1. The above referred three appellants in three different appeals as original accused Nos. 1, 2 and 4 respectively and acquitted accused Madhukar Vithal Patekar were tried in Special Case No. 2 of 1977 in the Court of the Special Judge, Ahmednagar, for offences punishable under (1) Section 120-B I.P.C. and (2) Section 420 read with Section 120-B I.P.C. In addition to the above charges, which were framed against all the accused, original accused Nos. 1, 2 and 3 who were officers from various departments working under the Zilla Parishad, Ahmednagar and the Panchayat Samiti Parner, were further charged for offences punishable under Section 477-A read with Section 120-B I.P.C. and Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act and further read with Section 120-B, I.P.C. Alternatively, a charge for substantive offences punishable under Sections 420 and 477-A read with Section 109 and/or S. 34, I.P.C. was also framed against all the four accused. The learned Special Judge, while acquitting original accused No. 3 Madhukar Vithal Patekar, who was Extension Officer (Works) working under the Panchayat Samiti, parner of all the offences charged and while acquitting the first three accused of an offence punishable under Section 5(2), Prevention of Corruption Act, read with Section 120-B. I.P.C. found that original accused No. 1 Dadasaheb Bapusaheb Naik, Extension Officer (Works under the Panchayat Samiti, parner, original accused No. 2 Malikarjun Parappa Walekar, Deputy Engineer working under the Zilla Parishad, Ahmednagar and original accused No. 4 Popat Rangnath Shinde, a contractor, were guilty of a substantive offence of criminal conspiracy to commit an offence punishable under Section 120-B(1) I.P.C. as well as of an offence of cheating committed in furtherance of the criminal conspiracy punishable under Section 420 I.P.C. read with Section 120-B I.P.C. The original accused Nos. 1 and 2 were further convicted for an offence of falsification of accounts punishable under Section 477-A read with S. 120-B I.P.C. Different sentences of imprisonment and fine were imposed on original accused Nos. 1, 2 and 4 and feeling aggrieved by this judgment and order of conviction and the consequential sentences, the above referred three appeals have been filed. Since they arise out of the same judgment, they were heard together by agreement of parties and are being disposed of by this common judgment.
2. For the purpose of convenience, I propose to refer to the appellants in the three appeals referred to above by their original accused numbers. Accused No. 1 D. B. Naik was working as an Extension Officer (Works) in the Panchayat Samiti, Parner, District Ahmednagar, at the relevant time. This post is equivalent to the post of Overseer as known in Public Works Department. Original accused No. 2 M. P. Walekar was working as Deputy Engineer of the Zilla Parishad, Ahmednagar, and was in charge of a Sub-Division consisting of Ahmednagar and Parner Talukas at the relevant time. The acquitted accused No. 3 M. V. Patekar was working as Junior Extension Officer in the B. and C. Sub-Division of the Zilla Parishad, Ahmednagar. Accused Nos. 1 and 3 were the subordinates of accused No. 2. Original accused No. 4 P. R. Shinde was working as a contractor taking contracts of different works from the Zilla Parishad, Ahmednagar.
3. In or about November 1968, the Panchayat Samiti, Parner, resolved to construct Vasant Bhandaras in 10 Villages, namely, (1) Tikhol, (2) Supa, (3) Kanher Ohia (Parner), (4) Alkuti, (5) Palshi, (6) Rayatale, (7) Loni Haveli, (8) Padali Ranjangaon, (9) Kinhi and (10) Hunge. The proposed construction of these Vasant Bhandaras was a part of grow more food campaign. It consisted of a scheme of constructing small dams on streamlets and rivulets in the villages for supplying water to the crops. Construction of these small dams involved utilisation of wooden planks and Ahmednagar Zilla Parishad had sanctioned a grant of Rs. 55,000/- to Parner Panchayat Samiti for the construction of Vasant Bhandaras during the year 1968-69. Passing of the necessary Resolution by Parner Panchayat Samiti for construction of Vasant Bhandaras in the 10 villages referred to above constituted administrative approval of the construction work. Plans and estimates for this work of construction of Vasant Bhandaras in the 10 villages referred to above were admittedly prepared by accused No. 1 Naik and were checked by R. B. Raktate (P.W. 28), Assistant Extension Officer (Works). These plans and estimates form part of a file which has been collectively exhibited as Ex. 101 in this case. One of the major items in each plan and estimate related to supply of country cut teak would planks of the size of 4' x 6' x 3' with three coats of tar at the work site and the rate of supply of such teak wood was calculated at Rs. 974/- per cubic meter on the basis of 'Scheduled of Rates' for the relevant year prevalent in Ahmednagar B. and C. Division. Accused No. 2 Walekar, in his capacity as Deputy Engineer, was enjoined with the duty of giving technical sanction to the above referred work and he gave it on 19th February 1969. A tender notice inviting quotations is alleged to have been fixed to the Board at the office of Parner Panchayat Samiti for the above referred work on 1st February 1969. It is admitted by all the parties that the total amount of the estimated cost of teak wood planks supporting wooden girders as calculated from the estimates for the 10 villages in question from the file (Ex. 101) comes to about Rs. 27,000/-. In pursuance of the tender notice (Ex. 86), four quotations, being Exs. 88 to 91, were received. The quotation of accused No. 4, quoting the rate of Rs. 972/- per cubic meter, was the lowest. It was accepted, Accused No. 2 Walekar issued a Work Order to accused No. 4 Shinde on the next day, that is, on 10th February 1969. It is at Ex. 92. Its office copy is at Ex. 87. In Ex. 87, the Work 'Sagawani,' meaning teak wood, has been added in different ink and in different handwriting. Ex. 92 does not contain reference to teak wood and, therefore, it is alleged by the prosecution that the addition of the word 'Sagawani' in Ex. 97, which is a typed copy of the Work Order, is an interpolation.
