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Judgment
N.K. Das, J.—The Appellant in Criminal Appeal No. 61/75 is the same person who is Respondent in Government Appeal No. 77/75. He was charged u/s 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act for misappropriation of Rs. 6910.00 in cash and 49 bags of cement worth Rs. 41650 and for having pecuniary advantage of Rs. 7676.01 for himself and/or for one Sk. Kala by corrupt and illegal means and by abusing his official position.
Prosecution case is that the accused was the B.D.O. of Jajpur during the years 1962 to 1965. In March 1963, Government in the Commuity Development and Panchayat Raj Department issued a circular limiting the total estimated cost of construction of each Panchayat Samiti (Block) Office building to Rs. 29,000/-.
The construction of Jajpur Panchayat Samiti Office building was taken up in 1963 before its plan and estimated had been approved and administrative approval had been accorded. The accused entrusted the work to P.W. 5, a poor and landless man of Jajpur town, who had been enlisted as a ''D'' class contractor and was entitled to take up work only to an extent of Rs. 10,000/-. The accused did not call for tenders before entrusting the work to P.W. 5. The work was also not completed by P.W. 5 and he left in an incomplete stage. In course of this work, the accused paid Rs. 32,504.85 to P.W. 5 in several instalments as advance in the shape of cash or material, though the total cost of work executed by P.W. 5 was found to be only Rs. 24,828.84. Thus, it is alleged that the accused obtained a pecuniary advantage up to Rs. 7676 01 for P.W. 5 and/or for himself. Further, though the accused obtained 14 receipts from P.W. 5 for a total sum of Rs. 6910/- and 5 receipts for 49 bags of cement valued at Rs. 416.50. yet actually he did not either pay the amount or handed over the cement to P.W. 5, but misappropriated the same. After a confidential inquiry charge-sheet was submitted.
Defence plea is substantially one of denial. The specific plea of the accused is that at the end of the financial year 1962-63, a sum of Rs. 10,000/- in the Samiti P.L. account remained unspent. This account was likely to lapse if not spent by the end of March 1963. As there was no time to call for tenders to select a contractor and there was necessity to shift the Block Office and Godown to its own building, the same being located in a rented house at an exorbitant rent, and there was also pressure from higher levels to construct and complete the building soon, he entrusted the work to P.W. 5, a ''D'' class contractor who was readily available and had the solvency certificate. This work was entrusted at job rate basis. As P.W. 5 continued to work, different amounts were advanced to him in anticipation that he would complete the work and the amounts advanced would be adjusted. But when the accused was transferred from Jajpur, his successors took no interest to get the building completed or to realise the excess amount from P.W. 5. His further plea is that the R.E.O. and the staff of his office had a grudge against him as he did not agree with them to delay the construction of the building and they got annoyed.
The learned trial Court has acquitted the accused of the charge u/s 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act. Government Appeal No. 77/75 is directed against this order of acquittal. However, he has been convicted u/s 5(2) read with Section 5(1)(d) of the Act for making advance to P.W. 5 a sum of Rs. 5,280.37, through the prosecution case is that he advanced Rs. 7,676.01 and has been sentenced to undergo R.I. for one year and to pay a fine of Rs. 3,000/-, in default to undergo R.I. for a further period of three months. Criminal Appeal No. 61/75 is directed against this order of conviction.
There is no dispute that accused was the B.D.O. of Jajpur during the relevant period. i.e. from 1962 to 1965. Let me take up the Government Appeal first.
Government Appeal No. 77/75:
As per the charge u/s 5(2) read with Section 5(l)(c) of the Prevention of Corruption Act, prosecution case is that during the period between 24-7-1964 and 19-7-1965, the Respondent in this appeal dishonestly and fraudulently misappropriated a sum of Rs. 6,910/- covered under the receipts Ext. 14 series and 49 bags of cement worth Rs. 41650 covered under the receipts marked ''Y'' series. The signatures of P.W. 5 in these receipts are said to have been forged. Though in these receipts the amount mentioned therein and also the quantity of cement are shown to have been made over to and received by P.W. 5, yet actually the amount was not paid, nor the cement was delivered to P.W. 5. The plea of the Respondent is that he actually paid the money to P.W. 5. As regards cement, his plea is that P.W. 14, a U.D. Clerk of the Block Office, used to issue all cement and keep receipts and that person is able to explain the matter.
