KOSHAL, J. - (1.) BY this judgment we shall dispose of Criminal Appeals Nos. 224 and 268 of 1977 in both of which a judgment dated 19th of March, 1977 of the Judicial Commissioner Goa, upholding the conviction of the appellants and the sentences imposed upon them by the trial Court is challenged. The appellants were tried jointly by the Special Judge, Panaji, who found them guilty and awarded them punishments as specified in the table below: JUDGEMENT_110_3_1980Html1.htm All the substantive sentences of imprisonment in the case of each of the accused were directed to run concurrently. It may be stated here that the charges framed against them under Section 467 and 477A of the Indian Penal Code were not found proved and they were acquitted of the same.
(2.) THE prosecution case has to be set out at some length and may be stated thus. In the year 1965 the appellant Abdulla Mohammed Pagarkar (hereinafter referred to as A-1) was holding the post of Surveyor-in-charge, Mercantile Marine Department, Marmogoa as also of the Captain of Ports, Panaji. In his capacity last-mentioned, the work of deepening and widening the Kumbarjus canal which connects river Zuari with river Mandovi required his urgent attention as the canal had to be made navigable at low tide for the use of mine barges during monsoon season when the sea becomes rough and it is hazardous to navigate across the mount of the river Mandovi at Aguda. A survey of the canal had been carried out by the Marmagoa Port Trust and its report had been submitted to the concerned authorities. Tenders were invited by A-1 through an advertisement in the press and appellant Moreshwar Hari Mahatme (hereinafter described as A-2) was the only person to present one, which he did on the 5/01/1966. As the cost of the work exceeded rupees one lakh and the tender was a solitary one, the Lieut. Governor forwarded it to the Central Government for approval and did not accept a suggestion made by the Secretary to the Industries and Labour Department (to be hereinafter called I. L. D.) that the work be started immediately in anticipation of the said approval. Nevertheless A-1 entrusted the work to A-2 who started executing it on 15/03/1966. No approval of the tender was received from the Government of India who directed, however, that the work be carried out departmentally. Through a letter dated 16th of May, 1966 (Exhibit P-7), the said Secretary informed A-1 that as the work was to be executed departmentally the conditions laid down in Rules 133 and 141 of the General Financial Rules (G. F. R.) had to be fulfilled and directed him to obtain the concurrence of the Public Works Department (Prosecution witness D. for short) for the various rates mentioned in a bill which A-1 had submitted earlier for payment in connection with the work. Such concurrence was obtained by A- 1/05/1966, to payment of daily wages at the rates of Rs.4.50 and Rs.3.00 per head for male and female labourers respectively although the prevailing P.W.D. rates were Rs.3.50 and Rs.2.00 respectively (Exhibit P-9). THE two appellants entered into a conspiracy to cheat the Government in relation to the execution of the work. A-2 would submit occasionally to A-1 hand-written statements of the work done each day, specifying therein the details of quantity in cubic metres of the mud and self excavated, the number (without the names) of male and female labourers employed, the cost of labour in accordance with the approved rates, charges for the country craft employed, etc. None of these statements bore the signature of A-2. A-1 would get typed copies of these statements prepared in his office and would send one of such copies under his own signature to the I. L. D. for sanction which used to be accorded after the concurrence of the Finance Department had been obtained. THEreafter a contingent bill would be prepared in the office of A-1 and in that bill A-1 would certify under his own signature that the work was carried out departmentally in compliance with Rule 141 of the G.F.R. Each of such bills accompanied by the relevant copy of the statement of work signed by A-1 would be forwarded to the Accounts Department which would issue a cheque in favour of A-1 who would realise the amount of the cheque and pay it in cash to A-2 against a regular receipt. A stage was reached when the Directorate of Accounts objected to the payment of the bills and asked for muster rolls of labourers employed for execution of the work. A-1 then had prepared register exhibit P-37 and muster roll exhibit P-36 on the basis of entries in a copy book (exhibit P-47) which had been supplied to A-1 by A-2. THE entries in the muster roll having been found to be suspicious, the case was entrusted to the Central Bureau of Investigation who found that, as against a total amount of Rs.4,73,537.50 paid by the Government to A-1 and by him to A-2, the work done was worth no more than Rs. 76,247.43. It was this conclusion which led