4. In or about March 1969, accused No. 4 Shinde, purchased planks of ordinary jungle wood from a timber depot, known as Vakhar in vernacular, belonging to Dagadu Dudhaji Ekade (P.W. 8) of Ahmednagar. These planks were transported to the 10 villages in question and were handed over to the respective Sarpanch as or other persons on behalf of the Sarpanchas between 18th March 1969 and 28th March 1969. The prosecution has examined Govind (P.W. 5). Dharmaji (P.W. 20) and Nivruti (P.W. 21), who worked as truck drivers for this purpose. Murlidhar (P.W. 19) happened to be the truck owner. Sarpanchas or panchas or other persons accepting wooden planks on behalf of the Sarpanchas for the purpose of Vasant Bhandaras were examined as prosecution witnesses. They are Rangnath (P.W. 1), Dasharath pawar (P.W. 2), Jayaram Rokade (P.W. 7). Prataprao Jondhale (P.W. 17), Bholuji Dhudhade (P.W. 18) and Raghu Tange (P.W. 22). Receipts for respective wooden planks proved by these witnesses and placed on record by the prosecution and agreed to be exhibited on a concession from the defence are at Exs. 44, 68, 70, 77, 27 and 81 to 84. All these receipts are typed receipts. There is no reliable evidence as to where from they originated, though one of the Sarpanchas, being Dasharath Pawar (P.W. 2), has stated that the Patwari of his village produced the relevant receipts and said that they were sent by the office of Chairman, Panchayat Samiti, Parner. The importance of referring in detail to these receipts is that they are typed receipts in Marathi with blank spaces left for denoting the name of the village, the type of planks and the number of planks. In the blank space behind the word 'planks' nothing is filled, while the names of villages and the quantity of planks have been written in ink. The prosecution has not adduced any evidence to establish that either accused No. 1 or accused No. 2 received these planks or had an occassion to inspect these after they were supplied by accused No. 4 to the various village sites.
5. Accused No. 1 recorded measurements in the measurement book (Ex. 108) on 26-3-1969, showing in column No. 2 with the heading 'Particulars of work' :-
'Supplying c.c. teak wood planks of size 4' x 6' x 3' to the site of the work including tarring, two coats, etc. comp.'
Down below this entry, he has written allocation of these planks for Vasant Bhandaras to 9 villages giving the total number of planks for each of the villages. He has not mentioned about the 10th village Tikhol, which has been added by accused No. 2 in his own handwriting, showing 281 planks. Total number of planks for all the 10 villages came to 1967. Below the total, there is an endorsement by accused No. 1 'measurement recorded' duly signed. On the same page, there is an endorsement by accused No. 2, which is to the effect :-
'Measurements initialled, Checked by me.'
This endorsement bears the date 28-3-1969, while the endorsement of the measurements by accused No. 1 is dated 26th March 1969. Measurements initialled are serial No. 8, Padali Ranjangaon, 144 numbers; serial No. 9 Kanher Ohia, 160 numbers and serial No. 10 Tikhol, 381 numbers. On the same page, we find another endorsement in Marathi made by accused No. 4 Shinde, which is to the effect :-
'Above measurements accepted.' Mention of teak wood in column No. 2 is in English and all the rest of the endorsement and writings also are in English. It is an admitted position that accused No. 4 was educated up to 3rd Marathi standard and did not know English. The above referred measurements and endorsements, which are on page 28, are followed by an endorsement in red ink that the supply work was passed for Rs. 25,047/-. It has come in the prosecution evidence that an amount at the rate of Rs. 72/- per cubic tonne was deducted from the agreed rate of Rs. 972/- because the planks or some of the planks were not tarred. The other relevant page is page 33 where an endorsement of passing the final bill of Rs. 2,003.76 P. has been made. The amount of Rs. 25,047/- has been passed on 30th March 1969, while the balance has been passed on 3-7-1969 after the deficiency of omission to tar the planks was removed. It has further come in the prosecution evidence that these payments were made to accused No. 4 by cross payee's account cheques, but these cheques were converted into bearer cheques on directions in that behalf from the Block Development Officer, Parner, who was the disbursing authority and from whose office the cheques were issued. The relevant bills, which were prepared by accused No. 1 for Rs. 25,047/- and Rs. 2,003.76 P., are at Ex. 109 and Ex. 110. The prosecution case is that the words 'teak wood' were falsely written in the measurement book by accused No. 1 and the endorsement regarding the 10 per cent checking which accused No. 2 had to do was also falsely made. According to the prosecution, the result of this false measurement was the false bills (Exs. 109 and 110) which, in their turn, induced the Block Development Officer of Parner Panchayat Samiti to issue cheques for the two amounts of Rs. 25,047/- and Rs. 2,003.76 P. Had teak wood not been mentioned, such payments would not have been made. Taking into account the difference in the prices of jungle wood and teak wood, the prosecution claimed that an excess amount of Rs. 17,032/- was paid to accused No. 4, thereby causing wrongful loss to the Panchayat Samiti, parner, to that extent. After taking into account the cost of transport, tarring, etc., the learned trial Judge has estimated this excess payment at Rs. 10.000/-.
