JASWANT SINGH - (1.) BY his judgment and order dated Nov. 30, 1965 the Sub Divisional Magistrate, Bhubaneswar, convicted Gopinath Patra, respondent in Appeal No. 26 of 1972, under S. 409 of the Indian Penal Code and sentenced him to two years rigorous imprisonment and a fine of Rs. 2,000.00. BY the same judgment, the Sub Divisional Magistrate also convicted Nakula Sahu respondent in Appeal No. 25 of 1972 Brahmananda Misra, respondent in Appeal No. 27 of 1972 and Niranjan Naik, respondent in Appeal No. 28 of 1972, under S. 409 read with S. 109 of the Indian Penal Code and sentenced each one of them to two years rigorous imprisonment and a fine of Rs. 2,000.00. BY the same judgment, the Sub-Divisional Magistrate also found all the four respondents guilty of the offence under Section 120-B of the Indian Penal Code but in view of the fact that they were found guilty of the offence of criminal breach of trust for which they had entered into conspiracy, no separate sentence was awarded to them for that offence. BY the same judgment and order, the Sub Divisional Magistrate acquitted Nakula Sahu of the charge under Sec. 420 of the Indian Penal Code. On appeal, the Session Judge, Cuttack upheld the judgment and order of the Sub Divisional Magistrate and affirmed the convictions and sentences of the respondents by his judgment and order dated 1/05/1968. On the matter being taken in revision before it, the High Court of Orissa set aside the aforesaid judgments and orders passed by the trial court and the Sessions Judge and acquitted the respondents of all the charges by its common judgment and order dated Dec. 9, 1970. It is against this judgment and order that the aforesaid appeals have been filled by special leave.
(2.) THE facts giving rise to these appeals are : During the year 1961-62, the Public Health Department had a budget provision of Rs. 1,95,420.00 for purchase of washhand basins and other sanitary fittings required for four items of work. Though as Controlling Officer, the Superintending Engineer, Public Health Department was required under the financial Code to watch the expenditure against the budget allotments of the circles under him, it was the Executive Engineer, Public Health Dept. who was the drawing and disbursing officer for the aforesaid budget provision of Rupees 1,95,420/- and was responsible for any wastage or excess of appropriation. At the request of the Executive Engineer, Public Health Department, Bhubaneswar Lingaraj Das ( P.W. 7), the then Public Health Engineer, Orissa issued circular letter (Exh. 1) dated Sept. 30, 1961 to several dealers in sanitary goods inviting quotations for supply of 2,000 best Indian make earthenware washhand basins with white glazed, straight front, smooth top, and one tap hole and waste holes. In response to the said invitation, twelve firms including the Cuttack Plumbing Stores of which Nakula Sahu, respondent was the proprietor submitted their tenders. In his tender (Exh. 2), Nakula Sahu quoted the following rates : JUDGEMENT_328_1_1979Html1.htm On the comparative statement (Exh. 3) of the quotations received in response to the aforesaid circular letter being put up before him, Prosecution witness 7 accepted the quotation of the Cuttack Plumbing Stores for supply of 1000 22" x 16", Barang make, First Quality, washhand basins vide Exhibit 3 (4) at the rate of Rs. 70.00 per washhand basin plus sales tax at 7 Per Cent which meant that the basins should be free from all manufacturing defects like dents, fire cracks, warpage or other undulation on the surface etc. Under Exhibit (4) dated Oct. 13, 1961, the Cuttak Plumbing Stores was asked to supply the washhand basins to the Sub Divisional Officer, Project Sub Division No. 1 and submit the bills in triplicate to the Executive Engineer, Public Health Department Bhubaneswar for payment. Under Exhibit 4 (4), copies of the aforesaid order (Exh. 4) were forwarded to Gopinath Patra, respondent and Brahmananda Misra, respondent, the then Executive Engineer and Sub - Divisional Officer, Project No. 1 Sub-Divisional, Bhubaneswar, respectively for information and necessary action. The supplies were to be received by the Overseer, Niranjan Naik, who was the Section Officer, according to the specifications note in the order of supplies, Pursuant to work order (Exh. 5), Nakula Sahu, proprietor of the Cuttack Plumbing Stores supplied 1000 washhand basins in three instalments representing them to be of first quality Barang Make and submitted bills in regard thereto as detailed below: JUDGEMENT_328_1_1979Html2.htm On receipt of the supplies at the Public Health Department Store, Niranjan Naik, respondent, who was in charge of Store, took delivery thereof and entered the same in the Measurement Book certifying therein that the supplies were according to the specifications of the order. Thereafter respondent, Brahmananda Misra, Sub Divisional Officer, checked the supplies according to the specifications in the supply order and signed the Measurement Book in token of the fact that the supplies had been correctly made. Simultaneously with the supplies, Nakula Sahu submitted running bills on behalf of the Cuttack Plumbing Stores on each of which Niranjan Naik, Section Officer appended the following certificate :- "Verified the materials received on ... . and found correct, entered in M. B. (Measurement Book) No. ... ... in Page ... .. Taken into stock A/c in ... ... (Date and Year)."
