Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
NAKULA SAHU & ORS
DATE OF JUDGMENT30/11/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
KAILASAM, P.S.
CITATION:
1979 AIR 663 1979 SCR (2) 442
1979 SCC (1) 328
ACT:
Code of Criminal Procedure, 1898 - Sections 435 and 439
Scope of jurisdiction of High Court in revision.
HEADNOTE:
The respondents in each of the four appeals were
convicted and sentenced under s. 409 IPC by the Sub-
Divisional Magistrate. On appeal the Sessions Judge affirmed
the conviction and sentences passed against them. In
revision the High Court set aside the judgments and orders
passed by the trial court and the Sessions Court and
acquitted the respondents of all the charges.
On the question of (i) the scope of the power of
revision of the High Court under s. 439 read with s. 435 Cr.
P.C. 1898 and when it should be exercised; and (ii) whether,
in arriving at a concurrent finding, the trial court and the
Sessions 1 judge committed a manifest error on a point of
law which had resulted in flagrant miscarriage of justice.
Allowing the appeal,
^
HELD: (1) Although the revisional power of the High
Court under s. 439 read with 9. 435 of the Code of Criminal
Procedure, 1898 is as wide as the power of Court of Appeal
under s. 423 of the Code, it is well settled that normally y
the jurisdiction of the High Court under s. 439 is to be
exercised only in exceptional cases when there is a glaring
defect in the procedure or there is a manifest error on a
point of law which has consequently resulted in flagrant
miscarriage of justice. In Akalu Ahir v. Ramdeo Ram, [1973]
2 SCC 583 this Court held that in spite of the wide language
of s. 435 Cr. P.C. 1898 which empowered it to satisfy itself
as to the correctness, legality or properiety of any
finding. sentence or order recorded or passed by any
inferior court situate within the limits of its jurisdiction
and as to regularity of any proceeding of such inferior
court and in spite of the fact that under s. 439 of the Code
it can exercise, inter alia, the power conferred on a Court
of appeal under s. 423, the High Court is not expected to
act under s. 435 or s. 439 as if it is hearing an appeal.
The power being discretionary it has to be exercised
judiciously and not arbitrarily or lightly. Judicial
discretion means a discretion which is in formed by
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tradition, methodised by analogy and disciplined by system.
[447H; 448A-B]
Amar Chand Agarwalla, v. Shanti Bose & Anr. etc.,
[1973] 4 SCC 10 and Akalu Ahir v. Ramdeo Ram, [1973] 2 SCC
583 followed.
(2) Neither the trial court nor the Sessions Court
committed any error of fact or of law in arriving at their
conclusions and the High Court misdirected itself in
upsetting their concurrent findings ignoring the well
recognised principles for the exercise of revisional
jurisdiction. From the material on record it is clear that
the offences with which the respondents were charged were
brought home to them beyond reasonable doubt. [456E]
443
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
25-28 of 1972.
Appeals by Special Leave from the Judgment and Order
dated the 9th December, 1970 of the Orissa High Court in
Crl. Rewn. Nos. 188, 190, 191 and 192 of 1968.
D. Mukherjee, G. S. Chatterjee for the Appellant.
Pishori Lal Arora (Not Present) for Respondent in Crl.
A. No. 25/72.
Frank Anthony, (Crl. A. 26/72), Har Dayal Hardy (Crl.
A. 27-28/72), Mrs. S. Bhandare, A. N. Karkhnis and Miss
Malini Peduvel in Crl. A. Nos. 26-28/72 for Respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-By his judgment and order dated
November 30, 1965, the Sub Divisional Magistrate,
Bhubaneswar convicted Gopinath Patra, respondent in Appeal
No. 26 of 1972 under section 409 of the Indian Penal Code
and sentenced him to two years rigorous imprisonment and a
fine of Rs. 2,000/-. 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 section 409 read with section
109 of the Indian Penal Code and sentenced each one of them
to two years rigorous imprisonment and a fine of Rs. 2,000/-
. By the same judgment, the Sub Divisional Magistrate also
found all the four respondent guilty of the offence under
sections 120B 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 section 420 of the
Indian Penal Code. On appeal, the Sessions Judge, Cuttack
upheld the judgment and order of the Sub- Divisional
Magistrate and affirmed the conviction and sentence of the
respondents by his judgment and order dated May 1, 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 December 9, 1970. [t is M against
this judgment and order that the aforesaid appeals have been
filed by special leave.
