Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
ABDULLA MOHAMMED PAGARKAR
Vs.
RESPONDENT:
STATE (UNION TERRITORY OF GOA, DAMAN AND DIU)
DATE OF JUDGMENT11/09/1979
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
FAZALALI, SYED MURTAZA
CITATION:
1980 AIR 499 1980 SCR (1) 604
1980 SCC (3) 110
ACT:
Criminal Trial-Public servant charged with the offence
of preparing false muster rolls, inflating wages and other
bills-Burden of proof on whom lies.
Indian Penal Code. Ss. 120(B)(1), 420, 468 and 471 &
Prevention of Corruption Act s. 5(1)(d)-Conviction under-
Validity of.
HEADNOTE:
A survey carried out by the Port Trust suggested that
the canal connecting two rivers required urgent deepening
and widening to make it navigable for barges during the
monsoon season when the sea turned rough and navigation
became hazardous across the mouth of the river. The
appellant (A-1) who at that time was the Captain of Ports
invited tenders through press advertisement and the
appellant in the Second Appeal (A-2) was the only person who
submitted a tender. Since the tender was the only one
received, the Lt. Governor forwarded it to the Central
Government for approval. He did not accept the suggestion
that in view of the urgency, the work might be taken up
immediately in anticipation of approval. Even so A-1
entrusted the work to A-2 who started the work. In the
meantime the Government of India directed that the work
should be carried out departmentally. A-1 obtained
concurrence of the public works department for payment of
daily wages to workers.
According to the prosecution, the modus operandi
adopted by the appellants was that A-2 actually submitted
hand-written statements without his signature on the work
done each day specifying the quantity of cubic meters of mud
and salt excavated, the number (without names) of male and
female labourers employed, the wages paid to labour at the
approved rates and so on. A-1 got the required statements
typed in his office and sent them for the concurrence of the
Finance Department through the concerned department.
Thereafter A-1 drew the amounts and paid cash to A-2 against
a regular receipt.
In course of time the Directorate of Accounts asked for
muster rolls of labourers employed in the work. A-1 prepared
a register and muster rolls. On a suspicion regarding the
genuineness of the muster rolls, the case was entrusted to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
the Central Bureau of Investigation which reported that
against a total sum of Rs. 4.73 odd lacs paid by the
Government to A-1 the work done was not worth more than Rs.
76,247/43.
The Special Judge convicted and sentenced both the
appellants on the ground that they had entered into a
conspiracy to cheat the Government in the matter of
execution of the work by presenting inflated bills and
receiving against them far greater amounts than had actually
been spent and that the muster rolls produced were false
documents. The Judicial Commissioner up held the findings of
the Special Judge.
Allowing the appeals,
^
HELD: 1. There is no evidence on record that the tender
submitted by A-2 was actually accepted by the Government and
that it was on that basis that the entire work was executed.
[612 B]
605
2. Although it may be correct to say that even a work
which is required to be carried out departmentally can be
entrusted to a contractor, in the instant case no bills were
drawn nor was sanction accorded to any payment on the basis
of any part of the work having been executed through A-2
working as a contractor. The bills contained the number of
labourers engaged and the amount pertaining to their wages
at the sanctioned rates. No mention was made in the bills
that the work was being carried out through a contractor. A-
2 did not sign any of the bills and his name as well as his
connection with the execution of the work remained
conspicuous by its absence therefrom. [612 C-E]
3. The onus of proof of the existence of every
ingredient of the charge always rests on the prosecution and
never shifts. It was incumbent on the State to bring out
beyond all reasonable doubt that the number of labourers
actually employed in carrying out the work was less than
that stated in the summaries appended to the bills paid for
by the Government. [614 D-E]
4. Although there was a difference between the number
of labourers engaged on each day as deposed to by the
prosecution witnesses and that shown in the bills it is not
safe to rely on mere impression of the prosecution witnesses
long after the work had been executed. [614 F]
5. The irregularities committed by the appellant in the
execution of the work do furnish a circumstance giving rise
to a strong suspicion in regard to the bonafides of the
appellants in relation to execution of the work, but mere
suspicion, however strong, cannot be a substitute for proof.
