1. These two applications by original accused Nos. 1 and 2 respectively are directed against the order passed on appeal by the Additional Sessions Judge, Sholapur, by which the learned Additional Sessions Judge confirmed the order of conviction and sentence passed against the first petitioner and also confirmed the order t of conviction but only reduced tne sentence of six months awarded to accused No. 2 by the trial Court to simple imprisonment till the rising of the Court.
2. Revision petitioner Chandrakant Jakkal, who will hereafter be referred to as 'accused No. 1', was in the employ of the Municipal Corporation of Sholapur as a Deputy Engineer and the revision petitioner Appasaheb Nanasaheb Babar who would be referred to as 'accused No. 2' in the companion petition was employed in the same Corporation as an Overseer.
3. It appears that accused No. 1 was working as a Deputy Engineer in the City Engineering Department of the Corporation upto Oct. 16, 1970 and thereafter he was transferred as a Deputy Engineer in the Public Health Department of the Corporation and was kept in charge of Degaon Sewage Treatment Plant at Sholapur.
4. Accused No. 1 was residing in House No. 70 situate in the Railway Lines. This building belonged to one Jaganlal Pardeshi and accused No. 1 had rented it. Accused No. 1 constructed a bungalow and for some time he shifted to that bungalow. All the same he retained with him possession of House No. 70 in the Railway Lines to which he reshifted in January 1971.
5. Accused No, 2 as an Overseer was in charge of Municipal stores and he was authorised to draw material required for the purpose of repairs or construction of Municipal works from these Stores by putting an indent.
6. The prosecution case was that at the instance of accused No. 1, accused No. 2 used materials such as cement, bricks, Shahabad tiles, sand etc. belonging to the Municipal Corporation and also labourers on the pay roll of the Corporation for carrying out repairs to the aforesaid premises at 70 Railway Lines, Sholapur, from Nov. 25, 1970 to Nov. 27, 1970.
7. On Nov. 27, 1970 the Mayor Mr. Bali came to know about this and, therefore, he in company of Municipal Commissioner, Mr. Mohite, paid a surprise visit to the aforesaid premises when they detected that the labourers employed by the Municipal Corporation and the material belonging to the Corporation were being utilised for carrying out repairs and other work on the premises in the occupation of accused No. 1. At the instance of the Mayor and the Commissioner, a complaint was immediately lodged with the police by Ravindra Ayachit, P. W. 1, who was then working as Assistant Assessor and Collector of Taxes and as a result of the investigation carried out, these two accused were jointly prosecuted, on a charge Under Section 409 against accused No. 2 and Under Section 409 read with Section 109 of the IPC against accused No. 1.
8. Although the accused pleaded not guilty to the charge, it was not disputed by them that certain repairs were as a matter of fact carried out in the premises at House No. 70 in the occupation of accused No. 1 and for that purpose labourers and materials of the Corporation were utilised.
9. The defence of accused No. 1 initially was that he was not in occupation of the premises at all but he had already vacated them and had surrendered them to the landlord Pardeshi, According to him, he was falsely implicated in this prosecution at the instance of Mayor Bali because the latter had a grudge against him as he had refused permission for the construction of a building of Bali in the Civil Lines.
10. In order, therefore, to show that accused No. 1 was in actual occupation of the premises, although he was not then residing there, the prosecution examined the landlord Pardeshi and from his evidence it was clearly established that accused No. 1 was in possession of those premises at the material time and, therefore, it appears that at the appellate stage it was not disputed that accused No. 1 was at the material time in the occupation of the premises.
11. Accused No. 2 denied that he supplied any material or labourers of the Municipal Corporation for these repairs.
12. In support of the charge, the prosecution examined Shewale, a clerk, and Jagannath Kadam, the Mistry, and some of the labourers who actually worked on these premises for carrying out these repairs. The prosecution also relied on the statement, Ext. 76, of accused No. 2 which was recorded before Mayor Bali and Commissioner Mohite immediately after they detected this offence. The prosecution also relied on a letter, Exh. 77, which accused No. 2 wrote to the Municipal Commissioner two days thereafter.
13. Of these, Jagannath Kadam did not support the prosecution and, therefore, he was declared hostile. The labourers who were examined stated that they worked in this house for carrying out repairs and did other work during the aforesaid period, although they were on the pay roll of the Municipal Corporation, but they stated that they were asked to work there by Mr. Shewale, who supervised the work. Shewale, however, fully supported the prosecution.