444
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/- for purchase of wash hand basins
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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 Department, who was the drawing and disbursing
officer for the aforesaid budget provision of Rs. 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 C(Exh.1) dated September 30, 1961 to several dealers
in sanitary goods inviting quotations for supply of 2,000
best Indian make earthen ware wash hand 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: -
1. Wash Hand Basins 22" X 16" Barang make First
Quality: Rs. 70/- each
2. Wash Hand Basin 22" X 16" Barang make Second
Quality: Rs. 58/- each
On the comparative statement (Exh. 33 of the quotations
received in response to the aforesaid circular letter being
put up before him, P.W.7 accepted the quotation of the
Cuttack Plumbing Stores for supply of 1000 22" X 16", Barang
make, First Quality, wash hand basins vide Exhibit 3(4) at
the rate of Rs. 70/- per wash hand basin plus sale tax at 7%
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
October 13, 1961, the Cuttack Plumbing Stores was asked to
supply the wash hand 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. I Sub Division, 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 noted in the order
of supplies. Pursuant to work order (Exh. 5), Nakula Sahu,
proprietor of the
445
Cuttack Plumbing Stores supplied 1000 wash hand basins in
three instalments representing them to be of first quality
Barang Make and submitted bills in regard thereto as
detailed below:
------------------------------------------------------------
No. Of the wash Date of supply Exh. No.Of Amount of the Bill
hand basins supplied the bill accord-
ing to which
payment
demanded
------------------------------------------------------------
494 27-10-1961 19 Rs. 37,000.60
400 13-11-1961 22 Rs. 29,960.00
106 3-1-1962 25 Rs. 7,939.40
------------------------------------------------------------
On receipt of the supplies at the Public Health
Department Store, Niranjan Naik, respondent, who was
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incharge 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)."
Underneath the certificate of Niranjan Naik, Section
Officer Brahmananda Misra Sub Divisional Officer appended
his certificate and signed the same. Therefore, the bills
were checked in the office of the Executive Engineer who
made the payments by means of the cheques.
On November 16, 1961 i.e. after the first two supplies
but before the third supply, Lingaraj Das (P.W.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 wash hand basin and to give a certificate if they were
of first class quality as per specification in the tender.
By means of the aforesaid confidential letter, Gopinath
Patra was also told to submit a detailed
446
report about the quality of the wash hand 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 wash hand 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, P.W. 7 sent him a
reminder to expedite the reply but it was not before
December 9 1961 that the former sent the reply (Exh. 7)
certifying that 894 wash hand basins which had been supplied
by then by the Cuttack Plumbing Stores were all of first
quality. By means of Exhibit (7), Gopinath Patra further
informed the Public Health Engineer, Orissa that the Cuttack
Plumbing Stores had so far been paid Rs. 66,960.60,
including sales tax, for the aforesaid 894 wash hand basins.
On December 19, 1961, P.W. 7 placed order (Exh. 5) with
Cuttack Plumbing Stores for further supply of 500 wash hand
basins of the aforesaid quality and make at the rate of Rs.
68/- 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 wash hand basins on January 4, 1962, 410 wash hand basins
on October 1, 1962 and 40 wash hand basins on October 14,
1962 and submitted bills (Exhibits 29, 32 and 35) for Rs.
