Orissa High Court
Sridhar Swain vs State Of Odisha on 4 January, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No. 331 Of 1989
From the judgment and order dated 26.10.1989 passed by the
Special Judge (Vigilance), Sambalpur, in T.R. Case No. 12 of
1985.
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1. Sridhar Swain
2. Maheswar Behera ......... Appellants
-Versus-
State of Odisha ......... Respondent
For Appellants: - Mr. Jugal Kishore Panda
For State of Odisha (Vig.) - Mr. Sanjay Kumar Dash
(Senior Standing Counsel)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 04.01.2021
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S. K. SAHOO, J. This case has proceeded at a snail's pace since the
first information report was registered on 05.01.1983 and on
completion of investigation charge sheet was submitted on
31.12.1984. The learned trial Court framed the charges on
07.07.1986, delivered the impugned judgment on 26.10.1989
whereafter this criminal appeal was presented on 10.11.1989
and admitted on 17.11.1989 and the appellants were directed to
be released on bail. More than thirty one years after the
presentation of the appeal, the judgment is being delivered
today. When such type of year old criminal appeal comes for
adjudication, few questions strike to mind, "Why so much of
delay was caused to adjudicate the appeal? How it happened?
Who is responsible for the delay?" The answers are not very
difficult to find. The order sheet indicates that after the
admission of the appeal, it was listed before various Benches for
hearing but in spite of filing of paper books, the learned counsel
for the appellants showed no interest to argue the appeal, for
which the bail order granted to the appellants at the time of
admission of the appeal was recalled on 06.02.2008. However,
on the application filed by the appellants, they were directed to
be released on bail on surrender before the learned trial Court as
per order dated 12.05.2008. Again the same thing continued
and when the matter was taken up on 13.03.2013 for hearing,
none appeared for the appellants to argue the case for which the
bail order dated 12.05.2008 was recalled and the appellant no.2
Maheswar Behera was arrested on 10.04.2013 and he was
directed to be released on bail by this Court on 18.04.2013 and
on the same day, an order was passed to recall the order dated
13.03.2013 so far as appellant no.1 Sridhar Swain is concerned.
Another co-accused namely M.K. Raghaban who along with the
appellants faced trial and convicted by virtue of the impugned
judgment, preferred a separate appeal in Criminal Appeal No.332
of 1989 and was on bail, expired on 26.08.2000 for which the
said appeal stood abetted as per order dated 17.04.2013.
Finally, this appeal was listed before me on 06.08.2020 and
again on that day, none appeared for the appellants and on the
request of learned Senior Standing Counsel for the Vigilance
Department, the matter was adjourned awaiting the report of
Superintendent of Police, Vigilance, Sambalpur Division,
Sambalpur for giving intimation to the appellants for taking up
the matter for hearing. In spite of due intimation, Mr. Jugal
Kishore Panda, Advocate though filed vakalatnama for appellant
no.2 Maheswar Behera but since none appeared on behalf of the
appellant no.1 Sridhar Swain, the learned counsel Mr. Jugal
Kishore Panda was appointed as Amicus Curiae to place the case
of appellant no.1 also and time was granted to him to prepare
the case. The matter was ultimately taken up every week on
Thursday which was fixed for hearing of criminal appeal starting
from 05.11.2020 and after the hearing was concluded, the
judgment was reserved and the learned counsel for the
appellants took time to file written note of submissions, which he
filed on 24.11.2020.
It is said that slow and steady wins the race, but
when the world is changing very fast, if one does not take pace
then the fast would beat the slow. This case is a glaring example
to show as to how the true import of the legal maxim 'justice
delayed is justice denied' has yet not been appreciated properly.
Delayed justice is the deadliest form of denial of justice.
Discipline, commitment, thorough preparation, active
cooperation from the learned members of the Bar and their able
assistance can save a lot of valuable time of the Court and will
pave way for early disposal of the old criminal appeals which are
hanging over the head of judiciary like the sword of Damocles,
otherwise all the planning, mechanism and infrastructure
development would fail to yield the desired result in docket
management. All concerned must realise that 'Rome was not
built in a day' and for that continuous effort for doing something
good and important is necessary though it may take time.