6 As regards misappropriation of cash of Rs. 6.910/- prosecution relies on the testimony of the contractor P.W. 5, the Head Clerk of the Block Office P.W. 7 and P.W. 8 who is a nephew of P.W. 5. P.W. 5 has denied receipt of any amount under the receipts Ext. 14 series. His nephew P.W. 8 also speaks to the same effect. Ext. 14 series are undoubtedly receipts granted by P.W. 5 relating to the cash amounting to Rs. 6,910/-. The controversy is that P.W. 5 says that he has not received the money; whereas the Respondent says that he has actually paid the money. The learned trial Court relying on the cash book entries Exts. 29/16 to 29/29 has found that there was a total disbursement of Rs. 7,4101- to P.W. 5 which is in excess by Rs. 500/-. than the amount alleged to have been misappropriated. There is no receipt corresponding to Ext. 29/22 dated 17-12-1964 showing disbursement of Rs. 500/- to P.W. 5. Prosecution has not included this amount in the charge against the Respondent. Leaving this amount of Rs. 500/-, the entries in the cash book show disbursement of Rs. 6,910/-, which is not disputed. P.W. 7 was the Head Clerk of the Block Office at the relevant time. According to him, Respondent was in actual custody of cash as there was no double lock system in the Block Office. P.W. 5 has admitted to have granted the receipts Ext. 14 series. From the contents of these receipts, it appears that P.W. 5 has acknowledged receipt of the amounts mentioned therein. From the evidence of P.W. 5 it appears that it was P.W. 8 who was really executing the contract work and was managing the affairs. This P.W. 8 also arranged materials and labourers and supervised the work and P.W. 5 was only a name-lender and worked as a labourer under P.W. 8. He has stated that he cannot say if his nephew P.W. 8 received the amounts under the receipts Ext. 14 series as it was P.W. 8 who was paying to the labourers and masons and P.W. 8 had also taken away Ext. 14 series from him. He admits that he has no reason to complain that he did not receive any money under Ext. 14 series nor did he ask the Respondent at any time for the money under Ext. 14 series. Before the I.O. this witness has stated that he signed Ext. 14 series at the instance of the Respondent and when he asked the Respondent about money, he was told that money had been spent in the work in question. When he was asked if he was to get anything under Ext. 14 series from the Respondent, he stated that he had personally nothing to receive from the Respondent. Thus, it would be seen that P.W. 5 is not consistent in his version about the fact of non-receipt of money and the circumstances relating to grant of Ext. 14 series. A story has been introduced by P.W. 5 that by the end of 1963 he could not complete the work and the Respondent himself managed the construction till 1964-65. But he has admitted that he only infers this fact and has no personal knowledge about this. Before the I.O. he has stated that he stopped the work only in 1965 as his claim was not settled. It would be seen that he was continuing with the work even after 1963. The evidence of this witness is not only self-contradictory, but also not worthy of credence. It is also highly improbable that P.W. 5 would be going on granting receipt after receipt without ascertaining from him if money was really necessary because he has stated that he granted these receipts without any inquiry whether money was, in fact, necessary. It is strange that he did not complain before anybody about non-receipt of money even though he had granted the receipts for such huge amounts and would continue with the work. P.W. 7 who was the Head Clerk of the Block Office at the relevant time has stated that P.W. 5 never complained before him about non-receipt of any money under Ext. 14 series. So also P.W. 10 who was the A.B.D.O. at that time has stated that P.W. 5 never complained before him about this. P.W. 8 states that it was P.W. 5 who was looking after the execution of the work and was making payments and he (P.W. 8) used to make entries in an exercise book through one Tima Singh. He has stated that he was never present in the Block Office either when P.W. 5 granted the receipts of received payments and his knowledge is based on only what he heard from P.W. 5. Reliance is placed on an exercise book said to have been written by one Tima Singh at the instance of P.W. 8. No reason has been assigned as to why P.W. 5 was not allowed to continue with the work after 1963. P.W. 5 is totally silent about Ext. 13, the account khata. P.W. 8 has also stated that he has no idea about the contents of Ext. 13. In view of such evidence, it IS difficult to accept that P.W. 8 would remember the contents of these entries made in 1964 and 1965. For the aforesaid reasons, I hold that no reliance can be placed on Ext. 13. The payments under Exts. 14 to 14/4 are supported by orders Exts. 9/17 and 9/19 to 9/22. It is not the prosecution case that these receipts are not based on orders. On the aforesaid analysis, I hold that the charge of misappropriation of Rs. 6,910/- has not been established by the prosecution.