14. Relying on this evidence and the fact that repairs were actually carried out in the house in the occupation of accused No. 1, the trial court found that at the instance of accused No. 1, accused No. 2 who was entrusted with the property of the Municipal Corporation, committed criminal breach of trust in respect of that property by using the same for carrying out repairs to the private house in the occupation of accused No. 1. Consequently both the accused were convicted of the offences charged against them and each of them was sentenced by the trial Court to suffer R.I. for six months and to pay a fine of Rs. 500/- and in default of payment of fine to suffer R.I. for one month.
15. In appeal, as already stated above, the III Additional Sessions Judge, Sholapur, confirmed the order of conviction and sentence passed against accused No. 1 but while confirming the order of conviction passed against accused No. 2 he reduced the substantive sentence till the rising of the Court and retained the fine and the sentence in lieu of fine.
16. On behalf of accused No. 1, two contentions were raised. Firstly it was contended that Shewale's evidence on which the prosecution mainly relied does not establish that accused No. 2 in any way supplied material and labourers and that it was so done by accused No. 2 at the instance of accused No. 1. In this connection it was submitted that Shewale being in the position of an accomplice, his evidence without independent corroboration should not have been accepted by the Courts below. It was further submitted that the statement of accused No. 2 alleged to have been recorded before Commissioner Mohite could not furnish corroboration, because that statement being also a statement of an accomplice could not be sufficient to corroborate the statement of other accomplice. In other words, it was contended that one piece of weak evidence would not corroborate another piece of weak evidence.
17. Before proceeding to examine this contention however, it is necessary to refer in brief to the evidence of Shewale and other witnesses. Shewale in his evidence stated that on the afternoon of Nov. 25, 1970 Jagannath Kadam approached and told him that the house of accused No. 1 situate at Railway Lines was to be repaired and that Shewale should see accused No. 1 and receive detailed instructions about it. Accordingly, Shewale met accused No. 1 on the same day when accused No. 1 told him that the premises in his occupation at the house in Railway Lines were to be repaired and that Shewale should bring labourers on the next day for that purpose. Shewale then contacted accused No. 2 and Jagannath Kadam and informed them what accused No. 1 had said and thereupon accused No. 2 and Kadam told him that he should take some labourers working on the Corporation road at Limayewadi and at the Corporation building of School No. 12 and complete the repairs to the house of accused No. 1, He has further stated that he also sought instructions from Jagannath Kad am, the Mistry, as to from where the material required for repairs should be taken, Jagannath directed him to accused No. 2 who told him to take half bag of cement and one cart load of sand from the site of School No. 12 and start the work. On the next day he also at the instance of accused No. 2 drew three cement bags and sand from the material belonging to the Municipal Corporation. Cement bags were obtained from the stores on a requisition signed by accused No, 2 and sanction was obtained from some other place where municipal work was going on. Similarly, some bricks and Shahabad tiles were also procured from the Municipal property.
18. So far as Shewale's evidence is concerned, it was contended on behalf of the petitioners that Shewale's evidence shows that accused No. 2 had asked htm only to take labourers but he had not asked him to take the material from the Municipal stores. There is, however, no substance in this contention, because in fact, as the prosecution evidence shows, it was accused No; 2 who even signed the requisition forms in order to obtain the material such as cement from the Municipal stock. Not only this, but the evidence of Shewale shows that accused No. 2 had even directed him to obtain sand and other material from other work site where Municipal work was going on.
19. Shewale's evidence further shows that as per the message received through Dashrath, Shewale contacted accused No. 1 for detailed instructions as to the repairs to be carried out in these premises and after receiving instructions from accused No. 1, he carried out the repairs by obtaining labourers and material from Municipal stock as directed by accused No. 2.
20. It has also appeared in Shewale's evidence that while the work of repairs was in progress, accused No. 1 paid visits to the site and expressed his complete satisfaction about the manner in which the work was done and also issued further instructions about the repairs.
21. On behalf of the accused, some omissions from Shewale's statement recorded by Mohite were relied upon as contradictions; but they do not in fact amount to contradictions in the real sense of the term. Besides, it was perfectly open to the Courts below to take into consideration the omissions and then either accept or reject that evidence. Both the Courts below having accepted the evidence of Shewale in spite of such contradictions, it would not be open in revision to reappreciate the evidence.
22. The next question that arises is whether Shewale is an accomplice and if so, whether his evidence requires corroboration.