(3.) UNDERNEATH the certificate of Niranjan Naik, Section Officer, Brahmananda Misra, Sub-Divisional Officer appended his certificate and signed the same. Thereafter, the bills were checked in the office of the Executive Engineer who made the payments by means of the cheques. On Nov. 16, 1961 i.e. after the first two supplies but before the third supply, Lingaraj Das (Prosecution witness 7) addressed confidential communication (Exh. 6) to Gopinath Patra hinting to him that according to the information received by him, the supplies made by Nakula Sahu were not according to the specifications in the supply order but were of lower class and requiring him to 'verify the quality of each and every washhand basin and to give a certificate if they were of first class quality as per specifications in the tender. By means of the aforesaid confidential letter, Gopinath Patra was also told to submit a detailed report about the quality of the washhand basins within four days in case he found that they were not of first quality as per specifications in the tender. Gopinath Patra was also asked to intimate the number of washhand basins supplied by the Cuttack Plumbing Stores and the amount paid to it. As Gopinath Patra did not comply with the aforesaid communication within the aforesaid time, Prosecution witness 7 sent him a reminder to expedite the reply but it was not before Dec. 9, 1961 that the former sent the reply (Exh. 7) certifying that 894 washhand basins which had been supplied by then by the Cuttack Plumbing Stores were all of first quality. By means of Exhibit (7), Gopinath Partra further informed the Public Health Engineer, Orissa that the Cuttack Plumbing Stores had so far been paid Rupees 66,960,60 including sales tax for the aforesaid 894 washhand basins. On 19/12/1961, Prosecution witness 7 placed order (Exh. 5) with Cuttrack Plumbing Stores for further supply of 500 washhand basins of the aforesaid quality and make at the rate of Rs. 68.00 per basin to be delivered to the Public Health Department's Godown at Bhubaneswar and sent intimation thereof to Gopinath Patra. Accordingly, Nakula Sahu supplied 50 washhand basins on 4/01/1962, 410 washhand basins on 1/10/1962 and 40 wahhand basins on Oct. 14, 1962 and submitted bills (Exhibits 29, 32 and 35) for Rs. 3,638.00, Rupees 29,831.60 and Rs. 2,910.40 respectively. On these three bills also, Brahmananda Misra, Sub-Divisional Officer appended certificates similar to those which they had given on the previous bills. On the basis of the said certificates, running account bills were prepared and signed by Gopinath Patra, Executive Engineer and payments were made to Nakula Sahu. On 28/03/1963, the Inspector of Police, Vigilance, Cuttack seized vide Seizure Memo (Exh. 73) form the Public Health Godown, Bhubaneswar, of which Niranjan Naik, Section Officer was incharge, 593 Barang Make washhand basins alleged to have been supplied to the Department by the Cuttack Plumbing Stores and A. B. Ghosh (Prosecution witness 8), Executive Engineer, Stores Verification Division, attached to the Works Department inspected these basins under the orders of the Secretary, Works and Transport Department and submitted his report (Exh. 49) dated Sept. 9/13, 1963 enclosing therewith statements (Exhibits 50 and 51) containing his remarks in respect of each and every one of 593 basins examined by him. In his report (Exh. 49) A. B. Ghosh inter alia stated : "Not a single basin of first quality could be found during verification. Three types of basins with manufacturer's marks II and III class and with no marks are found. All the basins which have been verified have different types of defects as noted against each number in the enclosed statements. In several cases major defects have been noticed in all the types of basins and the nature of major defects have also been noted in the statements." Thereupon the authorities made an inquiry fromM/s. Orissa Industries Ltd. Barang (Producers of the Basins) which revealed that the Cuttack Plumbing Stores had during its entire transactions with the former purchased only three first quality washhand basins and the rest of the washhand basins purchased by it by auction or otherwise from the Company and dishonestly passed on to and accepted by respondents, Niranjan Naik, Brahmananada, Misra and Gopinath Patra as first quality washhand basins were either second quality or rejected ones which did not at all conform to the specifications mentioned in the tender quotations (Exh. 2) and the supply order (Exh. 4). On these facts, the respondent were charged with and proceeded against for commission of various offences of criminal conspiracy, abetment of and commission of the offence of criminal breach of trust in respect of a sum of Rs. 1,11,280.00 entrusted by the State of Gopinath Patra, respondent, for purchase of best quality washhand basins with the result as stated above.;