As regards misappropriation of 49 bags of cement prosecution relies on the testimony of P.Ws. 5, 8, 13, 14 and 21 and the documents Exts. 32, 43, 43/1, 44, 44/1, 45,45/1,46,46/1 and 49 to 49/5. The receipts marked ''Y'' to ''Y/5'' are said to have been granted by P.W. 5. P.W. 5 denies his signatures on all these receipts. But it is found that the signature on the receipt ''Y /5'' is of P.W. 5. Prosecution relies on the testimony of the hand writing expert in this respect. The handwriting expert has said that these receipts do not bear the signature of P.W. 5. The evidence of P.W. 5 clearly shows that he is not telling the truth, or in other words he is trying to suppress the truth. From the evidence of P.W. 5 it transpires that it was P.W. 8 who was bringing cement or iron rods from the Respondent and he merely granted the receipts. P.W. 8 has stated that P.W. 5 gave 4 to 5 receipts for cement and on subsequent occasions P.W. 5 had received cement from the stores without granting receipt. According to him, no receipt for cement supplied to them was taken during 1964 and 1965 as the Respondent himself got the work done under his own supervision. But I have already held that this story has not been established by the prosecution. P.W. 8 has stated that he never went to the Block Office to bring iron rods, cement or money. On a comparison of the evidence of P.Ws. 5 and 8, it would appear that if one witness is to be believed, other is be discarded. In view of their contradictory statements, it cannot be definitely said as to who was actually going to bring cement from the Block Office. It is also not possible to say whether or not cement was supplied and if somebody has not fabricated the receipts. The case 0"� the prosecution is that these receipts are in the hands of the Respondent. But there is no evidence as to who wrote these receipts and signed. P.W. 14 has stated that while the cement was being kept in a room in the old Block Office, he used to keep the key of that room and issue cement during office hours and the Respondent used to issue cement beyond office hours. But he is not supported by P.W. 7 or P.W. 10, who state that P.W. 5 was taking the building materials from P.W. 14. This statement of the prosecution witnesses supports the defence plea in this respect. P.W. 14 is unable to say if any material was issued under the receipts marked ''Y'' to ''Y/4''. He has endorsed supply or cement on receipts marked ''Y'' and ''Y/1''. He did not verify from p w. 5 if the latter had really received the cement or not. But before the I.O. this witness has stated that he actually verified from P.W. 5 that the latter had received the cement as per the receipts. This statement clearly disproves the prosecution verision about misappropriation of cement. Prosecution also relies on the evidence of P.W. 13, but the learned trial Court has rightly rejected his testimony. On the aforesaid analysis, I hold that prosecution has failed to establish the allegation of misappropriation of cash of Rs. 6,910/- or 49 bags of cement by the Respondent. The findings of the learned trial Court do not appear to be incorrect, or suffering from any intrinsic infirmity. The receipts Ext. 14 series having been granted, denial of P.W. 5 to have received the cash has not been substantiated. The two witnesses, namely, P.Ws. 5 and 8, have given contradictory statements about receipt of cement under the receipts marked ''Y'' series. Also the evidence of P.W. 14 before the I.O. completely belies the prosecution story in this respect.