2. The appellant no.1 Sridhar Swain along with co-
accused M.K. Raghaban faced trial in the Court of learned Special
Judge (Vigilance), Sambalpur in T.R. Case No. 12 of 1985 for
offences punishable under section 5(2) read with section 5(1)(d)
of the Prevention of Corruption Act, 1947 (hereafter '1947 Act')
read with section 34 of the Indian Penal Code and sections 465,
471 read with section 34 of the Indian Penal Code. The appellant
no.2 Maheswar Behera faced trial along with them but for the
offences punishable under section 5(2) read with section 5(1)(d)
of the 1947 Act read with section 109 of the Indian Penal Code
and sections 465, 471 read with section 109 of the Indian Penal
Code.
The learned trial Court vide impugned judgment and
order dated 26.10.1989, found the appellant no.1 along with co-
accused M.K. Raghaban guilty of the offences under section 5(2)
of the 1947 Act read with section 34 of the Indian Penal Code
and sections 465 and 471 read with section 34 of the Indian
Penal Code and the appellant no.2 was found guilty of the
offences under section 5(2) of the 1947 Act, sections 465 and
471 read with section 109 of the Indian Penal Code and all the
three were sentenced to undergo rigorous imprisonment for
three months on each count with a further direction that the
sentences are to run concurrently.
3. The prosecution case as per the F.I.R. (Ext.27), in
short, is that Subas Chandra Patnaik (P.W.7), Deputy
Superintendent of Police, Vigilance, Rourkela in course of enquiry
found that the appellant no.1 was working as Municipal Engineer
in N.A.C.(C.T.), Rourkela during the period from 30.07.1979 to
01.07.1982 and the co-accused M.K. Raghaban was working as
Sub-Assistant Engineer in N.A.C.(C.T.), Rourkela from
07.08.1980 till the lodging of the first information report and
they committed criminal misconduct in respect of Municipal fund
in execution of the work relating to (a) special repair to 40 feet
wide road in Madhusudan market; (b) special repair to Taxi and
Tempo stand at Madhusudan market area and (c) special repair
to private and transport bus stand at Madhusudan market area.
The appellant no.1 prepared the estimate for the above three
work and after getting necessary approval from the Executive
Officer and Chairman N.A.C.(C.T.), Rourkela, quotations were
invited as per tender notice vide no.5238 dated 31.12.1981. The
appellant no.2 along with others submitted tender for the above
three work in pursuance of such notice and the tender papers
were opened on 23.01.1982 in presence of the appellant no.1
and the Executive Officer Rajendranath Jena (P.W.5) who made
endorsement in the quotations of appellant no.2 to the effect
that there was only one cutting and no over writing and it
referred to other items of work and not to the cost of MAXphalt.
The appellant no.2 quoted the cost of MAXphalt at Rs.2,021/-
per metric ton. Entries were also made in the tender register
showing the rate of MAXphalt at the rate of Rs.2,021/- in respect
of quotation of the appellant no.2. Subsequently, the price of
MAXphalt was changed from Rs.2,021/- to Rs.2,621/- by
interpolation and overwriting both in figures and words in the
quotation of the appellant no.2 and also in the tender register
and as per the prosecution case, it was the co-accused M.K.
Raghaban who made such interpolation in respect of the price of
MAXphalt. It appears from the note sheet of the relevant files
relating to the above work that the figures mentioned therein
differs from the figures indicated on the body of comparative
statements of all the three work. The said co-accused though
correctly prepared the comparative statements at the first
instance showing the price of MAXphalt at the rate of Rs.2,021/-,
yet he subsequently changed those to a higher rate and
prepared comparative statement showing the price of MAXphalt
at Rs.2,621/- per metric ton and thereby helping the appellant
no.2 to take excess amount of Rs.600/- per metric ton of
MAXphalt after getting the approval of the Executive Officer and
Chairman through the appellant no.1 who did not point out the
discrepancies in the note sheet and comparative statement
regarding the price of MAXphalt when the matter was placed
before the Executive Officer and Chairman for approval. After
completion of the work, the co-accused M.K. Raghaban noted the
measurement of the work in the measurement book showing
price of MAXphalt at Rs.2,621/- per metric ton and got the bill
passed for payment as per voucher no.39 dated 23.04.1982
giving the benefit of Rs.1,289.60 to the appellant no.2. It is the
further prosecution case as per the F.I.R. that the appellant no.1
and the co-accused M.K. Raghaban quoted false measurement in
the measurement book in respect of grouting item of all the
three works and thereby gave pecuniary benefit to the appellant
no.2.