6. At the instance of Mr. V. A. Jadhav, a member of the Zilla Parishad, Ahmednagar, the Chief Executive Officer. Zilla Parishad, inspected the wooden planks lying in the office of the Sarpanchas of two villages and submitted a report dated 16-12-1969 (Ex. 118). According to this report, the planks were tarred and it was difficult to ascertain as to whether they were all teak wood or not. This report has been placed at Ex. 118 through Manoharlal (P.W. 35), who was working as Awal Karkun in the General Administration Department of the Zilla Parishad, Ahmednagar. The Executive Engineer concerned has not been examined as a witness. The defence has placed reliance on this report in view of the ultimate proposal contained therein that all the planks should be checked and the excess payment made to the supplier should be recovered from him. A complaint relating to the inferior quality of the wooden planks in question appeared in two local newspapers, 'Nagar Times' and 'Pravara', in 1970 and one Dr. Tapkir undertook a fast for this alleged irregularity as well as other irregularities which existed in the working of the Zilla Parishad Ahmednagar. As a result of all this agitation, show cause notices were issued to accused Nos. 1 to 4, followed by a report to the Anti-Corruption Department and the present prosecution.
7. The prosecution cited about 100 witnesses, but examined 36 in view of certain positions admitted by the defence. Accused No. 2 Walekar examined defence witness Imambhai to prove his allegation that on 28th March 1969 he visited the timber depot for checking the wooden planks which were to be supplied by accused No. 4 to the 10 village sites in question. The other two defence witnesses examined on behalf of accused Nos. 3 and 4 were on the point of publication of news items in the newspapers referred to above.
8. While admitting that he prepared the estimates containing reference to teak wood for Vasant Bhandaras in question and while admitting that the planks supplied by accused No. 4 were not teak wood planks, though the tender notice (Ex. 86) required supply of teak wood planks, and further admitting that the measurements in Ex. 108 were made by him and the bills (Exs. 109 and 110) were prepared by him, accused No. 1 contended that in the last week of March 1969, accused No. 2 Walekar told him (a) to write measurements as per receipts, (b) to write 'teak wood' since Walekar had examined the wood, (c) to put the date of recording of measurements as 26th March 1969 and (d) to prepare bills (Exs. 109 and 110) on that basis. According to the defence of this accused, though it is proved that the relevant regulations required of him to go to the spot, inspect the work and record the measurements, he did not do so in view of the directions given by accused No. 2 and because it was the fag-end of the financial year and the work had to be completed before the end of the financial year in a hurry and at the instance of the Panchayat Samiti itself because otherwise the result would have been lapse of grants.
9. Accused No. 2 Walekar denied that he gave any instructions to accused No. 1 as alleged. According to him, he believed the measurements recorded by accused No. 1 after making a sample checking at the timber depot (Vakhar) of one Dagadu Ekade situated at Tilak Road, Ahmednagar. He alleged that the wooden planks to be supplied at the various villages in question for Vasant Bhandaras were stacked in a heap at this timber depot and he examined the planks which were to be supplied to three villages and endorsed those particular measurements on Ex. 108, adding the 10th village Tikhol since it was not written by accused No. 1 in the measurement book. He contended that the signatures of Kashinath Khilari (P.W. 24), the Sabhapati of Parner Panchayat Samiti, were obtained in due course and he was giving false evidence. According to him, the clerk concerned made the necessary correction in Ex. 87, the office copy of the Work order, but did not make the said correction in, Ex. 92, the Work Order which was sent to accused No. 4. He maintained that accused No. 4 Shinde definitely knew that he was to supply teak wood planks, the cost of which was at least twice the cost of jungle wood.
10. I need not refer to the defence of accused No. 3 since he has been acquitted on the ground that the prosecution had not adduced sufficient evidence to connect him with the alleged conspiracy.
11. Accused No. 4 Shinde contended that he did not see the tender notice (Ex. 86) and came to know about it from a clerk in the office of the Panchayat Samiti, Parner. That clerk could not tell him the type of wooden planks required and, therefore, he made inquiries from accused No. 8 Walekar, who told him that he should supply wooden planks similar to those which were used previously for construction of Vasant Bhandaras. According to him, the quotation of the rate of Rs. 972/- for jungle wood planks was perfectly all right. At an earlier stage of the departmental inquiry, this accused had taken a stand vide his written statement (Ex. 119) that accused No. I Naik and accused No. 2 Walekar were responsible for the entire fraud and he was as innocent tool in their hands and had received the appropriate price of jungle wood planks alone and not a paisa more. During the trial, his case was that Ex. 119 was given at the office of Shankarrao Kale, President, Zilla Parishad, Ahmednagar, who wanted to fix up Walekar and Patekar and who alleged that the said two officers were not coming clean with regard to the alleged fraud in the construction of the 10 Vasant Bhandaras in question. According to him, he was told that nothing would happen to him and, therefore, he gave a statement implicating accused Nos. 1 and 2, which is at Ex. 119. At the stage of trial, he denied the statement and contended that Ex. 92, the Work Order supplied to him, never mentioned that he was to supply teak wood and, therefore, he was perfectly justified in supplying jungle wood. He admitted that he made an endorsement in Marathi, admitting measurements in the measurements book (Ex. 108), but he never knew that it contained a reference to teak wood. According to him, the measurements were correct and that is what he had admitted.
12. Taking the facts alleged and proved by the prosecution and the defence of each of the accused admitting some of the facts while denying others in their anxiety to establish their innocence, it will be convenient for the decision of these appeals to catalogue the admitted or abundantly proved facts as well as the facts disputed individually by the accused persons before examining the correctness of the finding given by the trial Court regarding acceptance or rejection of those facts. The learned trial Judge has referred to 11 important conclusions deduced from the facts proved in this case in para 75 of his judgment. I propose now to refer to all these conclusions, though in a different grouping for the purpose of convenience :-
Admitted or abundantly proved facts.