to the prosecution of the appellants. Now we shall give a resume of the defence stand taken by A-1. He held numerous offices in addition to that of the Captain of Ports and as such he had to perform multifarious duties while the staff placed at his disposal was grossly inadequate by any standards so much so that he did not even have an Accounts Officer. As the work of deepening and widening the Kumbarjua canal needed urgent attention, tenders for its execution were called and A-2 was found to be the only tenderer. A-1 was assured by the Secretary, I. L. D., that the necessary order approving the tender would soon be forthcoming and that the execution of the work should be taken in hand immediately in anticipation of orders. The Assistant Marine Surveyor, Shri D'Souza (Prosecution witness 4) was instructed to personally supervise the work which was started on the 15th of March, 1966. By the end of April, 1966, A-1 was told that the work should be executed departmentally by engaging labour and not through A-2. However that was not possible under the circumstances and the work proceeded as before, Shri D'Souza (P.W. 4) used to check the volume and the kind of material excavated daily and to make entries in his note-book accordingly. When objection was taken by the Directorate of Accounts at the end of the financial year to the passing of the bills on the ground that muster rolls were not being maintained, A-1 made enquiries from Shri D'Souza (Prosecution witness 4) and learnt that A-2 had maintained a gang-wise muster roll on the basis of which documents were prepared by Shri D'Souza (Prosecution witness 4) under the orders of A-1 and were submitted to the I. L. D. The work was executed in conformity with the bills submitted by A-1 to the Government. In any case, A-1 acted in good faith and if any of the bills did not conform to facts the reason must be that he had been cheated by A-2. The stand taken by A-2 in defence was more or less the same. He averred however that the bills were prepared not on the basis of labour engaged but on the volume of work done, that he never supplied any labour to A-1, that the total material excavated amounted to 35,516.70 cubic metres, that there was no question of keeping any muster or acquittance roll as the work was executed by the Labourers on piece-rate basis and that the average number of labourers working per day for execution of the work was about 700.
(3.) FROM the documentary evidence placed on the record at the trial the learned Special Judge found the following facts proved: (a) Under directions of A-1 the execution of work was started byA-2 before the tender submitted by the latter, which had been forwarded by the Leiut, Governor for approval to the Government of India, had been accepted. (b) Through a letter dated the 16/05/1967 (exhibit P-7) the Secretary, I. L. D., directed A-1 to have the work executed departmentally in accordance with the conditions laid down in Rules 141 and 133 of the G. F. R. and to obtain concurrence of the Prosecution witness D. to various rates applicable to the work. Such concurrence was actually obtained by A-1 (Letters exhibits P-8 and P-9). (c) The work was being carried out by A-2 with his own labour and no labour on muster roll was employed by A-1. (d) A-2 prepared statements of work or summaries which he submitted to A-1 who would then sign typed copies thereof and forward the same for sanction to the I. L. D. On receipt of such sanction A-1 would prepare contingent bills and sign each of them along with a certificate that the work was being carried out departmentally in accordance with Rule 141 of the G. F. R. as per the attached summary. Each bill would then be submitted along with the summary to the Accounts Department which issued the corresponding cheque to A-1. The amount of the cheque was then realised by A-1 and paid over to A-2 under a receipt. (e) Muster roll exhibit P-36 for the period from 15-3-1966 to 6-4-1967 was prepared in the office of A-1 and under his directions at a stretch after the completion of the work and on the basis of exhibit P-47 which A-2 had maintained. Register exhibit P-37 was similarly prepared on the basis of written statements containing details of labour employed and submitted by A-2. The learned Special Judge further arrived at the findings given below from the oral evidence produced before him: (i) A-2 was fully aware that his tender had not been accepted by the Government and that A-1 had been directed to carry out the work departmentally. (ii) The amount really spent by A-2 in execution of the work was no more than Rs. 32,287.75 against which he manoeuvered, with the assistance of A-1, to receive a sum of Rs.4,73,537.50 from the Government. (iii) None of the bills could have been sanctioned for payment by the Accounts Department but for the certificate appended by A-1 to each of them that the work was being carried out departmentally under Rule 141 of the G. F. R. ;