23. From the circumstances of this case it would be difficult to brand Shewale as an accomplice. He was a subordinate of both the accused. He was actually working directly under accused No. 2 and it was at the instance of these two accused that he procured the labour and material and carried out the repairs. It cannot, therefore, be said that he, in any way, was a party to the offence.
24. Even assuming for a moment that his evidence is in the nature of an accomplice's evidence, the question would be whether that evidence requires corroboration, and if so whether there is such corroboration from independent source. Section 133 of the Evidence Act says that an accomplice shall be a competent witness against an accused person and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114 of that Act says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
25. As has been pointed out by the Supreme Court in a recent decision in Dagdu v. State of Maharashtra, : 1977CriLJ1206 , reading the aforesaid two provisions together, the position which Emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. This rule of caution has almost hardened into a rule of law. However, what has hardened into a rule of law is that the conviction is not illegal which proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of the case make it safe I to dispense with it.
26. Turning to the facts of the present case, in my opinion, even if Shewale's evidence is treated as an accomplice's testimony, we can safely rely upon his evidence dispensing with any other independent corroboration. As I have already observed above, Shewale was a subordinate official working in the Corporation under the accused. He was merely a clerk. Naturally, therefore, he was expected to obey the orders of his superiors. Accused No. 2 was his immediate superior. He was working in the same Zone in which accused No, 2 was working as a Overseer at the material time. Accused No. 1 was the Deputy Engineer till shortly before this incident and although he was transferred to another Department in the Corporation, still he too was working in the same Corporation as an Officer. It was therefore, difficult for Shewale to disobey the orders of these officers.
27. Besides, nothing has been brought out in Shewale's evidence to show that he had any axe to grind against any of the two accused. It is difficult to imagine that a petty clerk like Shewale would on his own, without any instructions from the accused, carry out repairs with the help of Municipal labourers and material in the private premises in the occupation of accused No. 1. If indeed these accused had not given any instructions to him to carry out the repairs by obtaining such material and labourers, Shewale would not have carried out the repairs at all. Shewale has given evidence in a forthright and frank manner. It is for these reasons, in my view, Shewale's evidence could be accepted without corroboration and it has in fact been accepted by both the Courts below.
28. However, as I would indicate presently, there is ample corroboration available on record to the evidence of Shewale. In the first place, the undisputed fact that repairs were in fact carried out in the premises of accused No. 1 is itself a sort of corroboration to his evidence that he carried out the repairs. As I have already said, it is unimaginable that he could have carried out these repairs without the instructions from the accused, and secondly he could not have procured material and labour for those repairs unless accused No. 2 had given directions to him in that behalf. Indeed, the requisitions for drawing a part of the material from the Stores have been signed by accused No. 2. If accused No. 2 had not given any instructions, he could not have signed these requisitions or at least he would have detected immediately that the material which was requisitioned under his signature was directed to some other purpose.
29. Then there is evidence of the labourers who worked to carry out these repairs. Although they have not directly involved the accused, it is clear enough from their evidence that although they were on the Payroll of the Municipal Corporation, their services were utilised to carry out the repairs in this house. Now, if these labourers had been utilised for this work without the consent of accused No. 2, it is difficult to believe that accused No. 2 in his capacity as Overseer supervising the Municipal works did not detect that these labourers were absent on the work although they were marked as present. If he had not given any instructions, as stated by Shewale, to use these labourers for the repairs in the house of accused No. 1. accused No. 2 would have instantly made enquiries as to why these persons were marked present although they were actually absent, or he would have made enquiries as to where they had gone or were working.
30. Thus, there is ample corroboration coming from independent source to confirm the evidence of Shewale, It is not necessary that corroboration should be on each and every point. It is enough if corroboration is forthcoming on material particulars.
31. Besides, accused No. 2 gave a statement before the Mayor and the Commissioner on the 27th itself soon after this offence was detected by them. This statement shows that it was at his instance that the labour and the material of the Municipal Corporation was utilised for these repairs. Not only this, but two or three days thereafter he sent the typed letter to the Municipal Com--missioner in which also he admitted to have diverted the labour and the material of the Municipal Corporation for the repairs to the house of accused No. 1. Accused No. 2 in his statement recorded Under Section 313 of the Cr.PC 1973. has admitted this statement as well as this letter.