It is not possible to place the burden of proof of innocence
on the person accused of a criminal charge [614 H]
6. In regard to the value of work actually done there
was sharp disparity in the figures arrived at by the courts
below. The view of the Courts below that it was for the
accused to show that the number of labourers employed
conformed to that shown each day in the summaries attached
to bills, is an approach not sanctioned by law. [616 H-617
A]
7. The prosecution has not established that the bills
or the summaries were false in material particulars.
Although the appellants proceeded to execute the work in
flagrant disregard of the relevant rules and ordinary norms
of procedural behaviour of Government officials and
contractors in the matter of execution of works undertaken
by the Government, such disregard has not been shown to
amount to any of the offences of which the appellants have
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
been convicted. The findings of the lower courts no doubt
make the suspicion still stronger but it cannot be said that
any of the ingredients of the charge had been made out. [618
C, E-F]
8. Although some of the documents were prepared at the
instance of the appellants when a demand for them was made
by the Accounts Department, the charge cannot be sustained
in relation to any of its heads, their being no proof of
falsity of any of the entries made in those documents. [618
H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
224 and 268 of 1977.
606
Appeals by Special Leave from the Judgment and Order
dated 19-3-77 of the Judicial Commissioner’s Court. Goa,
Daman and Diu at Panaji in Criminal Appeal Nos. 19 and 21 of
1973.
T. Godiwala, P. C. Ghokhale and B. R. Agarwala for the
Appellant in Crl. A. No. 224/77.
S. Bhandare for the Appellant in Crl. A. No. 268/77.
H. R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J. 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:
------------------------------------------------------------
Serial Name of the Section of the law under Sentence
number accused which conviction recorded
of the
accu-
sed
------------------------------------------------------------
(1) (2) (3) (4)
------------------------------------------------------------
1. Abdulla (a) Section 120B(1) Rigorous imprison-
Mohammed read with sect- ment for two years
Pagarkar ions 420, 468 and a fine of Rs
and 471 of the 500/-,the sentence
Indian Penal in default of
Code as also payment of fine
Section 5(1)d being rigorous
of prevention of imprisonment for
Corruption Act. for one month.
(b) Sections 420 Rigorous imprison-
and 468 and ment for two years
Section 109 read and a fine of
with sections Rs. 500/-, the
468 and 471 of sentence in defa-
the Indian Panel ult of payment of
Code. fine being Rigo-
rous imprisonment
for one month.
(c) Section 5(2) Rigorous imprison-
section 5(1)(d) ment for two years
of the Preven- and a fine of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
tion of Corrup- rupees two lakhs,
tion Act. sentence in defa-
ult of payment of
fine being
rigorous imprison-
ment for eighteen
months.
607
------------------------------------------------------------
(1) (2) (3) (4)
------------------------------------------------------------
2. Moreshwar (a) Section 120B(1) Rigorous impriso-
Hari read with nment for two
Mahatme sections 420, years and a fine
468, 471 and 109 of Rs. 500/-, the
of the Indian sentence in defa-
Panel Code ult of payment of
as well as sec- fine being rigor-
tion 5(1)(d) of ous imprisonment
the prevention for one month.
of corruption Act.
(b) Section 5(1)(d)
of the Prevention
of Corruption Act
read with section
109 of the Indian
Penal Code.
(c) Sections 420, 468 Rigorous impriso-
and 471 read with nment for two
sections 109 of years and a fine
the Indian Panel of Rs. 500/-,
Code. the sentence in
default of
payment of fine
being rigorous
imprisonment
for one month.
(d) Section 5(2) read Rigorous impriso-
with section nment for two
5(1)d of the years and a fine
Prevention of of rupees two
Corruption Act lakhs, the
and section 109 sentence in
default of
of the Indian payment of fine
Penal Code. being rigorous
imprisonment
for eighteen
months.
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 sections 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, Marmagoa as also of the
Captain of Ports, Panaji. In his capacity last-mentioned,
the work of deepening and widening the Kumbarjua 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
mouth 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
608
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 5th of
January, 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 March 15, 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 (P.W.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 on May 26, 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 salt 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.
609
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
done was worth no more than Rs. 76,247.43. It was this
conclusion which led to the prosecution of the appellants.