4. The Superintendent of Police, Vigilance, Northern
Division, Sambalpur on receipt of the first information report,
directed for registration of the case on 05.01.1983 and
accordingly, Sambalpur Vigilance P.S. Case No.01 of 1983 was
registered under section 5(2) read with section 5(1)(d) of 1947
Act and section 471 of the Indian Penal Code and the informant
(P.W.7) was directed to investigate the matter.
During course of investigation, P.W.7 examined the
witnesses and recorded their statements, seized the relevant
documents from the Executive Officer, N.A.C. (C.T.), Rourkela,
moved the Executive Engineer (Vigilance) for inspection of the
work in question, got the report of the Executive Engineer
(Vigilance) and on completion of investigation, he submitted the
consolidated report of investigation through his higher
authorities before the sanctioning authority, who after perusal of
the documents, accorded sanction for prosecution of the
appellant no.1 as well as the co-accused M.K. Raghaban. After
receiving the sanction orders, P.W.7 submitted charge sheet on
31.12.1984 against the appellant no.1 and co-accused M.K.
Raghaban for the offences under section 5(2) read with section
5(1)(d) of the 1947 Act and section 471 of the Indian Penal Code
and against the appellant no.2 for the offences 5(2) read with
section 5(1)(d) of the 1947 Act and section 471 read with section
109 of the Indian Penal Code.
5. The learned trial Court framed the charges as
aforesaid on 07.07.1986 and the appellants refuted the charges
and pleaded not guilty and claimed to be tried.
6. The defence plea of the appellant no.1 was that in
the tender paper, though the rate of MAXphalt per metric ton
was mentioned in figure as Rs.2021/- but in words, it was
mentioned as Rs.2621/- and as per P.W.D. Code, the rate
mentioned in words was valid and accordingly, he instructed the
co-accused M.K. Raghaban to prepare the comparative
statement.
The defence plea of the appellant no.2 was that he
had quoted the rate of MAXphalt at Rs.2621/- per metric ton in
his tender paper and that he was not aware of any interpolation
or correction in his tender papers submitted for the three work.
The appellants denied about the inflated measurement of the
work.
7. In order to prove its case, the prosecution examined
eight witnesses.
P.W.1 Chandramani Narayan Swamy was the Special
Secretary in G.A. Department, Government of Orissa who issued
the sanction order (Ext.1) dated 20.06.1984 for prosecution of
appellant no.1 Sridhar Swain as per the order of the Chief
Minister. She stated that the investigation report of the Vigilance
D.S.P. marked as Ext.2 along with legal opinion were placed
before the Chief Minister who after going through the same
passed the order marked as Ext.3/2 and on the basis of the said
order, she issued the sanction order (Ext.1).
P.W.2 Baman Charan Behera was the Accountant in
N.A.C. (C.T.) Office, Rourkela who stated that he checked the bill
(Ext.4) which relates to the work executed by the appellant no.2
Maheswar Behera with reference to the M.B. Book and the rate
as mentioned in the agreement. He further stated that after he
checked the bill, it was placed before the Executive Officer for
sanction and after necessary sanction, the bill amount of
Rs.37,560/- was paid to the appellant no.2.
P.W.3 B.K. Dash was the Executive Engineer
attached to Vigilance Directorate who received requisition from
the Deputy Superintendent of Police, Vigilance, Rourkela through
the Superintendent of Police, Vigilance, Sambalpur to offer
technical opinion regarding the extent of work in question
executed in this case and he stated to have inspected the work
in presence of the appellant no.1 Sridhar Swain and co-accused
M.K. Raghaban and prepared his report (Ext.12) and calculation
sheet (Ext.13). He observed that there was an inflation of
measurement to the extent of 698.56 sq. meter.
