H H B GILL Vs. EMPEROR

JUDGEMENT

(1.) Appeals Nos. 624 and 625 of 1945 are appeals respectively by H.H.B. Gill and Anil Lahiri against their convictions and sentences, both appellants under Section 165 read with Section 120B, Indian Penal Code, and respectively under Secs.165 and 165 read with Section 109, Penal Code. They were sentenced to simple imprisonment for 3 months the former in Division I, and the latter in Division II, and also to pay a fine of Rs. 210 each with simple imprisonment for 14 days in default. These sentences were under Secs.165 and 165 read with Section 109, Indian Penal Code. No separate sentences were passed under Section 165 read with Section 120B, Indian Penal Code. Revision No. 1330 of 1945 arises from an application for enhancement of sentence. The appellant Gill was and is a Captain in the army. At the material time he held an appointment carrying with it the temporary rank of Major but having vacated that appointment he has now reverted to the substantive rank of Captain. His learned Counsel was at some pains to point out to us at the beginning of his argument that his client had not suffered a degradation in rank or the like but had merely come within the operation of army rules which in fact have affected large numbers of other officers; we have taken due note of this. For the sake of convenience the appellants will be referred to hereinafter by their surnames without further addition.

(2.) We set out the course of these proceedings briefly from the beginning, On 25-2-1943, a complaint was filed before the Chief Presidency Magistrate, at that time Mr. R. Gupta, alleging against Gill and Lahiri, that between March 1941 a July, 1942 Gill held the post of Deputy Assistant Director of Contracts and Deputy Controller of Purchase at Calcutta under the Chief Controller of Purchase (Munitions) in which capacity he was responsible for the issue and acceptance of tenders for purchase of materials in compliance with the indents made by the Director of Ordnance Factories and Director of Civil Production; that accused Lahiri was the proprietor of the Baranagar Engineering Works and a contractor for supplies on requisitions made by Gill. An anonymous letter was received mentioning Gill's name and on enquiries in connexion therewith a cheque for Rs. 500 was found issued by the accused Lahiri with the endorsements of both the accused and another person; and on a search of the house of accused Lahiri various papers were found including a diary and some counterfoils of cheques. That from these papers it appeared that Gill had been taking illegal gratification from Lahiri and that from official records it appeared that Gill had been showing undue favour to Lahiri in connexion with the latter's contracts and in particular that Gill showed an amount of eagerness to place orders with accused Lahiri in preference to other firms and that in doing so he wilfully misrepresented facts relating to supply by other competitive firms in order that accused 2 may get the orders for supply. On these averments the Police Officer who filed the petition complained that accused Gill had received illegal gratification from accused Lahiri ( Secs.161 and 161 read with Section 109, Indian Penal Code, respectively) and also from the manner and circumstances in which the tenders of accused Lahiri were accepted by accused Gill, there is reason to believe that they entered into a criminal conspiracy to commit offences under Secs.420 and 417, Indian Penal Code. Finally the petition recited consent under Section 270, Government of India Act, 1935, and sanction under Section 197, Criminal P.C., and consent under Section 196A(2) of the same.

(3.) The trial before Mr. Gupta opened on 6-4-1943. He framed charges on 4-5-1943, viz., against both the accused under Section 120B read with Section 420 and against accused Gill under Section 161 and accused Lahiri under Section 161 read with Section 109, Indian Penal Code. The charge against both accused set out the object of the criminal conspiracy as being to cheat the Government of India in the Department of Supply by dishonestly or fraudulently inducing its Financial Officers to pay larger sums of money than due (in respect of specified contracts) by means of false representation regarding...the rates quoted by Baranagore Engineering Works and character and capacity of supply made by them in preference to those of other firms. The latter charges were based on the payment of Rs. 500 by cheque (EX. 4) "as gratification other than legal remuneration for showing, in the exercise of your official functions" favour to accused Lahiri in the matter of a particular contract. It will be seen that there was a general charge of conspiracy to cheat and particular charges of bribery in respect of one1 particular sum in connexion with one particular contract. On 29-6-1943 Mr. Gupta recorded the examination of both the accused under Section 342, Criminal P.C., and on 19-8-1943, he acquitted them both.