery of Rs. 26,870
in cash from an almirah, savings bank accounts in the names of the
respondent, his wife and children totalling to Rs. 12,588.35, national
c savings certificates worth Rs. 510, postal savings certificates worth
Rs. 184.25 in the name of his daughter, Nandini, savings bank
deposits with the State Bank of India and the postal savings certi-
cates in the name of his brother-in-law, Narayan, amounting to
Rs. 2,279.05, gold and silver ornaments, household effects etc. of the
value of Rs. 8,602.50, two sale-deeds in respect of two plots bearing
D Khasra Nos. 28/lK and 28/!Dh in Chandrapur purchased (I) in
the name of his wife, Smt. Sushila for Rs. 5,250 and (2) in the joint
names of his wife, Smt. Sushila and his brother-in-law, Narayan for
an amount of Rs. 21,210, papers relating to the building of a house
at village Gondpipri built in the year 1965 at a cost of Rs. 10,000.
E The petitioner was accordingly put on trial for having committed an
offence punishable under s. 5(2) read with s. 5(l)(e) of the Act,
being found in possession of assets disproportionate to his income.

The respondent abjured his guilt and denied the commission
of the offence. He pleaded that he was leading frugal life and all
F the property found during the search of his residential house belong-
ed to his father-in-law, Hanumanthu, pairokar of Raja Dharmarao,
Zamindar of Aheri Estate. He alleged that two of the sisters of his •
father-in-law were the kept mistresses of Raja Dharmarao and
enjoyed special favours from the late Zamindar who bestowed on
them large amounts of cash, ornaments etc. They used to visit the
G house of his father-in-Jaw, Hanumanthu, once or twice a month,
and used to keep all their cash, gold and silver ornaments. Hanu-
manthu owned a grocery shop. He and his father had a liquor
shop besides forest contracts. Hanumanthu used to deal in money-
lending business. The respondent alleged that his father-in-law
H deposited an amount of Rs. 30,000 in April 1957, Rs. 10,000/- in
August 1957 and Rs. 35,000 in cash and Rs. 1,000 in coins and
also 23 tolas of gold in September, 1957 with his wife, Smt. Sushila.
MAHARASHTRA v. w. R. KAIDALWAR (Sen, J.) 679

He pleaded that his father-in-law died on .March 10, 1958 at his A
house leaving behind his son, Narayan and two daughters. Smt.
Shakuntala, who on her marriage with the respondent was re-named
as Smt. Sushila, and Smt.Sushila, his sister-in-iaw, minor at that time.
He instructed him to divide the property into three equal shares
among his three children. The respondent maintained that he was
holding the property merely as a custodian and was not the owner B
thereof. .

The Special Judge, Chandrapur, by his judgment dated 7.6.1971,
convicted the respondent for having committed an offience punishable
under s.5(2) read with s.(5) ( l )(e) of the Act inasmuch as he was found
in possession of property worth Rs. 79,574.70 as~against his only C
known source of income, namely, his total salary in government
service amounting to Rs. 44,00J. He held that the respondent had
failed to_ account for cash of Rs. 26,870, sale-deeds of the two
plots purchased for Rs. 5,250 and Rs. 21,210 in the name of his
wife Smt. Sushila and the other jointly in the name of his wife and
brother-in-law, Narayan and for the house built at village Gondpipri D
at a cost of Rs. 10,000 He held that the acquisition of these
immoveable properties was not reasonably attributable to the property
left by his father-in-law, Hanumanthu. He also rejected the respon·
dent's plea that he was leading a frugal life and, therefore, was able to
make a saving of Rs. 15,000 out of his salary income. He acoordinly
sentenced him to undergo rigorous imprisonment for two years and E
to pay a fine of Rs. 26,870. He further directed that the two plots at
Chandrapur and the house at village Gondpipri be sold and the sale
proceeds be forfeited.

On appeal, a learned Single Judge of the High Court set aside
the judgment and sentence passed by the learned Special Judge and F
acquitted the respondent. The order of acquittal was based principally.
on two grounds : (1) The prosecution having failed to discharge the
burden of disproving all possible sources of income i.e. failed to
account for the properties left by the respondent's father-in-law,
Haumanthu, he could not be convicted under s. 5(2) read with s. 5
(l)(e) of the Act, and (2) it was not possible to exclude the probability G
that the property found in the respondent's house could be the
property left by his father-in-law, Hanumanthu.