(1) Accused No. 4 did not supply planks of teak wood and supplied planks of inferior jungle wood, the difference between the prices of these two types of wood as prevalent then being roughly about double.
(2) The accounts and disbursement office of the B.D.D., Parner Sub-Division, would not have parted with an amount of nearly Rs. 27,000/- as price for the wooden planks supplied at the sites of the 10 villages for construction of Vasant Bhandaras by accused No. 4, unless the measurements represented that it was teak wood and the bills (Exs. 109 and 110) were prepared on that basis.
(3) The prosecution had failed to prove that accused No. 1 and/or accused No. 2 made any wrongful gain out of this transaction.
(4) The prosecution had established and accused No. 4 had admitted that he received Rs. 25,047/- and Rs. 2,003.76 P. represented by the bills (Exs. 109 and 110) by two cheques.
(5) The planks and estimates for the work in question, as prepared by accused No. 1, contemplated wooden planks of teak wood as the materials for use in construction of Vasant Bhandaras in question and the tender notice placed on the Notice Board, being Ex. 86, was regarding supply of teak wood planks. Disputed facts :
(1) It is contended by the prosecution as well as accused No. 1 Naik and accused No. 2 Walekar that the quotation given by accused No. 4, which is at Ex. 88, was for supply of teak wood planks only, even though it did not in terms refer to 'teak.' The basis for this contention is that Ex, 86, the tender notice, was admittedly for supply of teak wood planks. Though Ex. 88 does not in terms refer to this tender notice (Ex. 86), it does refer to Vasant Bhandaras and, therefore, it has to be read in conjunction with Ex. 86, the tender notice, the result being that Ex. 88, the quotation from accused No. 4, is impliedly a quotation for supply of teak wood planks. This is a contention which has found favour with the learned trial Judge also. Accused No. 4 disputed this position at the trial stage, though at one time at the stage of departmental inquiry he had admitted this position vide his written statement (Ex. 119). At the trial Stage, he claimed that Ex. 119 was the written statement given by him under the pressure of Chairman Shankarrao Kale of the Zilla Parishad, Ahmednagar. Since this statement (Ex. 119) given by accused No. 4 in the departmental inquiry is an exculpatory statement, which does not paint accused No. 4 himself with the same brush with which accused Nos. 1 and 2 are painted, it cannot be admissible and read against accused Nos. 1 and 2 in view of the provisions of S. 30, Evidence Act. Therefore, what remained at the stage of trial was contention of accused No. 4 that the Work Order (Ex. 92), which he received did not mention that he was to supply teak wood planks and, therefore, he was not bound to supply teak wood planks. He contended that the tender notice (Ex. 86) was an invitation for proposal and the tender quotation (Ex. 88) given by him was a proposal which, if accepted, would get converted into a contract. The proposal did not refer to teak wood. Its acceptance was Ex. 92, the Work Order. Admittedly, it also does not refer to teak wood. Therefore, there was no contract to supply teak wood planks and he was acting within the limits of his legal rights in supplying jungle wood planks. If the department felt that the contract was for supply of teak wood planks, nobody prevented it from refusing to accept the supply of jungle wood planks. There was no inducement on his part to the department of the Panchayat Samiti or the Zilla Parishad by making any misrepresentation that what he was supplying was teak wood and, therefore, there was no question of cheating so far as he was concerned. The gain, which he made, was not a wrongful gain in the circumstances of the case.
(2) Another important area of a keen controversy is as to whether the alleged non-compliance by accused No. 1 to follow the Maharashtra Zilla Parishads and Panchayat Samitis Accounts Code, 1968 as well as the Rules for taking measurements printed on page 1 of the measurement book while recording measurements in the measurement book (Ex. 108), at the instance of and on the Say of accused No. 2 as alleged by him, was an intentional act or a non-intentional negligent act. The relevant Rules require that an Extension Officer has to take measurements by going to the site where the work is being carried on. Admittedly, accused No. 1 did not do this.
(3) The Rules further require 10 per cent checking by accused No. 2, but it was not pointed out from the Rules and Regulations that this 10 per cent checking has also to be done on the site. Accused No. 2 has contended that he did this 10 per cent checking in the timber depot (Vakhar) of Dagadu Ekade on 28th March 1969 before the supply of the wooden planks at the sites by accused No. 4 and he found them to be those of teak wood. To the argument of the prosecution that this also amounted to non-compliance with the Rules because the checking was to be done after supply and not before supply, the reply of accused No. 2 is that at the most it could be termed as irregular or negligent, but it was difinitely not intentional.
(4) So far as Marathi endorsement of accused No. 4 accepting the measurements is concerned, the defence contention is that he did not know English and, therefore, it was not possible for him to read the words 'teak wood' in Column No. 2 of the measurement book (Ex. 108) and that, in any case, what he has admitted is the quantity measurement and not the quality of the wood.