3. 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
(PW.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 (PW. 4) used to
check the volume and the kind of material excavated daily
and to make entries in his notebook 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 (PW 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 (PW 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.
4. 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 sup-
610
plied 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.
5. 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 the
work was started by A-2 before the tender
submitted by the latter, which had been
forwarded by the Lieut. Governor for approval
to the Government of India, had been
accepted.
(b) Through a letter dated the 16th May, 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 P.W.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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
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
611
written statements containing details of
labour employed and submitted by A-2.
6. 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 manoeuvred, 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.
7. From the above findings the learned Special Judge
concluded that the two accused had entered into a conspiracy
to cheat the Government in the matter of the execution of
the work by presenting inflated bills and receiving against
them far greater amounts than had actually been spent, that
muster rolls ultimately produced to support the bills
contained false averments and were forged documents, and
that A-1 was fully aware that the certificate regarding the
work being carried out departmentally in accordance with
Rule 141 of the G.F.R. and appended to each of the bills was
false. It was also proved to his satisfaction that muster
roll exhibit P-36 and register exhibit P-37 were dishonestly
or fraudulently prepared by A-1 to support false bills and
that this was done with the assistance of A-2. The amount
really spent on the work done having been found by the
learned Special Judge to be only Rs. 32,287.75, he held that
the Government had been cheated into an excess payment of
Rs. 4,41,249.75.
It was in these premises that the learned Special Judge
convicted and sentenced the two accused as stated earlier.
8. The learned Judicial Commissioner upheld the
findings of fact arrived at by the learned Special Judge
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
except the one relating to the amount actually spent in
execution of the work which, in his opinion, was Rs.
76,247.43 as made out by the entries in books exhibits P-79
to P-82 which were recovered as a result of a search of the
house of A-2. The conviction recorded against and the
sentences imposed upon
612
the appellants by the learned Special Judge were therefore
confirmed by the learned Judicial Commissioner.
9. On behalf of the appellants it was vehemently
contended before us by their learned counsel that the tender
submitted by A-2 was actually accepted by the Government and
that it was on that basis that the entire work was executed.
In support of this argument there is not a shred of evidence
on the record and we have therefore no hesitation in
rejecting it straightway. In exhibit P-7 there is a clear
intimation to A-1 that the work was to be carried out
departmentally and that therefore he should obtain
concurrence of the P.W.D. to the rates applicable to various
items of work. Faced with this situation learned counsel for
A-1 submitted that even under Rule 141 of the G.F.R. any
work to be carried out departmentally could be entrusted to
a contractor and in that submission he is right. However, it
carries his case no further inasmuch as no bills were drawn
nor was any sanction accorded to any payment on the basis of
any part of the work having been executed through A-2
working as a contractor. On the other hand those bills
contained the number of labourers engaged for the work and
the amounts claimed pertained to their wages at the
sanctioned rates. In fact no bill contains even a mention of
the fact that any contractor was executing the work or that
A-2 was anywhere in the picture. Add to it the fact that A-2
did not submit any signed bills or statements either to A-1
or to the I.L.D. or, for that matter, to the Directorate of
Accounts. In so far as correspondence between A-1 on the one
hand and Government departments on the other is concerned,
the name of A-2 and his connection with the execution of the
work remained conspicuous by its absence except insofar as
the tender submitted by him was concerned and that tender,
as already stated, never became effective by its acceptance
by any department or office of the Government. The position
which the two appellants therefore took in no uncertain
terms throughout the period during which the work was
executed was that it was being handled directly by the
Department and not through any contractor. Any plea based on
its execution through A-2 as a contractor must therefore be
repelled.
10. A more serious argument put forward in support of
the appeals was that the work actually executed had not
really been shown to be worth anything less than the amount
paid for it to A-2, i.e., Rs. 4,73,537.50. The attack on the
findings to the contrary arrived at by the two courts below
consists of the submission that they are based really on
mere conjectures rather than on evidence. And this attack
appears to us, on a consideration of the material on the
record, to be well founded, as we shall presently show.
613
11. The amount of Rs. 4,73,537.50 was received by A-1
against 4 bills the details of which appear below:
------------------------------------------------------------
Serial Exhibit mark on the bill Amount of the bill
number
------------------------------------------------------------
Rs.