Criminal Appeal No. 61/76:
As regards charge u/s 5(1)(d) of the Prevention of Corruption Act, prosecution case is that the Appellant in Criminal Appeal No. 61/75, by illegal and corrupt means and by abuse of his official position, obtained, for himself and /or for P.W. 5, pecuniary advantage to the tune of Rs. 7676.01. But the learned trial Court has found that this pecuniary advantage is to the tune of Rs. 5280,37. It is alleged that the construction work of the building was entrusted to P.W. 5, who was virtually a pauper, in violation of the prescribed rules, and advances were made to him in the shape of materials or cash in excess of the cost of work actually done by him. It is further alleged that in violation of rules and in spite of objection by the engineering staff of the Block the Appellant made such advances. Prosecution relies on the testimony of P.W. 20 and the calculation sheets Exts. 40 to 40/2, said to have been prepared by the staff of P.W. 20 under instructions of P.W. 20 as well as Ext. 41, the report of P.W. 20. Prosecution farther relies on Ext. 13, the exercise book, said to have been prepared by one man at the instance of P.W. 8. I have already held that no reliance can be placed on Ext. 13.
The irregularities said to have been committed by the Appellant violating certain provision of the rules have been regularised. This fact is admitted. It is also evident from the statements of the prosecution witnesses that under the direction of the Chairman and Vice-Chairman as well as members of the Panchayat Samiti and the S.D.O. the Appellant entrusted the construction work to P.W. 5. P.W. 4 was the Sub-Overseer at the relevant time attached to the Block. He has stated that it is permissible to start a building according to type plan of Government, pending sanction of the plan and estimate in the regular way. Prosecution also admits that the construction was made according to the type plan of Government. From the documents, it is also evident that subsequently plan and estimate have been sanctioned. P.W. 7 who was the Head Clerk at the relevant time has stated that at the close of the financial year 1962-63, allotment of funds for the building in question was lying unspent and the amount would have lapsed. As there was no time for calling for tenders and observing other financial rules for spending the money, the work was started before 31st March and the Chairman, Vice-Chairman and members of the Panchayat Samiti and the S.D.O. asked the Appellant to entrust the work to P.W. 5. Ext. 1, the resolution of the Panchayat Samiti, also shows that the Panchayat Samiti had approved the action of the Appellant. P.W. 10 who was the A.B.D.O. at the relevant time has stated that the Appellant started the work in consultation with P.W. 1 in order to avoid lapse of funds sanctioned for construction of the building in question. Ext. 9, the first order in the file, indicates that an estimate had been prepared in the old schedule of rates before this order and the estimate needed revision in view of the introduction of revised type plan for Panchayat Samiti buildings by Government. A revised estimate was then prepared and sent to the Assistant Engineer and Executive Engineer for technical sanction. P.W. 6 also states to the same effect. He also states that at times buildings are constructed in anticipation of approval of the plan and estimate. He has stated that if the B.D.O. cannot spend any amount sanctioned for a project by the end of the financial year, he has to explain to his superiors the cause for not spending the money. P.W. 19 who was the S.D.O., R.E.O. of Jajpur during the relevant period has stated that the construction of the building originally began in accordance with the prescribed type plan and estimate and the original plan was for A.C.C. roofing. This was, however, subsequently changed to R.C.C. roofing. This witness states that the Appellants had overlooked the procedure relating to tenders, technical sanction and administrative approval. He advised the Appellant for stopping the work till plan and estimate were technically sanctioned and administrative approval was accorded to the work. It is not disputed that the Appellant forwarded the revised plan and estimate for the building in triplicate along with a forwarding letter indicating that in a meeting of the Panchayat Samiti it was decided to change the A.C.C. roof, provided for in the original type plan, to R.C.C. roof and the Superintending Engineer was requested to inform the Executive Engineer for technical sanction. Administrative approval was accorded by the Collector as would appear from Ext. 28, the revised plan, and the Collector also wrote to the Government for approval. Though P.W. 19 says that he found some irregularities as stated by him, he is not able to assign any reason as to why he did not point out those irregularities. From the evidence of P.W. 4, it appears that P.W. 19 himself checked the lay out of the foundation of the building by P.W. 5. Thus, it would appear that there was technical sanction and administrative approval was also accorded. This fact is admitted by P.W. 20. P. ws 4 and 6 have stated that no engineering staff was attached to the Block after P.W. 4 left and till P.W. 6 joined the Block. It would thus appear from the aforesaid evidence adduced on behalf of the prosecution that there were irregularities in the action of the Appellant which were regularised and rectified later on it is also clear that the Appellant entrusted the construction work of the building to P.W. 5 under certain unavoidable circumstances and under pressure of higher authorities. To this extent the defence plea is established by the prosecution evidence.