In coming to the conclusion that it did, the High Court was of
the view that the changes brought about by theJAnti-Corruption Laws H
(Amendment) Act, 1964 had the effect of limiting the presumption of
guilt arising under s.4(1) of the Act to offences of criminal misconduct
680 SUPREME COURT REPORTS (1981) 3 S.C.R.

A specified in ss.5(l}(a) and (b) and not to that in s.S(l)(e). It therefore
held that mere possession of disproportionate assets by a public
servant to his known sources of income for which he has failed to
.account would not be sufficient to bring home the guilt under s.5 (I)
(e), unless the prosecution further excludes all possible sources of
incow,e. The construction placed by the High Court on the
provisions contained in s.5(l)(e) of the Act is obviously wrong. It
B completely overlooks the fact that the burden is cast on the accused
by the use of the words "for which the public servant cannot
satisfactorily account". It is also wrong in distorting the meaning of
the expression "known sources of income" occurring in s. 5(1)(e),
which has a definite legal connotation and which, in the context,
must mean "sources known to the prosecution".
c
It is distressing to find that the High Court has involved itself
into a pfocess of evolution of a new theory of law, instead of
confining itself to a re-appraisal of the evidence on record which it
was entitled to do sitting as a court of appeal against the judgment
of conviction. The ort:ler of acquittal recorded by the High Court
D could still be maintained on a proper evaluation of the facts, as, on
the proved circumstances, there was a preponderance of probability
that the property . found in the respondent's house could be the
property left by his father-in-law, Hanumanthu.

The legislature deleted s.5(3) of Act which embodied a rule of
E evidence by s.6 of the Anti-Corruption Laws (Amendment) Act, 1964
and instead, inserted s.5(1)(e) making, possession of disproportionate
assets by a public servant, a substantive offence. Section 5(1)(e) of
the Act reads :

5.(1) A public servant is said to commit the offence of
F criminal misconduct-

(e) if be 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
G account, of pecuniary resources or property dispropor-
tionate to his known sources of income.

Old s.5(3) of the Act was in these terms :

H: 5.(3) 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
"MAHARASHTRA v. w. R. KAIDl\LWAR (Sen, J.) 681

person cannot satisfactorily account, of pecuciary resources A
or property disproportoionate to his known sources of
income may be proved, and on such proof the Court shall
presume, unless the contrary is proved, that the acused
person if 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 B
presumption.

Three questions arise for our consideration in this appeal,
namely : (1) Whether a public servant charged with having dispropor•
tionate assets in his possession, for which he cannot satisfactorily
account, cannot be convicted of an offence under s. 5(2) read with c
~
s.5(l)(e) of the Act unless the prosecution disproves all possible
sources of his income (2) If the prosecution establishes that a public
' servant is in possession of pecuniary resources . or property
disproportionate to his known sources of income, whether the
burden to disprove the charge shifts to the accused to satisfactorily
account for the source of acqusition of s11ch resources or property. D
and if so, the nature and extent of such burden on the accused.
(3) Whether, on the facts and circumstances of the present case, hav-
ing regard to the fact that the respondent's father-in-law, Hanumanthu
was pairokar of Raja Dharmarao, Zamindar of Aheri Estate and left
substantial properties, it was not improbable that the properties
found in possession of the respondent belonged to his father-in- E
taw.

It is clear both on authority and principle that s.5(3) which now
stands deleted did not create an offence separate from the one created
by s.5(1), but intended only to lay down a rule of evidence to raise a F
presumption of guilt in certain circumstances. Section 5(1) defines
different species of criminal misconduct which can be committed by a
public servant and s.5(2) provides that any public servant who commits
criminal misconduct shall be punishable with imprisonment for a
term which shall not be less than one year, but which may extend to
seven years and also shall be liable to fine. Under the old s.5(3), a G
presumption of criminal misconduct could be drawn if such a public
servant or any person on his behalf was found to be in possession of
pecuniary resources or property disproportionate to his known
sources of income for which the public servant could not satisfactori-
ly account, Once the prosecution proved that the accused person H
was possessed of disproportionate assets, the burden was shifted to
the accused to prove the source of acquisition of such assets. '
682 SUPREME COURT REPORTS [1981] 3 S.C.R.