1. P-13 . . . . 98,294.50
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
2. P-18 . . . . . 82,811.00
3. P-24 . . . . . 84,847.00
4. P-28 . . . . . 2,07,585.00
-------------------
Total . . . .. . 4,73,537.50
------------------------------------------------------------
As already stated, each of the bills above mentioned
was accompanied by a document detailing the number of
labourers employed. Other particulars such as sex of and
rate of wages payable to each labourer also appeared in the
document which has been described as a "summary". It is
admitted on all hands that each bill conformed to the
corresponding "summary" but was not accompanied, when
submitted or passed, by any vouchers. The case propounded on
behalf of the State is that the summaries contained false
entries so that the number of labourers actually employed
for the execution of the work was grossly inflated and that
it was on that account that the appellants were able to draw
moneys from the State Treasury far in excess of those
actually paid by them for the execution of the work. On the
other hand, the claim on behalf of the appellants is that no
evidence at all is available to indicate that any of the
entries made in the summaries as also in the bills did not
conform to facts.
12. The learned Special Judge analysed the oral
evidence of PWs. 1, 4, 7, 8, 13, 14, 17, 19 and 20 and
observed that the number of labourers including the crew of
the country craft working at all the sites where dredging
was in progress during the period in question varied,
according to those witnesses, from 80 to 200. He further
noted the fact that in the statement recorded under section
342 of the Code of Criminal Procedure even A-1 had taken the
stand that the number of labourers found by him working at
the canal, whenever he visited the site, varied between 200
and 250. He then proceeded to quantify the amount of money
paid to the labourers at Rs. 32,287.75 with the following
observations:
"From the receipts produced by the prosecution
witnesses Nos. 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 20 and
21 it is seen that the amount paid by A.2 to the labourers
and country craft owners is to the tune
614
of Rs. 32,287.75. There was no suggestion of the Advocate of
A.2 to the Investigation Officer that besides the documents
produced by A.2, there were other receipts which were not
attached by the Investigating Officer and produced by the
prosecution. The only contention of A.2 appears to be that,
besides the amounts proved by the receipts above, there were
other amounts paid to the labourers for which receipts were
not collected. All the prosecution witnesses above had
denied the suggestion of A.2 that, besides the amounts for
which they have passed receipts, there were other amounts
received by them for which they have not passed the
receipts. Only P.W. 14 and P.W. 16 in their cross
examination, had admitted that besides the amounts for which
they had issued receipts, they were also paid for some work
on salary basis for which they were not issued receipts.
These amounts, however, could not, according to me, go to
thousands of rupees. Any how, it was for A.2 to prove that
he had spent amounts besides those proved by the prosecution
which A.2 had failed to do."
Now this is hardly a proper approach to the
requirements of proof in relation to a criminal charge. The
onus of proof of the existence of every ingredient of the
charge always rests on the prosecution and never shifts. It
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
was incumbent therefore on the State to bring out, beyond
all reasonable doubt, that the number of labourers actually
employed in carrying out the work was less than that stated
in the summaries appended to the bills paid for by the
Government. It is true that the total number of labourers
working on a single day has been put by the prosecution
witnesses mentioned above at 200 or less, while according to
the summaries appended to the bills it varied on an average
from 370 to 756. But then is it safe to rely on the mere
impression of the prosecution witnesses, testified to long
after the work had been executed, about the actual number of
labourers employed from time to time? The answer must
obviously be in the negative and the justification for this
answer is furnished by the variation in the number of labour
employed from witness to witness.
The mind of the learned Special Judge in coming to the
finding about the value of the work done being no more than
Rs. 32,287.75 appears to have been influenced by the gross
irregularities committed by the appellants in the execution
of the work, specially their failure to prepare vouchers
relating to all the payments as also a proper muster roll.
These irregularities no doubt furnish a circumstance giving
rise to a strong suspicion in regard to the bona fides of
the appellants in the matter of the execution of the work
but suspicion, however strong, cannot be a substitute for
proof. And it is certainly not permissible to place the
burden of proof of innocence on the person accus-
615
ed of a criminal charge. However, that is precisely what the
Special Judge appears to have done while observing that "it
was for A.2 to prove that he had spent amounts besides those
proved by the prosecution which A.2 had failed to do."