The learned trial Court has held that the allegation that entrustment of work was made to P.W. 5 who was a pauper is not fully true. From Ext. B, it appears that P.W. 5 has obtained a solvency certificate to the extent of Rs. 50,000/-. Of course he is a ''D'' class contractor. But as I have found, under pressure from higher authorities, the Appellant was compelled to entrust the construction work of the Panchayat Samiti Office building to P.W. 5. It is evident from the prosecution evidence that it was not possible to call for tenders from contractors within a short period and, as such, P.W. 5 was engaged on job work basis for quick execution of the work. This fact is supported by the evidence of P.Ws. 4, and 10. Though prosecution case is that such action of the Appellant was in violation of rules, it cannot be said that the Appellant intentionally or with some ulterior motive entrusted the work to P.W. 5.
The learned trial Court has found the Appellant guilty of advancing 313 bags of cement worth Rs. 2201.50 and 3884 70 Kgs. of iron rods worth Rs. 3078.87, the total cost being Rs. 5280 37 in excess of the work done by P.W. 5 Reliance has been placed on the evidence of P.W. 20 and Exts. 23 and 41. The learned trial Court has held in para 17 of his judgment that reliance cannot be placed on Ext. 23 which appears to be a suspicious document and contains interpolations and prosecution has failed to explain why such interpolations were made. P.W. 20 submitted his report Ext. 41 and Exts. 40 and 41 are the calculations made at his instance. The evidence, both oral and documentary as stated above, is to the effect that P.W. 20 made a check measurement and found that cement and iron rods were supplied to P.W. 5 by the Appellant in excess of the work done by P.W. 5. P.W. 20 has himself admitted that he made the measurement only by means of a tape and he relied on Ext. 23. This Ext. 23 has not been held to be unreliable. The calculations as made in Exts.40/1 and 40/2 are also based on Ext. 23 and the report Ext. 41 is out of those calculation sheets. It is also admitted that the check measurement was not done in presence of the contractor. P.W. 20 has further admitted that during check measurement, he did not calculate and find out the total quantity of materials used in construction of the building. This clearly goes directly against the prosecution case as the prosecution has tried to establish that it was P.W. 20 who found that the Appellant supplied materials in excess of what was required for the construction. P.W. 20 has further admitted that he actually did not see any tender paper for the work in question. The total work and just value thereof as stated by P.W. 20 cannot be accepted since he has based on Ext. 23 which is found to be unreliable and is full of interpolations. On the aforesaid analysis, I hold that prosecution has failed to establish that the Appellant supplied cement and iron rods worth Rs 5280.37 in excess of the requirement for construction of the building.