32. It was contended on behalf of accused No. 2 that although the attention of accused No, 2 was invited to this statement and the letter, he was not specifically asked as to what he had to say about them. It was submitted that if he had been asked specifically under what circumstances this statement was made and the letter was written by accused No. 2, accused No. 2 would have explained the circumstances in which he did so. But a glance at the statement of accused No. 2 and, in particular, on Question Nos. 36 and 40, would show that after drawing the attention of the accused to these two documents, he was in fact asked as to what he had to say, but the accused only stated 'This is true'. Beyond this, he did not say anything. He could very well have explained as to how he came to make these statements or what led him to make these statements but he has not done so.
33. Under Section 30 of the Evidence Act, a statement of an accused person amounting to a confession can be taken into consideration not only against the maker thereof but also against his co-accused, provided both of them are jointly tried in the same case for the same offence. This statement, therefore, can also be taken into consideration as against accused No. 1. It is true that, as observed by the Supreme Court in Haricharan Kurmi v. State of Bihar. : 1964CriLJ344 , such a confession can be used to receive assurance to the conclusion of guilt reached on other evidence in the case. That exactly is why after dealing with the evidence, in order to lend assurance that I have referred to these statements of accused No. 2 as against accused No. 1.
34. In view of this evidence, therefore, it is clearly established that accused No. 1 first of all gave instructions to accused No. 2 through Jagannath Mistry and Shewale to provide material and labour from Corporation for carrying out repairs in his house and on receiving those instructions, accused No. 2 as a matter of fact diverted this labour and material belonging to the Municipal Corporation for carrying out the repairs in the house of accused No. 1. They have, therefore, been rightly convicted respectively of the offences Under Section 409 read with S 109, and Under Section 400 of the IPC
35. On behalf of the accused, however, a point of law was raised. It was submitted that the allegations made against the accused amounted to an offence under Sec 5 (1) (c) of the Prevention of Corruption Act, 1947, because under that section, dishonest or fraudulent misappropriation or conversion for his own use by any public servant any property entrusted to him as a public servant or allowing any other person so to do amounts to an offence of criminal misconduct. It was contended that the prosecution ought to have proceeded against the accused under that section and, therefore, should have followed the procedure laid down under that Act. It was submitted that investigation of offences under Prevention of Corruption Act has been entrusted to a special branch and that before starting such investigation, sanction from the Magistrate was required to be taken and, therefore, although the allegations made against the accused also amounted to an offence Under Section 409 I.P.C., the prosecution ought to have proceeded against the accused under the Prevention of Corruption Act. It was further submitted that by in.-stituting prosecutions against the accused Under Section 409 I.P.C., the prosecution has clearly evaded the provisions of the Prevention of Corruption Act. It was further submitted that the Magistrate before whom the accused were challaned should not have usurped the jurisdiction of the Special Court established under the Prevention of Corruption Act for trial of such offences, but he should have directed the prosecution to launch a regular prosecution under the Prevention of Corruption Act before a Special Judge. It was pointed out that Under Section 6 of the Criminal Law Amendment Act ofi 1952, special Courts were established to try offences punishable inter alia Under Section 5 of the Prevention of Corruption Act, 1947, as also abetment of any such offences and Section 7(1) of that Act provided that notwithstanding anything contained in the Cr, P. C. or any other law, the offences specified in Sub-section (1) of Section 6 shall be tried by a Special Judge only.
36. In support of this argument, reliance was placed on a Division Bench decision of this Court in Phoenix Mills v. C. B. I. (1973) 75 Bom LR 87. I am. however, not impressed by this argument. In my view, where the offences alleged against the accused amount to offences under the I. P. C, as also under the Prevention of Corruption Act, it is open to the prosecution to prosecute the accused for the offences under the general law and it is not necessary that the prosecution must prosecute him for the offence under the Prevention of Corruption Act. Sub-section (4) of Section 5 of the Prevent tion of Corruption Act lends support to this view. That Sub-section provides that the provisions of Section 5 shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained therein shall exempt any public servant from any proceedings which might, apart from this section, be instituted against him.