13. The finding of the learned Judicial Commissioner on
the point suffers from a similar defect. After examining the
oral evidence in relation to it he observed:
"The evidence of these witnesses clearly indicated
that the average total number of labourers working in
the Canal per day were 100 to 160. Taking an average of
123 labourers per day, out of which, on the basis of
the statements furnished by A.2, less than 12000 would
be males at the rate of Rs. 4.50 and a little more than
13000 females at the rate of Rs. 3.50, we have roughly
a total sum of Rs. 80,000/- spent on labour. This more
or less tallies with the amount mentioned in the
vouchers. Shri S. V. Naik has on behalf of A.2
suggested in cross-examination of these witnesses that
the average number of workers working in the canal per
day was 350 to 400. Even if we accept this figure the
total amount payable on account of the labourers
employed would be Rs. 3,00,000.00, but the accused have
collected a sum of Rs. 4,73,537.50."
He differed with the learned Special Judge on the point
of the value of the work actually done and in that behalf he
has reasoned thus in another part of the judgment:
"No account books or receipts were produced by A.1
or A.2 to the Government in support of the contingent
bills and of the claims for the amounts which they
received. No account books were produced or shown by
any one of them. It is not the case of A.2 that he did
not receive receipts for the payments made to the
labourers, nor is it his case that he did not have any
account books regarding the work. In fact, it would be
unbelievable that a businessman or a labour-supply
contractor should not keep account books or should not
receive receipts for payments made. It is not the case
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
of A.2 or A.1 that they had lost the account books or
the receipts. When a search was effected of the
residence of A.2, receipt books Exh. P. 79 and P. 82
and some books relating to the work were seized. When a
question was put to A. 2 under S. 313 of the Code of
Criminal Procedure, 1973, regarding this evidence,
616
his answer was that neither the receipt books nor the
books were account books. The receipts in the books are
in serial numbers from 101 to 700. In the first search
taken receipts bearing serial Nos. 151 to 200 for the
period from 14-4-66 to 25-1-68 were missing. These
receipts were all in one book, namely, Exh. P.82. Ex.
P.82 was seized on a subsequent search. Another book
Ex. P.82 was also found in subsequent search. This book
bears no serial numbers. All these three books
constitute Ex.P.79, 80 and P.82 containing receipts
relating to the work. The total amount mentioned in the
receipts relating to the work was Rs. 76,248.43. A.2
has not stated that he had vouchers for any other money
paid by him nor has he produced any such vouchers. P.Ws
No. 7 to 10 and 14 to 21, twelve in all, who did the
work of excavation in the canal have stated that they
passed receipts for all moneys received by them. When
suggestions were made to some of them that some
payments were made to them without receipts, they
denied the fact. The other books seized, namely, Ex. P.
81 collectively, were, according to A.2, cash books.
However, serial No. 23/II item No. 35, which was part
of Ex. P. 81 is definitely an account book and not a
cash book. In any event, A.2 does not rely on any of
these books nor has he said anything to show that any
payments were recorded therein, which are other than
the payments shown in Ex. P.79, 80 and 82. A.2 did not
examine any workers who worked in the canal and who,
according to him, had received any payments which were
not receipted for. It is evidence from Ex.P.79 to P.82
that some moneys spent in the work were receipted and
accounted for. Considering all these facts, the
question that A.2 might have paid any amounts without
receiving receipts can be ruled out. Ex. P.79 to P.82
together with the other evidence on record support the
version of the prosecution that the total amount of
work done by the accused did not exceed Rs. 76,248.43."
We may at once state that there is no evidence on the
record to indicate that the books seized from the premises
of A.2 contained entries about all the payments made by him
to the labour employed for the execution of the work and
that is a fact the correctness of which we see no reason to
presume. The danger of assumptions of the type made by the
two courts below is highlighted by the disparity in the
figures which they reached in relation to the amount of the
value above mentioned. Each had his own way of looking at
617
it; but then the grievous error into which they fell was
that they thought that it was for the accused to show that
the number, of labourers employed conformed to that shown
for each day in the summaries attached to the bills. And
that is an approach not sanctioned by law.