A The provisions of s.5(3) have been subject of judicial interpre-
tation. First the expression "known sources of income" in the
context of s.5(3) meant "sources known to the prosecution". The
other principle is equally well-settled. The onus placed on the
accused under s.5(3) was however, not to prove his innocence beyond
reasonable doubt, but only to establish a preponderance of
B probability. These are well->ettled principles : C.S.D. Swamy v. The
State(1) Sajjan Singh v. State of Punjab(2) and V.D. Jhagan v. State
of U.P.( 3 ). The legislature thought it fit to dispense with the rule of
evidence under s. 5(3) and make the possession of disproportionate
assets by a public servant as one of the species of the offence of
criminal misconduct by inserting s. 5{l)(e) due to widespread cor-
c ruption in public services.

The terms and expressions appearing in s. 5(l)(e) of the Act
are the same as those used in the old Section 5(3). Although the
two provisions openite in two different fields, the meaning to be
assigned to them must be the same. The expression "known sources
D of income" means "sources known to the prosecution". So also
the same meaning must be given to the words "for which the public
servant is unable to satisfactorily account" occurring in s. 5(!)(e).
No doubt, s. 4(1) provides for presumption of guilt in cases falling
under ss. '(!){a) and (b), but there was, in our opinion, no need to
mention s. 5(1)(a) therein. For, the reason is obvious. The
E provision· contained in s.5(1)(e) of the Act is a self-contained
provision. The first part of the Section casts a burden on the
prosection and the second on the accused. When s. 5(1)(e) uses the
words "for which the public servant is unable to satisfactorily
account", it is implied that the burden is on such public servant to
account for the sources for the acquisition of disproportionate assets.
F The High Court, therefore, was in error in holding that a public
servant charged for having disproportionate assets in his possession
for which he cannot satisfactorily account, cannot be convict(!d of an
offence under s. 5(2) read with s.5(1 )(e) of the Act unless the pro-
secution disproves all possible sources of income.

G That takes us to the difficult question as to the nature and extent
of the burden of proof under s. 5 (I) (e) of the the Act. The
expression 'burden of proof' bas two distinct meanings (I) the legal
burden. i.e. the burden of establishing the guilt, and (2) the

H (1) [1960] l S.C.R. 461.
(2) [1964] 4 S.C.R. 630.
(3) [1966] 3 S.C.R. 736.
MAHARASHTRA v. w. R. KAJDALWAR (Sen, J.) 683

evidential burden, i.e. the burden of leading evidence. In a criminal A
J:rial, the burden of proving everything essential to establish the
charge against the accused lies upon the prosecution, and that
burden never shifts. Notwithstanding the general rule that
the burden of proof lies exclusively upon the prosecution, in the
case of certain offences, the burden of proving a particular fact in
issue may be laid by law upon the accused. The burden resting on B
the accused in such cases is, however, not so onerous as that which
lies on the prosecution and is discharged by proof of a balance of
probabilities. The ingredients of the offence of criminal misconduct
under s. 5(2) read with s.5(I)(e) are the possession of pecuniary
resources or property disproportionate to the known sources of
income for which the public servant cannot satisfactorily account. c
To substantiate the charge, the prosecution must prove the following
facts before it can bring a case under s. S(l)(e), namely, (!) it must
establish that the accused is a public servant, (2) the nature and
extent of the pecuniary resources or property which were found in
his possession, (3) it must be proved as to what were his known
sources of income i.e. known to the prosecution, and (4) it must D
prove quite objectively, that such rosources or property found
in possession of the accused were disproportionate to his
known sources of income. Once these four ingredients are
established, the offence of criminal misconduct under s. S(l)(e) is,
complete, unless the accused is able to account for such resources or
property. The burden then shifts to the accussed to satisfactorily E
account for his possession of disproportionate assets. The extent and
nature of burden of proof resting upon the public servant to be
found in possession of disproportionate assets under s. 5( I)( e) cannot
be higher than the test laid by the Court in Jahgan's case (supra),
i.e. to establish his case by a preponderance of probability. That
test was laid down by the court following the dictum of Viscount F
Sankey, L.C. in Wooimington v. Director of Public Prosecutions(1). The
High Court has placed an impossible burden on the prosecution to
disprove all possible sources of income which were within the special
knowledge of the accused. As laid down in Swamy's case (supra), the
prosecution cannot, in the very nature of things, be expected to
know the affairs of a public servant found in possession of resources G
or property disproportionate to his known sources of income i.e. his
salary. Those will be matters specially within the knowledge of the
public servant within the meaning of s.106 of the Evidence Act,
1872. Section 106 reads :
H
(I) [1935] A.C. 462.
684 SUPREME COURT REPORTS [1981) 3 S.C.R.

s. 106. when any fact is especially within the knowledge
A of any person, the burden of proving that fact is upon him.