37. This view is supported by two Full Bench rulings of this Court, viz. State v. Sahebrao and State v. Pandurang Baburao, : AIR1955Bom451 . In the first case, a talathi was prosecuted before a Magistrate for an offence Under Section 409 IPC for having misappropriated certain moneys which he had recovered as Tagai dues from the debtors on behalf of Government. At the trial, attention of the Magistrate was drawn to the provisions of Section 10 of the aforesaid Criminal Law Amendment Act, 1952. which provided for transfer of cases, pending before a Magistrate to the Special Judge for trial. The Magistrate, therefore, transferred this case to the Special Judge. The Special Judge, however, took a contrary view and made a reference to the High Court to quash the order of transfer. Similarly, in some other similar cases transferred to the Special Judge, a reference was made to the High Court. These references were heard by the Full Bench and it was held that it was open to the State to prosecute a public servant Under Section 409 of the IPC, I860, according to the procedure laid down in the Cr.PC 1898, notwithstanding the special provisions contained in the Prevention of Corruption Act. 1947, and the Criminal Law Amendment Act, 1952.
38. In the later Full Bench case also it was held that in the case of a criminal breach of trust by a public servant, it is open to the prosecution to launch prosecution either Under Section 409 of the I. P. C, 1860, or Under Section 5(2) of the Prevention of Corruption Act, 1947, even before the amendment of the latter Act in 1952. The Full Bench further ruled that if the prosecution is launched Under Section 409 I.P.C. and if the status of the accused is such that no sanction is required under the provisions of the Cr.PC 1898, the prosecution is good and the conviction is proper, in the absence of sanction, notwithstanding the fact that if the prosecution had been launched Under Section 5(2) of the Prevention of Corruption Act, a sanction would have been necessary. Again it was held that the Prevention of Corruption Act did not expressly or by implication repeal the provisions of the IPC and Section 409 I.P.C. is not therefore repealed by the provisions of the Prevention of Corruption Act. These authorities are, therefore, a complete answer to to the argument advanced on behalf of the applicants.
39. The Division Bench ruling in Phoenix Mills v. C. B. L (1973) 75 Bom LR 87, relied upon on behalf of the petitioners is distinguishable. In that case the goods imported on the licence granted were disposed of in contravention of the condition of licence and, therefore, an offence punishable under ,S. 5 of the Imports and Exports (Control) Act, 1947 was committed and such an offence could be taken cognizance of by Court only on a complaint filed by an authority designated Under Section 6. It appears that that authority had refused to file a complaint. Even so, the Central Bureau of Investigation prosecuted the accused only for entering into a conspiracy to commit that offence. It was on those facts that it was held by the Division Bench that the allegations contained in the charge-sheet having disclosed primarily and essentially an offence squarely falling within the ambit of Section 5 of the Imports and Exports (Control) Act, the mandatory provisions of Section 6 of the Act could not be permitted to be avoided or circumvented by seeking to prosecute the petitioners merely for the offence of conspiracy and that as there was no complaint in writing against the petitioners as required Under Section 6 of the Act, the Court was debarred from taking cognizance of the offence Under Section 5 of the Act.
40. In my view, therefore, the order of conviction passed against the revision applicants will have to be confirmed.
41. As for sentence, it was urged on behalf of accused No. 1 that accused No. 2, who was the principal offender, having been sentenced only to one day's simple imprisonment by the lower appellate Court, it would not be proper to send accused No, 1 to imprisonment for six months. It was submitted that this accused having undergone imprisonment for about one month and ten days after his conviction was confirmed by the lower appellate Court, the sentence should be reduced to the period already undergone. But in my view, this would not be a correct approach. It is true that accused No. 2 having himself diverted Municipal property for carrying out the repairs in the private house of accused No, 1, was charged with an offence of criminal misappropriation under 409 I.P.C. and accused No. 1 at whose instance it was done was charged Under Section 409 read with Section 109 I.P.C. But that does not make accused No. 2 the principal offender. On the facts of this case, it is clear that it was accused No. 1 who was the principal offender. It was he who gave instructions to accused No. 2 through his subordinates to carry out these repairs at the cost of the Municipal Corporation and accused No. 2 being an Overseer, who worked under accused No. 1, carried out these instructions. Accused No. 1 was a responsible officer occupying the position of a Deputy Engineer. He is, therefore, the main culprit. If he had not issued such instructions, accused No. 2 would not have, on his own, used labour and material belonging to the Municipal Corporation for the private purpose of accused No. 1. I, therefore, do not think that any leniency is called for,
42. The rule is, therefore, discharged confirming the order of conviction and sentence. Accused No. 1 to surrender to his bail.
43. At this stage, Mr. Patankar prays for leave to appeal to the Supreme Court on the same grounds which were pressed before this Court. But as I have found that there is no substance in these grounds, the application is rejected.