13. The admitted and proved facts as well as the disputed facts referred to above are covered by the 11 conclusions at which the learned trial Judge has arrived at in para 75 of the judgment. According to the learned trial Judge, the question as to whether there was a conspiracy to cheat the Zilla Parishad or the Panchaya, Samiti, Parner, by preparing false record as between the accused persons could be answered in the affirmative on the basis of the above referred facts and conclusions to be drawn therefrom. The relevant observations are in para 66 of the judgment, which are to the following effect :-
'66. I must next consider whether there was a conspiracy to cheat the Zilla Parishad by preparing false record and if so who were the parties to that conspiracy. There is no direct evidence about the conspiracy in the sense that they had agreed to commit the offences at a particular time. But the circumstances on record are sufficient to hold that there was a conspiracy and what accused Nos. 1, 2 and 4 have done was done by them in pursuance of that conspiracy. The conspiracy must have been hatched some time before the preparation of tender notice. Supply of jungle wood planks instead of supplying teak wood planks by accused No. 4 and their acceptance by accused Nos. 1 and 2 with full knowledge and recording of false measurements and preparation of false bills by accused Nos. 1 and 2, are, in my opinion, sufficient to conclude that there was a criminal conspiracy between accused Nos. 1, 2 and 4 to cheat the Zilla Parishad.'
14. There is no conviction recorded by the learned Special Judge for offences of cheating and falsification of accounts with the aid of S. 109 or S. 34, I.P.C. There was no charge and, therefore, no conviction for substantive offences punishable under Section 420 or S. 477-A of the I.P.C. The only conviction is for an offence of cheating punishable under Section 420 with the aid of S. 120-B. I.P.C. and of accused Nos. 1 and 2 for falsification of accounts punishable under Section 477-A with the aid of S. 120-B, I.P.C. These convictions are besides the conviction of accused Nos. 1, 2 and 4 for the offence of criminal conspiracy, which is a substantive offence under Section 120-B, I.P.C. and takes place even if the offences for which an agreement is entered into by the accused does not take place.
15. Admittedly, this is a case wherein the prosecution rests entirely on circumstantial evidence for proving the alleged criminal conspiracy between accused Nos. 1, 2 and 4 to cheat the Zilla Parishad and/or the panchayat Samiti. Parner by preparing false accounts. It appears that the investigating agency thought that the circumstances referred to above were sufficient enough to establish a clinching case of conspiracy without any direct evidence. In cases of conspiracy, though it is true that direct evidence other than that furnished by an approver is not generally available, it cannot be disputed that in those cases of conspiracy in which the prosecution relies only on circumstantial evidence to establish a criminal agreement between the accused persons to commit an alleged offence, it is necessary for the prosecution to prove and establish such circumstances as would lead to the only conclusion of existence of a criminal conspiracy. If there are circumstances compatible with innocence of the accused persons, the prosecution cannot succeed on the basis of such circumstantial evidence.
16. There are cases of criminal conspiracy in which evidence adduced by the prosecution for proving criminal conspiracy is the same as evidence for establishing the offence which is alleged to be the object of the criminal conspiracy. I feel that in such cases if the prosecution is not able to establish its case so far as the main offence constituting the object of criminal conspiracy is concerned, it will be extremely unsafe to find the accused persons guilty of abetment of the said offence with the aid of S. 120-B, I.P.C. unless by unimpeachable evidence, circumstances incompatible with the non-existence of criminal conspiracy are established by the prosecution.
17. Examining the facts of the present case, it appears that the prosecution is not in a position to adduce any evidence to establish that accused No. 4 Shinde made any misrepresentation so as to induce the Zilla Parishad and/or the Panchayat Samiti. Parner, to part with an amount which can be said to be wrongful loss to them. The only argument advanced in that behalf is that the quotation (Ex. 88) given by accused No. 4 must be read in conjunction with the tender notice (Ex. 86) and, therefore, there was a representation or a misrepresentation that accused No. 4 was supplying planks of teak wood. It is extremely difficult to accept this argument because Ex. 88 is a proposal and nobody can be compelled to give his proposal in a particular fashion. An omission to mention teak wood in the proposal (Ex. 88) could amount to a misrepresentation or a dishonest inducement only if there was a legal duty cast upon accused No. 4 to mention teak wood in Ex. 88. As I see it, there was no obligation on accused No. 4 to make a mention of teak wood in his proposal (Ex. 88). The result is that the prosecution has been able to prove that accused No. 4 is the person who has obtained some gain which may or may not be wrongful. The prosecution has not been able to establish the necessary element of inducement by misrepresentation by accused No. 4 for establishing an offence of cheating. As against this, so far as accused Nos. 1 and 2 are concerned, even the learned trial Judge has found that the prosecution has not been able to establish that accused No. 1 and/or accused No. 2 stood to gain anything from the transaction in question. It is thus extremely difficult to make out a case of substantive offence of cheating against any of the accused and, therefore, the prosecution must stand or fall accordingly as it succeeds or does not succeed in establishing a criminal conspiracy between accused Nos. 1, 2 and 4 to cheat.
