Prevention of Corruption Act, 1988 – ss.13(1)(d)(ii), 15 – Penal Code, 1860 – s.477A – Complaint made regarding malpractices in the construction of rooms and varandha in Primary Schools – As per the prosecution, the appellant manipulated the record and after the complaint was made, the amount was reduced by the appellant in the Measurement Book and also with regard to the construction work – Appellant convicted u/s.13(1)(d)(ii) r/w s.15 and u/s.477A, IPC – On appeal, held: For an offence punishable u/ss.13(1)(d)(ii) r/w s.15, it is necessary to establish that a public servant has attempted to obtain for himself or for any other person any valuable thing or pecuniary advantage – In the present case, no such material has come on record – Further, the vital aspects that the appellant did not have any role to play in either the sanctioning of the money or making of payment, have been totally ignored by both the Courts – The evidence that in the investigation, the IO had not found any criminal intent has also been ignored – Conviction u/s. 13(1)(d)(ii) r/w s.15 unsustainable – Further, even the conviction u/s.477A, IPC is not sustainable as no material has been placed on record to establish that the making of false entry or omission or alternation of such entries has been done willfully with an intent to defraud, as required for conviction u/s.477A, IPC – Order of conviction and sentence passed by Special Judge and confirmed by the High Court set aside – Appellant acquitted of all the charges.
Criminal Law – Concurrent findings of fact – Held: Cannot be interfered with unless shown to be perverse. Allowing the appeal, the Court
HELD: 1.1 For an offence punishable under Section 13(1)(d)(ii) read with Section 15 of the PC Act, it is necessary to establish that a public servant has attempted to obtain for himself or for any other person any valuable thing or pecuniary advantage. In the present case, no such material has come on record. On the contrary, the evidence of PW14, the Investigating Officer would clearly show that the payment of the construction material was directly made to the Gram Sewak by the Panchayat Samiti. It would further reveal that the bill of the material was also directly sent to Gram Sewak by the Panchayat Samiti. There was no verification done by the appellant. It is clearly admitted that the appellant was not aware of the amount paid to the Gram Sewak with respect to the construction material. It is further admitted that at the relevant time, there were around 100 to 125 panchayat works going on under the supervision of the present appellant. It is further admitted that there was no material placed on record to show that the corrections in Ex-article-2 from Ex-P-22 to Ex27 was made by the appellant after the complaint. PW14 further admits that the amount paid by the Panchayat Samiti was as per the amount corrected by the appellant. It is further admitted that there was no evidence to show that the accused Bhagwan Sahai and the appellant had made corrections together. He further admits that ShivKumar Sharma, that is the present appellant, had made a complaint to the District Magistrate about the irregularity in the construction work by Bhagwan Sahai, Gram Sewak. These vital aspects that the appellant did not have any role to play in either the sanctioning of the money or making of payment, have been totally ignored by both the Courts. The evidence that in the investigation, the Investigating Officer had not found any criminal intent has also been ignored. In that view of the matter, the conviction under Section 13(1)(d)(ii) read with Section 15 of the PC Act is totally unsustainable. [Paras 11-13][409-C-E; 409-G; 410-A-B]
1.2 For a conviction under Section 477A of the IPC, it is necessary for the prosecution to establish that the making of false entry or omission or alternation of such entries has been done willfully with an intent to defraud. No such material has been placed on record by the prosecution. On the contrary, the evidence of PW8 who was appointed as an Inquiry Officer, would show that the allegations made against the appellant were not sustainable. His deposition would clearly show that the measurements recorded by the appellant were found to be correct by the Inquiry Officer. He clearly admits that he did not find any irregularity in the work of village Mankot. He further admits that if any mistake was done in the total of Measurement Book at the time of preparing the bill, the mistake could be corrected by the accounts branch. He further admitted that in so far as Surjanpur is concerned, no person was appointed as a watchman or a supervisor. He admits that in the absence of a watchman, it is possible that the material lying at the site could be taken by anybody. He admits that even the patties were not found on the spot and has noted about the same in the report. He further admits that if the cost of patties of Rs. 6914/- were included in the valuation of Rs. 40,677/- then the valuation comes to Rs.47,181/-. Further, it could clearly be seen that the appellant had no role whatsoever in either approving the payment or making the payment. The evidence of PW8 would clearly show that at the most, the act of the appellant could be termed as irregular. However, there was nothing on record to show that such irregularities were committed willfully with an intent to defraud. In that view of the matter, even the conviction in so far as Section 477A of the IPC is concerned, is not sustainable in law. It is settled law that concurrent findings of fact cannot be interfered with unless shown to be perverse. In the present case, both the Trial Court and the High Court failed to take into consideration the relevant and vital admissions in the evidence of PW8. and PW 14. The said admissions were vital. Basing the order of conviction by ignoring the said vital admissions would bring the impugned judgments in the realm of perversity. The order of conviction and sentence as recorded by the Special Judge, Prevention of Corruption Act No.1, Jaipur and confirmed by the High Court are quashed and set aside. The appellant is acquitted of all the charges. The bail bonds stand discharged. [Paras 14-19, 25, 26][410-C-D; 411-C-H; 414-E-F]
Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141 : [2009] 3 SCR 1122; Ashoksinh Jayendrasinh v. State of Gujarat (2019) 6 SCC 535 : [2019]7 SCR 309 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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