In this connection, the phrase the burden of proof is clearly used in
the secondary sense namely, the duty of introducing evidence. The
nature and extent of the burden cast on the accused is well settled.
The accused is not bound to prove his innocence beyond all reason-
B able doubt. All that he need do is to bring out a preponderence of
probability.

Such being the law, the question whether or not the respon-
dent had established a preponderance of probability is a matter
relating to appreciation of evidence. 0 n a consideration of the
c evidence adduced by the respondent, the High Court has taken the
view that it is not possible to exclude the possibility that the property
found in possession of the respondent belonged to his father-in-law,
Hanumanthu. We have been taken through the evidence and we
cannot say that the finding reached by the High Court is either
mainfestly wrong or perverse. Maybe, this Court, on a reappraisal
D of the evidence, could have come to a contrary conclusion. That,
however, is hardly a ground for interference with an order of
acquittal. There are no compelling reasons to interfere with the
order of acquittal, particularly when there is overwhelming evidence
Jed by the respondent showing that his father-in-law, Hanumanthu,
was a man of affiuent circumstances. There is no denying fact that
E Hanumanthu was the pairokar of Raja Dharmarao Zamindar of
Aheri Estate and by his close association with the Zamindar, had
amassed considerable wealth. More so, because two of his sisters
were the kept mistresses of the Zamindar and amply provided for.

It appears that after the death of Raja Dharmarao, Hanumanthu
F took up his residence with his elder daughter, Smt. Sushila, who was
married to the respondent. To substantiate his plea in defence, the
respondent examined as many as 12 witnesses including himself as
AW 12, his sister-in-law, Smt. Sushila (AW 11), Dr. Chandrasekhar
Merekar (AW 6), Shri V.N. Swamy, Advocate, Chandrapur (AW 8).
We cannot brush aside the unimeachable testimony of Shri V.N.
G Swamy, AW 8, who was a leading advocate of Chandrapur and
Member of Lok Sabha, and Dr. Chandrasekhar Merekar, AW 6,
Medical Practitioner of Chandrapur, who attended on Hanumanthu
at the · time of his death. Both these witnesses have unequivocally
stated that when Hanumanthu died at the respondents leaving
H his two minor children, · Smt. Sushila and Narayan to the care
of the respondent and his wife, Smt.Sushila; he told them that he
MAHARASHTRA JI. W.R. KAILALWAR (Sen, J.) 685
A
was leaving properties worth Rs. 70 to 80 thousand comprising cash
ornaments, jewellery etc., and expressed a desire that the same be
divided equally among, his three children, the two daughters and son.
Shri Swamy testified to the fact that he was handling all the litigation
of Raja Dharamrao, Zamindar of Aheri Estate who had an yearly
income of Rs. 6 to 8 lakhs because the Zamindar had rich forests. B
He tells us that he knew Hanumanthu well because he was the
pairoku of Raja Dharmarao, that Hanumanthu enjoyed great
confidence of the Zamindar and had free access to him because his
two sisters were the kept mistresses of the Zamindar. His
evidence shows that the ladies were well provided for and whenever
they visited Hanumanthu they used to hand over their cash, c
ornaments and jewellery· to him for safe custody. His evidence also
shows that Hanumanthu was a man of affluence and that Ii.e and his
father had a liquor shop besides forest constracts. Hanumanthu
also used to deal in money-lending business. The respondent has
also placed on record dccuments showing that Hanumanthu was a
man of substantial means. To add to the difficulty of the prose- n
cution, Smt. Sushila; AW l l, sister-in-law of the respondent has
come and deposed that all the property belonged to her father.
All this evidence is sufficient to create a doubt as to whether
the respondent was in possession of disproportionate assets. There
is certainly a preponderance of probability that the property found E
in the possession of the respondent did not belong to him but
belonged to his father-in-law, Hanumanthu.

The result, therefore, is that the appeal must fail and is
accordingly dismissed.

P.B.R. Appeal dismissed.