18. During the course of arguments, the prosecution has laid particular emphasis on some conclusions at which the learned trial Judge arrived after appreciating the prosecution evidence in this case. Firstly, if was submitted that the date '1-2-1969' put under the tender notice (Ex. 86) is bogus, as observed by the learned trial Judge in para 41 of the judgment. The reasoning is that accused No. 2 gave his technical sanction on 19th February 1969 and, therefore, it was not possible in the nature of things to take out a tender notice on 1st February 1969. The contention may be true, but it is not possible to make use of this particular circumstance against accused No. 1 or accused No. 2 for the simple reason that if it is an incriminating circumstance, it should have been put to them during their examination under Section 313, Criminal P.C., affording them an opportunity to explain the implications. It is admitted that no such question was put. It was further submitted by the prosecution in this behalf, by inviting my attention to the Maharshtra Zilla Parishads and Panchayat Samitis Accounts Code, 1968, that the tender notice in question should have been published in newspapers. R. 133 of the said Accounts Code provides that subject to the provisions of R. 136, tenders in the prescribed form have ordinarily to be invited publicly for all works given out on piece-work basis in such manner as the Executive Engineer, Parishad, may deem suitable. It was contended that in terms of this Rules as well as further R. 135, tenders should invariably be invited for works above the value of Rs. 5.000/-. It was contended by the learned Public Prosecutor that Ex. 86, the tender notice, was deliberately not published in newspapers by accused Nos. 1 and 2. A reference to R. 136, subject to which R. 133 operates, discloses that tenders need not be invited by notice in newspapers if the Executive Engineer, Parishad, records his reasons for not inviting tenders. It is an admitted position that the tenders in question were invited in 1969, that is, at the fag-end of the financial year. It cannot be disputed that the amount of grant would have lapsed if the contract was not finalised before 31st March 1969. Under the circumstances, one does not know as to what order the Executive Engineer, Zilla Parishad, Ahmednagar, passed in the present case. None of the parties present before the Court is in a position to make any statement in this behalf. A perusal of the statements of accused Nos. 1 and 2 discloses that their attention was not invited to these Rules and they were not asked as to why the tender notice was not published in the newspapers. One does not know what explanation they would have given if they were asked such a question.
19. The second conclusion of the learned trial Judge upon which the prosecution placed its reliance is contained in para 47 of the judgment. According to this conclusion, the defence of accused No. 2 that he visited the timber depot (Vakhar) on 28th March 1969 for making 10 per cent checking of the measurements in question must be a falsehood. The number of wooden planks supplied at all the villages, except Tikhol, tallied with the number of wooden planks given in the estimates. It was only in the case of village Tikhol that it was found that on 1st March 1969, as stated by Raghu Tange (P.W. 22), only 381 wooden planks were supplied instead of the original estimated number of 384 planks and, therefore, the necessary correction was made in the receipt (Ex. 77) by putting the figure 381 instead of 384 as originally filled in. The prosecution contends that if this was so, it was not possible for accused No. 2 to come to know on 28th March 1969 that the planks to be supplied to village Tikhol were 381 and not 384. According to the observation of the learned trial Judge, as contained in para 47 of the judgment, it was impossible to accept that accused No. 2 came to know on 28th March 1969 that the planks to be supplied to village Tikhol were 381 because the planks were kept in a heap. I do not find any evidence to support this conclusion. It is not possible to come to a definite conclusion that the alleged date '28-3-1969' of the visit of accused No. 2 to the timber depot was a false date because he had written 381 planks in front of village Tikhol in the measurement book (Ex. 108) in his own handwriting and that he could not have done so because the planks were in a heap.
20. The third conclusion of the learned trial Judge upon which reliance has been placed by the prosecution in these appeals is contained in para 57 of the judgment. According to this reasoning, the contention of accused No. 2 that he told the clerk concerned to add the word 'Sagawani' (teak) in the Work Orders and that the clerk concerned added such a word in Ex. 87 but failed to add if in Ex. 92 for reasons known to him, was liable to be rejected and the prosecution allegation that the said word was added in Ex. 87, the office copy of the Work Order, afterwards was liable to be accepted. Kashinath Khilari (P.W. 24) has admitted that the word 'Sagawani' (teak) was there in Ex. 87 when the office copy was placed before him for his signature. The evidence of Khilari, Sabhapati of Parner Panchayat Samiti, has not been challenged by the prosecution. When the attention of the learned Public Prosecutor was invited to this part of the evidence of Khilari, he stated that the said piece of evidence was not liable to be accepted because it was contrary to the prosecution story. It is extremely difficult to accept the prosecution contention in this behalf in view of the clear unchallenged testimony of P.W. 24 Khilari referred to above.
21. There is one more circumstance referred to in the judgment of the learned trial Judge concerning the diaries of accused Nos. 1 and 2 to which, I feel, it is necessary to refer before going to the legal aspects involved in this case. The diary of accused No. 1 is at Ex. 111 and the diary of accused No. 2 is at Ex. 112. Both these accused are sought to be condemned by reference to the contents of these diaries. The learned trial Judge has found in para 50 of the judgment that if the defence of accused No. 2 was that he visited the timber depot of Dagadu Ekade on 28th Mar 1969 for sample checking, a mention of this fact should have found place in the diary (Ex. 112) maintained by accused No. 2. On a perusal of the entire diary, it is found that the defence contention that this diary was not meant for entries regarding work done at the headquarters appears to be true. Ex. 112 covers the period from 1st February 1969 to 30th April 1969 and it does not contain even a single entry relating to work done by accused No. 2 at his headquarters, that is, Ahmednagar. Another criticism advanced with the help of this diary (Ex. 112) is about the failure of accused No. 2 to check the wooden planks when he visited Supa and Rayatale. The entry dated 22nd Mar 1969, showing the visit of accused No. 2 to Supa, Parner and three other villages, relates to inspection of road works along with the Executive Engineer. It is difficult to appreciate an argument that accused No. 2, while inspecting roads passing through four villages along with his superior Executive Engineer, should have found time to inspect the wooden planks, the work with which the Executive Engineer was not concerned. Similarly, the entry dated 28th March 1969 in Ex. 112 relating to the visit of accused No. 2 to village Rayatale states that he visited about 14 or 15 villages on that day for inspection of tank works and road works. It may be that during the course of this visit to about 15 villages, he had an occasion to visit village Rayatale also, but when the work which was undertaken on that day related to inspection of tank works and road works, I do not think that it could be reasonably argued that he should have also checked the wooden planks for Vasant Bhandaras supplied to village Rayatale.