3,638.00, Rs. 29,831.60 and Rs. 2,910.40 respectively. On
these three bills also, Brahmananda Misra, Sub Divisional
Officer and Niranjan Naik, Section 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 March 28,1963, the Inspector of Police, Vigilance,
Cuttack seized vide seizure Memo (Exh. 73) from the Public
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Health Godown Bhubaneswar, of which Niranjan Naik, Section
Officer was incharge, 593 Barang Make wash hand basins
alleged to have been supplied to the Department by the
Cuttack Plumbing Stores and A.B. Ghosh (P.W.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 September 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 type of basins with
manufacturer 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 type of basins and the nature of
major
447
defects have also been noted in the statements." Thereupon
the. authorities made an inquiry from M/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 wash hand basins and the rest of the wash hand
basins purchased by it by auction or otherwise from the
Company and dishonestly passed not to and accepted by
respondents, Niranjan Naik, Brahmananda Misra and Gopinath
Patra as first quality wash hand basins were either second
quality or rejected ones which did not at all conform to the
specifications mentioned in the tender quotations (Exh. 23
and the supply order (Exh. 4). On these facts, the
respondents 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/- entrusted by
the State to Gopinath Patra, respondent for purchase of best
quality wash hand basins with the result as stated above
In these appeals, it has been urged by counsel for the
State of Orissa that the facts and circumstances proved in
the case are incompatible with the innocence of the
respondents and are incapable of explanation on any
hypothesis other than the guilt of the respondents for the
offences with which they were charged and that the order of
their acquittal passed by the High Court in exercise of
revisional jurisdiction which as acknowledged by this Court
is a limited one has resulted in grave failure of justice.
On the other hand, it has been contended by counsel for the
defence that there is no infirmity in the impugned order and
the High Court was justified in acquitting the respondent in
exercise of its plenary revisional power as the material on
record was not sufficient to sustain their conviction
On the submission of counsel for the parties, two
principal points arise for consideration by us (1) the scope
of the power of revision under section 439 read with section
435 of the Code of Criminal Procedure, 1898 and when it
should be exercised and (2) whether in arriving at
concurrent findings, the trial court and the Sessions Judge
committed any manifest error on a point of law which had
resulted in flagrant miscarriage of‘justice.
So far as the first point is concerned, it is to be
emphasized that although the revisional power of the High
Court under section 439 read with section 435 of the Code of
Criminal Procedure, 1898 is as wide as the power of Court of
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Appeal under section 423 of the Code, it is now well settled
that normally the jurisdiction of the High Court under
section 439 is to be exercised only in exceptional cases
when
448
there is a glaring defect in the procedure or there is a
mainfest error on a point of law which has consequently
resulted in flagrant miscarriage of justice. Reference in
this connection may be made to the decisions of this Court
in Amar Chand Agarwalla v. Shanti Bose & Anr. etc.(1) and
Akalu Ahdr v. Ramdeo Ram(2), In the latter case viz. Akalu
Ahir v. Ramdeo Ram (supra) this Court follolwing its earlier
decision in Amar Chand Agarwalla v. Shanti Bose & Anr etc.
(supra) held that in spite of the wide language of section
435 of the Code of Criminal Procedure, 1898 which empowered
it to satisfy itself as to the correctness legality or
propriety of any finding, sentence or order recorded or
passed by any inferior court situate within the limits of
its jurisdiction and as to the regularity of any proceeding
of such inferior court and in spite of the fact that under
section 439 of the Code it can exercise inter alia the power
conferred on a court of appeal under section 423 of the
Code, the High Court is not expected to act under section
435 or section 439 as if it is hearing on appeal. The power
being discretionary, it has to be exercised judiciously and
not arbitrarily or lightly. Judicial discretion, as has
often been said, means a discretion which is informed by
tradition, methodised by analogy and disciplined by system.
This takes us to the consideration of the second point.
In relation to this point, it may be observed that nothing
has been brought to our notice on behalf of the respondents
to indicate that there was any glaring defect in the
procedure adopted by the lower courts or that there was a
manifest error on a point of law in the judgments and orders
passed by them which had resulted in flagrant miscarriage of
justice which needed to be set right by the High Court.
A scrutiny of the evidence which we have made at the
request
of the counsel for the parties shows that there was not
even any misappreciation of evidence on the record by the
lower courts which could be said to have resulted in gross
failure of justice warranting interference by the High
Court.
We may at this stage indicate that while adverting to
the evidence, we shall be confining ourselves to the case
against Gopinath Patra and Niranjan Naik, respondents in
Appeals Nos. 26 and 28 of 1972 respectively, as the other
two appeals Nos. 25 and 27 of 1972 against Nakula Sahu and
Brahmananda Misra have abated due to their death during the
pendency of the appeals in this Court.