14. In coming to the finding under consideration the
learned Judicial Commissioner also took into consideration
the deposition of Lasli Rupert Donaud (PW-6) who surveyed
the canal in September, 1965 and again in May, 1969, i.e.,
both before and after the work had been executed and in that
connection prepared two documents, viz., exhibits P-55 and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
P-66, detailing his observations on the two occasions
respectively. According to the witness the volume of solids
to be dredged "to a depth of 10 feet below datum equals 5858
cubic metres". This figure is roughly one-fifth of 28,324.70
cubic metres which is the volume of total material alleged
by the appellants to have been actually removed during the
execution of the work and paid for. The argument advanced on
behalf of the State that the disparity in the two figures
itself shows that the claim of the appellants is false,
although attractive on the face of it is not acceptable to
us on a deeper consideration. According to PW-6, the
soundings taken on the two occasions were almost identical
from which it was sought to be deduced that practically no
work at all was done, which is not the case of either party.
This shows that either the contents of the two documents
represented observations which did not conform to facts or
which, in any case, could not be taken as a safe guide for
calculating the actual number of labourers employed during
the execution of the work which was carried out between the
two surveys. Besides, our attention has not been drawn by
learned counsel for the State to any evidence from which it
may be inferred that the portions of the canal where
soundings were taken by PW-6 represented the entire length
of the canal in relation to its breadth and depth. Again,
the silting process which is a continuous one, cannot be
lost sight of. In between the point of time when the first
survey was undertaken by PW-6 in 1965 and the end of the
period during which the work was executed, a lot of silt
must have settled at the bed of the canal and dredged out
which would surely mean a considerable increase in the work
actually done over the figure of 5858 cubic metres resulting
from his estimate. Also siltation may have occurred and, for
aught one knows, to a considerable extent, between the
completion of the work and the point of time when PW-6 took
the soundings in 1969. Allowance has also to be made for the
state of the tide when the surveys were undertaken. As
pointed out by the witness himself, the
618
soundings of 1969 were not taken at the lowest tide. As it
is, the witness had to make the following admission when he
was asked if he could say on the basis of his two surveys
whether any dredging was done in between:
"If some dredging is done during the year 66 and
67 in the Canal and the soundings are taken in 1969 if
it is almost identical to the soundings of 1965 I would
not be able to say whether dredging was done in the
Canal or not...."
We consider it very unsafe, in this state of the
evidence to agree with the learned Judicial Commissioner
that the disparity between the estimate arrived at by PW-6
and the volume of material claimed to have been dredged
proved "that the documents on which moneys were collected by
the accused are false". It appears to us that in coming to
this conclusion, he was also influenced by the factors which
raised a strong suspicion against the appellants.
15. Learned counsel for the State to buttress the
evidence which we have just above discussed with the
findings recorded by the learned Special Judge and detailed
as items (a) to (e) in paragraph 5 and items (i) and (iii)
in paragraph 6 of this judgment. Those findings were armed
by the learned Judicial Commissioner and we are clearly of
the opinion, for reasons which need not be re-stated here,
that they were correctly arrived at. But those findings
merely make out that the appellants proceeded to execute the
work in flagrant disregard of the relevant Rules of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
G.F.R. and even of ordinary norms of procedural behaviour of
Government officials and contractors in the matter of
execution of works undertaken by the Government. Such
disregard however has not been shown to us to amount to any
of the offences of which the appellants have been convicted.
The said findings no doubt make the suspicion to which we
have above adverted still stronger but that is where the
matter rests and it cannot be said that any of the
ingredients of the charge have been made out.
Apart from the findings and evidence referred to
earlier in this paragraph, no material has been brought to
our notice on behalf of the State such as would indicate
that the bills or the summaries in question were false in
any material particular.
16. Although it does appear that quite a few of the
documents admittedly prepared by or at the instance of the
appellants in connection with the execution of the work came
into existence not while the work was in progress but only
later when a demand for them was made by the Accounts
Department, the charge cannot be sustained in relation to
any of its heads, there being no proof of the falsity of any
619
of the entries made in those documents. In the result,
therefore, we accept both the appeals, set aside the
conviction recorded against and the sentences imposed upon
each of the appellants and acquit them of the charge in its
entirety.
N.V.K. Appeals allowed.
620