The learned trial Court has held that when in July 1963 the Appellant had ordered for stopping the construction work, as it was pointed out by the engineering staff that technical sanction had not been obtained, he again granted advance of Rs. 1000/- on 21-12-1963 as per Ext. 19 to P.W. 5. It would appear from Ext. 36 dated 27-7-1963 that the S.D.O., R.E.O. wrote to the B.D.O. that advance should not be given to the contractor as technical sanction had not been obtained for the construction and rules had not been followed. Accordingly, plan and estimate 1979
were submitted as would appear from Ext. 37. It would be seen from Ext. 22 that on 9-12-1963 the contractor wanted an advance of Rs. 1,000/-. and the Engineering Overseer was asked to give his comment. When the Engineering Overseer noted that no further advance should be given to the contractor, the Appellant passed orders for but paying any more money. Prosecution case is that when on 9-12-1963 the Appellant passed orders stopping payment of any further advance to p.w. 5, he again passed order on 21-12-1963 to advance Rs. 1,000/-. to P.W. 5. Ext. 19 series refer to the application of P.W. 5 dated 21-12-1963 and orders of the Appellant thereon. P.W. 5 asked for an advance of Rs. 2000/-. The Appellant sent the application for opinion of the Engineering Overseer. It was noted by the Engineering Overseer that on 18-12-1963 the Executive Engineer had directed that the building should have R.C.C. roof instead of A.C.C. roof and after R.C.C. slabs were placed, estimate was to be sanctioned. He has not mentioned in this application for not advancing any more money. It would appear that in the meanwhile on December 18, 1963, the Executive Engineer bad directed for change of the plan and to have R.C.C. roof instead of A.C.C. roof and that the estimate would be sanctioned after R.C.C. slabs were placed on the rod. The Appellant sanctioned the advance of Rs. 1000/- under these circumstances. Therefore, it cannot be said that though the Appellant had ordered for stopping payment of further advance to P.W. 5 on 9th December, there was no further development and the same situation continued. On the other hand, circumstances changed and R.C.C. roof had to be made Instead of A.C.C. roof and in such circumstances the Appellant passed orders for payment of Rs. 1000/-. as required by the contractor. It is also evident from documentary evidence as well as from the evidence of witnesses of the Engineering Department that estimate was prepared for having R.C.C. roof and this was approved and sanctioned. In the aforesaid circumstances, it cannot be said that with some ulterior motive or dishonest intention the Appellant passed order for advancing Rs. 1000/- to P.W. 5 on 21-12-1963.
Even assuming that the Appellant supplied cement and iron rods and also sanctioned advance of Rs. 1,000/- to P.W. 5, it is to be seen whether there was dishonest intention on his part to make pecuniary gain to himself and/or to P.W. 5. Section 5(1) (d) provides that a public servant is said to commit the offence of criminal misconduct if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
A similar question came up for consideration before the Supreme Court in M. Narayanan Nambiar Vs. State of Kerala, . Relying on decision of the Judicial Committee in Dyke v. Elliott, the Gauntlet 1872 A.C. 184, their Lordships held that taking the phraseology used in Clause (d) of Section 5(1), the case of a public servant causing wrongful loss to the Government "by benefiting a third party squarely falls within its purview. By the clause by otherwise abusing the position of a public servant" the phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position. Their Lordships thereafter elaborately discussed the interpretation of the words "abuse", "corrupt", "illegal" and "otherwise". It was observed that the juxtaposition of the word "otherwise" with the words "corrupt or illegal means" and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause.
This dictum of the Supreme Court was reiterated in The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar,
In Major S.K. Kale v. State of Maharashtra A.I.R 1977 S.C. 222, the principles enumerated 10 the decision M. Narayanan Nambiar Vs. State of Kerala, , were also followed and it was held that the abuse of position must necessarily be dishonest so that it may be proved that the accused caused deliberately wrongful loss to the Government.
In Sudarsan Sahu v. State 1976 C.L.R. 225, has also held that dishonest intention and criminal animus are ingredients to be established for conviction of a public servant while obtaining for himself or for any other person any pecuniary advantage.
Judging the present case of the dictum of the Supreme Court referred to above and also the previous decision of this Court, I hold that the circumstances under which the accused made advance of money and supplied cement and iron rods to P.W. 5 in excess (even if it is assumed to have been proved), do not establish any dishonest intention on the part of the accused for having any pecuniary advantage for himself or for P.W. 5. Whatever money had been advanced by him to P.W. 5 was within the revised estimate which had also been sanctioned and, accordingly, it cannot be said that he had any dishonest intention or criminal animus. The learned trial Court has also held that the accused bad not followed certain rules and there were irregularities in bis action. He has further held that there was no mala fide intention on the part of the accused in advancing money and goods to P.W. 5. In view of this finding, the learned trial Court has committed error in corning to the conclusion that the accused committed any offence u/s 5(l)(d) of the Act. On the aforesaid analysis, I hold that conviction of the accused is not sustainable.
In the result, Government Appeal No. 77 of 1975 is dismissed. Criminal Appeal No. 61 of 1975 is allowed and the conviction of the Appellant and sentence passed thereunder are set aside. The Appellant is acquitted of the charge levelled against him.
Govt. Appeal dismissed and Criminal Appeal allowed.