Out of the 17 witnesses examined by the prosecution to
bring home the aforesaid offences to the respondents, the
evidence of
(1) [1973] 4 S.C.C 10.
(2) [1973] 2 S.C.C. 583.
449
P. Ws. 2, 14, 5, 7, 8, 11, 12, 13, 15 and 17 deserve special
mention.
P. P. Bahuguna (P.W. 2) who is the Sales Manager of
Orissa Industries Ltd., Barang, since 1956 has deposed that
accused Nakula Sahu used to transact business with his
Company as proprietor of N. C. Sahu & Sons and Cuttack
Plumbing Stores; that detailed entries showing the date,
invoice No. and total bill amount of every sale effected by
his Company are made in the Sales Day Book, cash book and
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ledger of the Company and that in the ledger, the
transactions with different customers are mentioned in
separate folios. The witness has by reference to copies of
invoices existing on file No. C. 157 (Exh. 11) consisting of
391 pages containing the record relating to all the
transactions of Orissa Industries Ltd. with the Cuttack
Plumbing Stores and Nakula Sahu & Sons and ledgers [Exh. 12
to 12(4)] evidencing all transactions with Nakula Sahu,
Cuttack Plumbing Stores and N. C. Sahu & Sons and containing
cross references to invoices testified that it was for the
first time in June 8, 1959 that the Cuttack Plumbing Stores
purchased three wash hand basins 22" X 16" of Class I
quality from his Company; that from June, 1961 to February,
1962, the Cuttack Plumbing Stores purchased 1704 Class II
and 300 Class III wash hand basins 22"X16" from his concern;
that apart from these sales there has been no other sale of
wash hand basins to accused Nakula Sahu or Cuttack Plumbing
Stores or N. C. Sahu & Sons; that Nakula Sahu was
transacting business with his Company in respect of all the
aforesaid invoices; that in the years 1961 and 1962, the
price of class I wash hand basin 27’’X16 was about Rs. 53/-
per piece and price of Class II and Class III wash band
basin 27’’X16’’ was about Rs. 38.50 and Rs. 23/- per piece
respectively; that glass and ceremic products became subject
to Central Excise duty for the first time with effect from
the mid-night of February 28,1961 and that from that date
marking of gradations by stamp and indelible ink were given
on wash hand basins produced by his Company; that wash hand
basins produced by his Company are marked with rubber stamp
as 1st, or 2nd or Com. Or 3rd according to the different
gradations of the products; that in some cases, the wash
hand basins are marked as I, II, Com., or Ill, in place of
1st, 2nd, Com. Or 3rd respectively; that of all the
gradations 1st or I are the best quality; that first quality
products are those which have no blemish; that the second
quality basins are those having minor defects without
affecting their utility; that the third quality products are
those having major defects either affecting or not affecting
their utility; that by II submitting quotations his Company
had made known to the Government Departments that there were
wash hand basins of different
450
gradations in his concern; that the gradation marks 011 the
wash hand basins made by his concern are the surest guide to
the customers regarding the quality of goods. The witness
has further affirmed that during the years 1961 and 1962
i.e. from February 28, 1961 to the end of 1962, only 70 to
80 first quality i.e. Class I wash hand basins were produced
by his Company and were stamped as such; that from February
28, 1961 to the end of February, 1962 only 54; Class I
(first quality) wash hand basins 22’’X16’’ were produced by
his Company; that in November, 1961 and December, 1961, no
First quality wash hand basins were manufactured. in the
factory of his Company and that though his Company has been
attempting to produce first quality wash hand basins, it has
not succeeded in producing them in large numbers.