P.W.4 Shyam Sundar Beuria was working as Junior
Engineer attached to N.A.C. (C.T.), Rourkela, who proved the
estimates prepared by co-accused M.K. Raghaban relating to the
three work in question, floating of tenders for such work. He
proved three tender papers for the three work submitted by
appellant no.2 Maheswar Behera vide Exts.15, 16 and 17. He
stated that the rates quoted by the appellant no.2 was
Rs.2,021/- which was mentioned both in letters as well as in
words but the same has been changed to Rs.2,621/-. He further
stated that co-accused M.K. Raghaban took his pen which was
used by him in writing the tender register. He further stated that
the tender register and the tender papers were tampered with
subsequently.
P.W.5 Rajendranath Jena was working as Executive
Officer, N.A.C. (C.T.), Rourkela and also one of the members of
the tender committee. He stated that all the tenders for the
three work were opened in his presence and in all the tenders,
the appellant no.2 had quoted the price of MAXphalt at
Rs.2,021/- for each metric ton. He further stated that in the
tender papers submitted by the appellant no.2, there has been
subsequent interpolation to the rate of MAXphalt and Rs.2,021/-
has been changed to Rs.2,621/- in all the three work. He further
stated that co-accused M.K. Raghaban prepared the notes in the
corresponding file to be placed before the Chairman for approval
and appellant no.1 Sridhar Swain whose duty is to verify the
comparative statements and note of the co-accused before
placing the note for his approval did not point out the
discrepancy in the price of MAXphalt in the tender of the
appellant no.2 and accordingly, the tender committee on good
faith approved the note. He further stated that the interpolation
of the rate of MAXphalt and excess drawal by appellant no.2
were brought to his notice subsequently.
P.W.6 Bijay Kumar Sahu was working as U.D. Clerk
in the N.A.C. (C.T.), Rourkela and he was the custodian of the
tender register and tender files. He proved the tender call notice
issued by the appellant no.1 Sridhar Swain on behalf of the
Executive Officer in respect of all the three work in question. He
further stated that co-accused M.K. Raghaban prepared the
comparative statements of the tender papers and further stated
about the procedure relating to the approval of the tender and
issuance of work order in favour of the person whose tender is
accepted. He further stated about the payment of subsequent
bills of appellant no.2 with the cost of MAXphalt at the rate of
Rs.2,021/- as per the entry in the measurement book.
P.W.7 Subas Chandra Patnaik was the Deputy
Superintendent of Police (Vigilance), Rourkela who lodged the
F.I.R. (Ext.27) and took up investigation of the case and
ultimately submitted charge sheet against the accused persons.
P.W.8 Gourahari Pradhan was working as Head Clerk
in Jharsuguda Municipality who proved the original sanction
order (Ext.30) issued by Shri B.C. Pandey, Chairman of
Jharsuguda Municipality against co-accused M.K. Raghaban for
his prosecution.
The prosecution exhibited thirty three documents.
Ext.1 is the sanction order for the prosecution of appellant no.1,
Ext.2 is the investigation report of Vigilance D.S.P., Ext.3 is the
notes of scrutiny made by P.W.1, Ext.4 is the bill relating to
special repair of road, Ext.5 is the agreement, Ext.6 is the
measurement book, Ext.7 is the notes of P.W.2, Ext.8 is the
requisition issued by Vigilance D.S.P. for technical opinion, Ext.9
is the measurement book, Ext.10 is the file relating to Special
repair of 40 feet wide road, Ext.11 is the details of
measurement, Ext.12 is the report of P.W.3, Ext.13 is the
calculation sheet, Ext.14 is the tender register, Ext.15 is the
tender paper of the appellant no.2 relating to S.R. to 40 ft. road,
Ext.16 is the tender paper of the appellant no.2 relating to repair
of private bus stand, Ext.17 is the tender paper of the appellant
no.2 relating to repair of taxi and tempo stand, Exts.18, 20, 22
are the comparative statements of tender papers, Ext.19 is the
note sheet in the file Ext.10/1, Ext.21 is the note sheet in the file
Ext.10/2, Exts.23, 24 and 25 are the tender committee
resolutions, Exts.26 to 26/2 are the draft work order for
approval, Ext.27 is the F.I.R., Ext.28 is the seizure list, Ext.29 is
the note sheet of sanction order, Ext.30 is the sanction order,
Ext.31 is the letter of Director of Municipal Administration, Ext.32
is the letter of S.P., Vigilance and Ext.33 is the endorsement and
signature of Inspector of Vigilance.