22. Kashinath Khilari (P.W. 24) was the Chairman of Parner Panchayat Samiti. While dealing with the defence comment that the claim of this witness that he went on signing blank papers and envelopes one after another at the instance of accused. No. 2 was an extremely tall claim and not believable, the learned trial Judge relied upon a blank envelope (Ex. 93) produced by the prosecution and having the signature of Kashinath Khilari (P.W. 24) in one corner with nothing else written on it. It appears from the record that the evidence of this witness was recorded on 17th April 1978 and his examination-in-chief was continued on 18th April 1978. He was cross-examined on the same day, but some cross-examination was further continued on 19th April 1978. At the end of the cross-examination, the A.P.P. appearing for the State requested for re-examination and it was at the stage of re-examination that a blank envelope was shown to the witness and he stated that the signature thereon was his. This blank envelope is at Ex. 93. I have perused the list of documents, which is in the file containing unproved documents. It does not appear from the said list that this blank envelop with the signature of P.W. 24 in the corner was produced along with the investigation papers. In the circumstances, the inference is that the blank envelope (Ex. 93) must have been produced at the stage of re-examination of this witness and the question that arises is as to what importance should be attached to such a document. Moreover, it was rightly pointed out on behalf of the defence that the introduction of an altogether new evidence was not within the scope of re-examination and even assuming that the learned A.P.P. thought it fit to prove an additional document or to establish an additional fact at the fag-end of the cross-examination, what should have been allowed was further examination-in-chief, allowing a chance to the defence to meet with this additional circumstance or additional document by addressing such cross-examination as the defence thought fit. I feel that in the circumstances stated above, it is difficult to accept the tall claim of P.W. 24, who certainly is a person who was elected by members of the Gram Panchayat of all the villages in Parner Block and who, therefore, certainly could not be considered to be a gullible villager who could go on signing blank documents one after another without making any inquiry as to the purpose for which his signatures on blank documents were being obtained. In fact, this tall claim has been exposed to a certain extent by an admission obtained by the defence in para 18 of his deposition, wherein he admitted to have signed Ex. 87 and Ex. 92 after reading what was written in those documents.
23. The substratum of the prosecution case against accused No. 1 Naik and accused No. 2 Walekar is that they failed to comply with the Rules relating to taking measurements of the work of Vasant Bhandaras at the 10 villages in question on the spot and checking of the wooden planks after they were supplied by accused No. 4 respectively. Apart from the truth or otherwise of the defence of accused No. 1 that he failed to perform his duty because of the directions given by accused No. 2, the fact remains that the main inquiry that has to be made for the purpose of ascertaining his guilt is as to whether his failure to perform his duty of taking measurements according to the Rules and the consequential writing of 'teak wood' in the measurement book and the consequential preparation of bills was an act which was intentional or could be an act which may not be intentional. Even so far as accused No. 2 is concerned, the primary question is not whether he failed to perform his duty according to the Rules by making sample checking at the timber depot on 28th March 1969 before the wooden planks were actually supplied by accused No. 4 on the various work sites, but the question is whether his failure to carry on 10 per cent sample checking after the wooden planks were supplied by accused No. 4 at the work sites was intentional or was not intentional. In the face of the positive finding that the prosecution has failed to prove that these two accused gained anything out of the transaction inquestion, the burden of proving that accused Nos. 1 and 2 acted intentionally in non-compliance with the Rules relating to measurements and sample checking must be discharged by the prosecution with clear unimpeachable and acceptable evidence and this is particularly so in view of the fact that the defence of accused Nos. 1 and 2 right from the beginning was that they never did anything intentionally in the matter of measurements or checking of the 10 works of Vasant Bhandaras in question. Since there is total absence of misrepresentation or inducement on the part of accused No. 4 so as to make the Zilla Parishad or the Panchayat Samiti, Parner, to pay an amount of about Rs. 27,000/-, if must be clearly established that accused No. 1 and/or accused No. 2 deceived the Zilla parishad or the Panchayat Samiti and dishonestly induced them to pay Rs. 27,000/- to accused No. 4, Deceit contemplates, express or implied, misrepresentation, which must necessarily be an intentional act. Dishonest inducement also contemplates an intentional act. The learned trial Judge rightly observed in paragraph 37 of the judgment that the main question in the present case was as to whether it was the negligent acts of accused Nos. 1 and 2 which led to the wrongful loss or whether it was the intentional acts of these two accused - it must be remembered that act includes an omission - which led to the ultimate wrongful loss caused to the Zilla Parishad or the Panchayat Samiti, Parner. After discussing the entire evidence in the case, the learned trial Judge felt that every man must be presumed to have intended the consequences of his act and in view of the undisputed fact that the loss caused to the Panchayat Samiti was the result of wrong statements contained in the measurement book (Ex. 108) and the consequential incorrect bills (Exs. 109 and 110), it was concluded that the failure on the part of accused No. 1 and accused No. 2 to follow the Rules of taking measurements and sample checking was intentional.
24. According to me, the circumstances established do not lead necessity to an inference that these acts were intentional. The reasons are :-
(1) The alleged acts relate to a solitary transaction and are not acts forming part of series of acts leading to an inference that the alleged acts are not on account of negligence but are intentional. From the acts and conduct of parties, an agreement of criminal conspiracy to cheat could certainly be inferred, but for that there must be a course of conduct and not a solitary instance suggesting existence of Criminal conspiracy. (See Nadir Ali v. State of U.P., : AIR1960All103 and G. V. Nair v. Govt. of India, 1963 Cri LJ 675
(2) The work was undertaken at the fag end of the financial year and it is common knowledge that those who want the work to be done before the end of the financial year have to see that grants are utilised before the 31st of March and for that purpose it becomes necessary to get the work done before that date.