K. L. Sigtia (P.W. 14) who is the Secretary, orissa
Industries Ltd., Barang, since 1951 has corroborated the
statement of P. P. Bahuguna (P.W. 2) in all material
particulars with regard to all the business transactions
made by his Company with the Cuttack Plumbing Stores, Nakula
Sahu and M/s Nakula Sahu & Sons including 200 numbers of
wash hand basins 26"X16" which as per invoice 1] (24) were
sold in auction by the Company to the Cuttack Plumbing
Stores at Rs. 15/- per piece. He has also stated that the
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wash hand basins produced in his factory prior to March 1,
1961 (when the Central Excise duty was levied on the
potteries including the wash hand basins) were sorted out
and stocked separately according to their grades; that after
the introduction of excise duty, his Company graded the wash
hand basins into there classes viz. First, Second and Third
and the markings were given on the said wash hand basins as
l, II or III according to the gradations as directed by the
Central Excise office; that after six months, the Excise
staff told them to change the markings as 1st, IInd or IIIrd
according to the aforesaid three gradations and accordingly
for first grade, they gave marking 1st, for second grade,
they gave marking IInd and for third grade, they gave
marking IIIrd and that ’Orissa’ is the trade mark of their
firm. The witness has by reference to file Exhibit (ll)
affirmed that it was on June 8, 1959 that the Cuttack
Plumbing Stores for the first time purchased three 22" X 16"
wash hand basins for ’first quality from his concern vide
Exhibit 11 (2) which bears the signature of Nakula Sahu;
that during the period 1959 to 1962 Nakula Sahu or Nakula
Sahu & Sons or Mis Cuttack Plumbing Stores did not purchase
any wash hand basins from his Company’s factory except those
entered in Sales Day Book [Exh. 65 to Exh. 65 (18) ]. He has
further affirmed that his Company does not produce any wash
451
hand basins called the best quality wash hand basins. The
witness A; has denied that his concern ever sold any second
class wash hand basins representing them to be of best
quality.
Nabaghan Misra (P.W. 5) who is the Head Clerk in the
office of the Executive Engineer, Public Health Department,
Bhubaneswar has stated that on receipt of copy of the work
order, The concerned Executive Engineer of the Public Health
Department directs his subordinates to receive the
commodities; that after the commodities are supplied, the
suppliers submit their bills to the authority who receives
the commodities. Ultimately, the Executive Engineer of the
concerned Division makes payment by cheques. He has further
stated that the commodities supplied are physically received
by the Overseer who is the Section Officer of the concerned
Division; that the Section Officer is required to receive
the supplies according to the specifications noted in the
order for supply, to enter the commodities received by him
in the Measurement Book and to give a certificate in that
book that the supplies are according to the specifications
of the order; that thereafter the Sub Divisional Officer of
the Division has to- check the supplies with reference to
the specifications given ill the order and put his
signatures in the Measurement Book; that the stock registers
of the supplies received are maintained in the office of the
Sub Divisional Officer; that Section Officer and the Sub
Divisional Officer endorse certificates on the order as to
the correctness of the supplies in terms of the
specifications in the order; that thereafter the bill is
checked in the office of the concerned Executive Engineer
and after payment order is made by the Executive Engineer on
duplicate voucher prepared by the Section Officer and
countersigned by the Sub Divisional Officer, payment is made
by cheque issued by the Executive Engineer; that Exhibit 19
is the bill for Rs. 37,060/- submitted by the Cuttack
Plumbing Stores of which the accused Nakula Sahu is the
proprietor, in respect of the supply of wash hand basins,
494 in number of the specifications and quality mentioned
therein; that the corrections in ink arc made by accused
Niranjan Naik, the then Section Officer and are initialled
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by him; that the endorsement and the certification at the
bottom are in the writing of the accused Niranjan Naik and
contain his signature dated October 28, 1961; that the
corrections in the endorsement have been initialled by
accused Niranjan Naik; that Exhibit 20 is the running
account bill prepared in the office of Niranjan Naik, the
then Section Officer in relation to Exhibit 29 and bears the
signatures of both Niranjan Naik, Overseer and Brahmananda
Misra, Sub Divisional Officer. The witness has also
identified the signature and initial of the accused Gopinath
Patra on Exhibit 20(4) and has stated that alter compliance
452
with all the formalities, cheque for the aforesaid amount
was made over to accused Nakula Sahu on October 28, 1961.
The witness has likewise proved bills (Exhibits 22 and 25)
ill regard to payment of Rs. 29,960/- and Rs. 7,939.40
respectively.
Lingaraj Das (P.W. 7) who was the Public Health
Engineer and also the Controlling Officer of the Public
Health Department during the relevant time has stated that
on receipt of the quotations called by him vide Exhibit 1,
he accepted the quotations of the Cuttack Plumbing Stores
and placed an order (Exh. 4) with the latter for supply of
wash hand basins of the make, specifications and quality and
at the rate and on the conditions noted therein. The witness
has also proved the aforesaid letter (Exh. 6) addressed by
him to Gopinath Patra and the reply (Exh. 7) received from
the latter certifying that 894 wash hand basins were of
first quality. He has further stated that by first quality,
he meant that the wash hand basins should be without any
manufacturing defects.
A. B. Ghosh (P.W. 8) who has passed the examination in
Sanitary Engineering and Water Supply as a special subject
has stated that he was working as Executive Engineer,
Verification Officer, for all departments under the Public
Works Department; that under orders of the Secretary,
Sanitary Works Department, he inspected and verified 593
numbers of "Orissa" 22" X 16" wash hand basins supplied by
accused Nakula Sahu and stocked inside the Public Health
Department Godown at Bhubaneswar, the key of which was with
accused Niranjan Naik; that the inspection and verification
was commenced by him on August 30, 1963 and completed on
August 31, 1963 in the presence of accused Niranjan Naik who
pointed out the 593 wash hand basins, which were in a
separate stock, as having been supplied by accused Nakula
Sahu; that on verification, he did not find any class I wash
hand basins in the said 593 wash hand basins and that almost
all the said wash basins had manufacturing defects and bore
markings II or IInd or III and only a few had no marks as
stated by him in his inspection and verification report
(Exh. 49). During his deposition before the courts also, the
witness examined the said wash hand basins and gave in
detail the manufacturing defects observed by him on each one
of them. He has further stated that fire cracks, dents,
blisters, uneven surface, unglazed patches, undulating
surface and uneven holes in any place of basins are the
manufacturing defects and those defects cannot occur after
manufacture is over; that on verification, he found almost
all the aforesaid wash hand basins bearing the marks II or
III which led him to presume that those were the marks of
classification. The witness has
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denied that glazed patches will become unglazed due to bad
storage and handling or that any wash hand basin would
become unglazed by friction.
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Pursottam Kar (P.W.10 ) who, took over as Sub
Divisional Officer, Project I., Public Health Department,
Bhubaneswar in January, 1963 has on the basis of monthly
stock register (Exh. 45) of Project I stated that 22"X16"
wash hand basins numbering 494, 400, 106, 410 and 40 were
received at the godown of the Public Health Department,
Bhubaneswar from the Cuttack Plumbing Stores on October 28,
1961, November 13, 1961, January 3, 1962, January 31, 1962
an(l February 13, 1962 respectively. He has further stated
that in 1957 only thirty 22"X16" wash hand basins were
received; that in 1958 and 1959, no 22"X16" wash hand basins
were received and that in 1960 only eight 22"X16" wash hand
basins were received. He has further stated that at the time
of verification, accused Niranjan Naik told him that the
wash hand basins verified vide Exhibits 50 and 55 were
supplied by accused Nakula Sahu.
D. N. Singhdeo (P.W. 11) who is the Executive Engineer,
Public Health Department has stated that in April, 1963, he
went to the Store of the Public Health Department,
Bhubaneswar with Misra, Assistant Pottery Manager of Orissa
Industries, Rao, Inspector of Central Excise and Dass,
Intelligence Officer and verified some of the wash hand
basins. The stock of the wash hand basins which were to be
verified were shown to him by accused Niranjan Naik, the
then Overseer incharge of the Store.
Sachidananda Misra (P.W. 12) who was Incharge of
Production in Konark Ceramics, Athgarh from 1960 to 1964 has
affirmed that the first quality wash hand basins mean wash
hand basins having no manufacturing; defect.