(3) The prosecution has not been able to show that accused No. 1 and/or accused No. 2 stood any chance of getting a financial gain out of the transaction.
25. In a sense, the burden of proving the case placed on the shoulders of the prosecution is twotold. The prosecution has to prove every ingredient of the offence in question beyond a shadow of reasonable doubt. This burden includes the burden of proving the mental state of the accused wherever intention or knowledge forms one of the ingredients of the offence. The proposition laid down by Lord Sankey in Woolmington v. Director of Public Prosecutions. (1935) AC 462, that it is for the prosecution to prove that the act of the accused was intentional, holds good till this day. Lord Sankey observed :-
'If it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive so bare and meagre a case, but that does not mean that the onus is not still on the prosecution that English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt ...... If, at the end of and On the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.'
26. The rule that the prosecution must prove the accused's guilt beyond a reasonable doubt means that it is generally incumbent on the prosecution to negative any defence raised by the accused. Statutory exceptions and defence of insanity are the only exceptions to this rule, since, when such defences are raised, the burden is on the accused to prove his defence.
27. The Supreme Court found in the case of K. M. Nanavati v. State of Maharashtra, : AIR1962SC605 :-
'As in England so in India the prosecution must prove the guilt of the accused, i.e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt.'
This burden requires the prosecution to displace any of the suggested defences affecting the ingredients of the offence by adducing cogent evidence. If the defence relates to a statutory exception there is no doubt that the burden though lighter, is on the shoulders of the defence to establish the exception. However, if the defence relates to one of the ingredients of the offence and if, because of the said defence, existence of one of the ingredients of the offence becomes doubtful, the burden is still on the shoulders of the prosecution to prove that particular ingredient and it cannot lie in the mouth of the prosecution to say that it was for the defence to prove otherwise. Taking this aspect of burden of proof on the shoulders of the prosecution, the Supreme Court observed in K. M. Nanavati's case :-
'An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the I.P.C., the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that, the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful manner by lawful means with proper care and caution : the accused against whom a presumption is drawn under Section 105, Evidence Act that the shooting was not by accident in the circumstances mentioned in Section 80, I.P.C. may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of Section 80, I.P.C. but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of Section 300, I.P.C. or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of Section 80, I.P.C. the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused.'
28. In case of cheating, the prosecution has to prove that the accused deceived. The prosecution has also to prove that the accused fraudulently or dishonestly induced. Both these ingredients relate to the state of mind of the accused. Therefore, the prosecution has to prove that the accused acted intentionally and deliberately for that purpose. As in the present case, the defence, while admitting the default of not acting in the particular way and the irregularity of acting in the way in which the accused had acted, pleads that the act was never intended. It was at the most negligent and irregular. In the case of such a defence, it is not open to the prosecution to say that the defence should establish that the accused were negligent, because the general burden of proving that the act was intentional still continues on the shoulders of the prosecution and it is for the prosecution to prove that the act was not negligent or irregular but was deliberate and intentional.
29. Applying this principle to the facts established in the present case, I do not find that the prosecution has succeeded in establishing that the alleged acts of accused Nos. 1 and 2 leading to the ultimate to loss to the Zilla Parishad or the Panchayat Samiti, Parner, which is said to be a wrongful loss, were intentional. The result is that it is not established that accused No. 1 and/or accused No. 2 deliberately deceived or intentionally induced the Zilla Parishad or the Panchayat Samiti to part with certain amount in favour of accused No. 4.
30. It has already been found that accused No. 4 had every right under the law to propose as he did. It was not incumbent upon him to give a proposal for the supply of teak wood. Even assuming that the proposal given by him was for the supply of teak wood, if he supplied jungle wood or inferior wood, it was for the purchaser to reject the goods supplied. It can never be open to the purchaser to accept the goods, when, according to him, the seller has committed a breach of the contract and then ultimately say that the seller should have supplied goods according to the contract and since he has not done so, he has practised fraud. Whenever there are circumstances intervening, the seller of goods cannon be said to have induced the purchaser to accept the goods, unless he makes a representation that the quality of goods was not inferior but was as per the contract, as alleged by the purchaser. In the circumstances, apart from the question as to whether accused No. 4 was legally bound to supply teak wood planks or was not legally bound to supply teak wood planks, it is not possible to hold that he was guilty of cheating.
31. The learned trial Judge has not given any finding in respect of the last charge which alternatively charged all the accused of having committed offences punishable under Sections 420 and 477-A read with Section 109 or Section 34 I.P.C. In view of my finding that the prosecution has failed to establish criminal conspiracy punishable under Section 120-B I.P.C. and in view of my further finding that the prosecution has also failed to establish that the acts of irregular measurements and checking by accused Nos. 1 and 2 respectively were intentional amounting to deliberate deceit and dishonest inducement and in view of my finding that accused No. 4 did not in any way misrepresent, the three appellants (original accused Nos. 1, 2 and 4) are acquitted of the offence punishable under Section 120-B, I.P.C. as well as of the offences punishable under Section 420 read with Section 120-B and Section 477-A read with Section 120-B. I.P.C All the three appeals are allowed. The fine, if paid, shall be refunded. The bail bonds of the three appellants shall stand cancelled.
32. Appeals allowed.