P. Ram Krishna Rao (P.W. 13) who is the Central Excise
Inspector, Mauza Jaipur has stated that during the time he
was working in Orissa Industries Ltd., Barang as Assistant
Pottery Incharge, rubber stamp marks were put on the wash
hand basins produced in the factory showing their quality
and gradation such as I or IInd or only II or IIIrd or only
III or IVth or only ’IV’ as the case was; that very small
number of first quality wash hand basins were being produced
and that at the time of the aforesaid verification, rubber
stamp marks II or III were there.
Abdul Rasid Khan (P.W. 15), L.D.C. in Sales Tax Office,
Cuttack, West Circle has by reference to the record stated
that in the application (Exh. 68) made by the Cuttack
Plumbing Stores,
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Nakula Sahu has signed as
proprietor/Manager/Partner/Principal Officer of the said
firm; that on the said application, Registration Certificate
No. CU 12681 dated December 27, 1956 showing Nakula Sahu as
Proprietor of the Cuttack Plumbing Stores and that Exhibit
69 is the office copy of the said certificate and that on
October 20, ]963, the said certificate was renewed for the
year 1963-64.
Prasanta Chandra Das (P.W. 17) who is the Inspector of
Police attached to Vigilance Branch has stated that on March
28, 1963 he seized 593 wash hand basins of Barang Make
bearing ’Orissa’ Trade Mark from Public Health Department
Stores, Bhubaneswar as pointed out by Niranjan Naik,
accused.
From the resume of the prosecution evidence as given
above, it is abundantly clear that quotations in regard to
the supply of first quality, barang make, 22"X16" wash hand
basins submitted by the Cuttack Plumbing Stores, of which
Nakula Sahu was the proprietor were accepted by P.W. 7 and
work order for supply of 100 wash hand basins of the
aforesaid quality, make and size was issued to the former by
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the latter; that Gopinath Patra who as Executive Engineer,
Public Health Department Bhubaneswar, was entrusted with and
had dominion over Rs. 1,95,420/- for purchase of wash hand
basins and other sanitary fittings entered into criminal
conspiracy with Niranjan Naik, who was Section Officer of
Project No. 1 Sub Division, Public Health Department,
Bhubaneswar and other accused for commission of criminal
breach of trust punishable under section 409 of the Indian
Penal Code; that in pursuance of the said conspiracy,
Gopinath Patra committed criminal breach, of trust in
respect of a huge amount of Government funds by dishonestly
purchasing between October, 1961 and February, 1962 wash
hand basins from the Cuttack Plumbing Stores which were not
of first quality, barang make as specified in the tender but
were substantially inferior in quality and value to those
basins; that pursuant to the said conspiracy, Niranjan Naik,
accused dishonestly accepted and took delivery of sub
standard wash hand basins differing materially in quality
and value from those which were contracted to be supplied
and indented for knowing pretty well from their gradation
marks which were a sure guide about their quality that they
were of inferior quality and appended false certificates in
the Measurement Book and on the aforesaid bills Nos. 19, 22
and 25 presented by the Cuttack Plumbing Stores to the
effect that the supplies of wash hand basins made by it were
correct according to . the specifications mentioned in the
order and consequently abetted Gopinath Patra in the
commission of the offence of criminal breach of trust
punishable under section 409 of the Indian Penal Code and
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thereby committed an offence under section 409 read with
section A 109 of the Indian Penal Code; that from February
28, 1961 to the end of 1962 A.D. Only seventy to eighty
first quality wash hand basins were produced by Orissa
Industries Ltd., Barang; that except for three first quality
wash hand basins purchased by the Cuttack Plumbing Stores in
June, 1959 from Orissa Industries Ltd., Barang, the rest of
the wash hand basins purchased by Nakula Sahu either in his
individual capacity or as proprietor of N. C. Sahu & Sons or
as proprietor of the Cuttack Plumbing Stores from the said
Company were all of II or III gradation and as such were
substantially inferior in quality and value to the
specifications mentioned in the tender (Exh. 2) and the work
order (Exh. 4) and that save and except the number of wash
hand basins detailed ill their depositions before the Court
by P.Ws. 2 and 14, who are Sales Manager and Secretary
respectively of Orissa Industries Ltd., Barang, no other
wash hand basins were purchased by Nakula Sahu or N. C. Sahu
& Sons or cuttack Plumbing Stores, of which Nakula Sahu was
the proprietor.
The plea of Gopinath Patra that he acted bonafide on
the certificates of the Section Officer and Divisional
Officer whose duty it was to verify the quality of each and
every wash hand basins on receipt of the consignments and
passed bills Nos. 19, 22 and 25 in a casual manner and that
894 wash hand basins which he inspected under orders of the
Public Health Engineer conveyed to him vide Exhibit 6 were
of Barang Make, first quality, and 593 wash hand basins
which were seized by P.W. 17 under Exhibit 73 were not from
894 wash hand basins verified by him in Exhibit 7 is totally
falsified by the clinching evidence furnished by Exhibit 7
dated December 9, 1961 which. it will be recalled was sent
by Gopinath Patra in rely to the confidential communication
addressed to him by P.W. 7. In this Exhibit 7 Gopinath Patra
clearly informed P.W. 7 that he had inspected each and every
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one of the 894 wash hand basins which had up to that date
been supplied by the Cuttack Plumbing Stores and found them
all of Class 1 Barang make. The conclusion is, therefore,
irresistible that Gopinath Patra actively connived at the
delivery and acceptance of inferior quality of wash hand
basins by the supplier which did not at all conform to the
specifications given in the tender submitted by it or in the
supply order placed by him and dishonestly passed orders for
payment of first quality goods knowing that the wash hand
basins supplied were of inferior quality and thus committed
criminal breach of trust in respect of a huge amount of
Government funds and that in order to conceal his guilt he
purposely gave false certificate vide Exhibit 7 that 894
wash band basins supplied by the Cuttack Plumbing Stores
(out of which 593
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were seized by P.W. 17 and verified by P.W. 8 to be
defective and of II or III quality) were all of first
quality and conformed to the specifications in the supply
order although in the proved facts and circumstances, none
could be of first quality. That this was so and he furnished
the aforesaid certificate even without caring to visit the
Public Health Department Store, Bhubaneswar for physical
verification as directed by his superior is further evident
from the fact that he omitted to make even a mention in
Exhibit 7 about the quality of 106 numbers of wash hand
basins which had been indisputably received in the Store
before he sent reply Exhibit 7 to the aforesaid confidential
query made by P.W. 7 vide Exhibit 6.
The further plea of the accused that 593 wash hand
basins seized from the Public Health Department Store by
P.W. 17 were not from amongst those supplied by the Cuttack
Plumbing Stores also stands negatived from the evidence of
P.W. 8 (who verified the said wash hand basins at the
pointing out of Niranjan Naik) as also from the evidence of
P.Ws. 10, 11, 12, 13 and 17.
Thus it is manifest that neither the trial court nor
the Sessions Judge committed any error of fact or of law in
arriving at their conclusions and the High Court misdirected
itself in upsetting their concurrent findings ignoring the
well recognised principles for the exercise of revisional
jurisdiction. From the material on the record. we are
satisfied that the offences-with which Gopinath Patra and
Niranjan Naik were charged were brought home to them beyond
any reasonable doubt.
From the foregoing reasons, we set aside the aforesaid
judgment and order of the High Court acquitting Gopinath
Patra and Niranjan Naik and convict them for the offences
with which they were charged and held guilty by the trial
court. Keeping however, in view the fact that the said
respondents are likely to lose their jobs and must have gone
through a lot of mental and financial strain during the
prolonged proceedings before the courts lasting for over
fourteen years, we think that a consolidated fine of Rs.
10,000/- in ease of each of the respondents will meet the
ends of justice. Accordingly while remitting the substantive
sentence of imprisonment, we impose a sentence of fine of
Rs. 10,000/- on each one of the said respondents viz.
Gopinath Patra and Niranjan Naik. In default of payment of
fine, each one of the said respondents shall undergo
imprisonment for a period of six months. The fine shall be
deposited within a
457
period of two months from today failing which the aforesaid
respondents shall surrender themselves to their bail bonds
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to undergo the aforesaid imprisonment imposed on them in
default of payment of fine.
P.B.R. Appeal allowed.
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