The defence has examined one witness. D.W.1 Abhay
Kumar Nanda was the Junior Assistant in Rourkela N.A.C. who
proved the personal file of co-accused M.K. Raghaban. The
defence exhibited five documents. Ext.A is the C.L. application of
co-accused M.K. Raghaban, Ext.B is the telegram of co-accused
M.K. Raghaban for extension of leave, Ext.C is the order passed
by Additional Executive Officer sanctioning leave, Ext.D is the
note sheet of dealing Assistant regarding leave and Ext.E is the
joining report of co-accused M.K. Raghaban.
8. The learned trial Court after assessing the oral as
well as the documentary evidence has been pleased to hold that
the spot verification report of P.W.3 is unsatisfactory and
unreliable and that the prosecution has failed to prove the
charge of misconduct in respect of cash of Rs.9402.29 paisa by
way of inflated measurement. About the interpolations made in
tender papers submitted by the appellant no.2 vide Exts.15, 16
and 17 as well as tender register (Ext.14), the learned trial Court
held that the price of MAXphalt was subsequently changed to
Rs.2621/- although it was originally Rs.2021/- in the tender
paper of the appellant no.2. It was further held that the price of
MAXphalt was originally Rs.2021/- at the time of submission of
tender and it was forged and enhanced from Rs.2021/- to
Rs.2621/- in the tender paper as well as in the tender register
subsequently. The learned trial Court further held that nothing
has been brought out in the cross-examination of P.W.5 to
discredit his testimony regarding the interpolation, overwriting
and subsequent correction in the price of MAXphalt to Rs.2621/-
from its original price of Rs.2021/-. Similarly, the learned trial
Court found the evidence of P.W.6 has not been discredited in
the cross-examination. It was further held that there was
commission of forgery by way of overwriting, cutting and
interpolation in the price of MAXphalt in the tender paper and
tender register increasing the original amount of Rs.2021/- to
Rs.2621/- per metric ton subsequently even though there is no
evidence as to who committed the forgery but fact remains that
the appellant no.2 derived pecuniary benefits due to commission
of forgery. The learned trial Court held that the defence plea
taken by the appellant no.2 was false for which adverse
inference is to be drawn against him. The appellant no.1 and co-
accused M.K. Raghaban knowingly used the forged documents as
genuine regarding the price of MAXphalt and helped the
appellant no.2 for which he derived pecuniary advantage out of it
though temporarily. The learned trial Court also did not accept
the plea taken by the appellant no.1 and co-accused M.K.
Raghaban and further held that the sanction for prosecution of
the appellant no.2 is not imperative even though he is a public
servant as per the provisions of Orissa Municipal Act. The learned
trial Court ultimately came to the conclusion that the appellant
no.1 and the co-accused M.K. Raghaban being public servants
committed criminal misconduct and by corrupt and illegal means,
they obtained pecuniary advantage for the appellant no.2 by
enhancing the price of MAXhalt from Rs.2,021/- to Rs.2,621/- by
way of overwriting and interpolation in the tender papers and
tender register and used the same as genuine knowing those to
be forged documents with the help of appellant no.2 in
furtherance of their common intention and accordingly convicted
the appellants as well as the co-accused M.K. Raghaban as
already indicated.
9. Mr. Jugal Kishore Panda, learned counsel for the
appellant no.2 and engaged as Amicus Curiae for the appellant
no.1 contended that the learned trial Court has not appreciated
the evidence on record in its proper perspective and the findings
are mainly based on surmises. He argued that the appellant no.2
is a public servant as per the provisions of Orissa Municipal Act,
1950 but no sanction has been obtained for prosecuting him
which is illegal. It is further argued that there is no clinching
evidence adduced from the side of the prosecution as to who
made the endorsement or correction in the tender papers or
tender register and the signatures appearing thereon were also
not sent to the handwriting expert for opinion to prove the
interpolation in the tender papers and tender register. It is
further argued that in absence of any evidence as to who forged
the documents or that the appellants used the forged document
as genuine and more particularly when the files were not in the
custody of the appellants, the conviction of the appellants under
sections 465 and 471 of the Indian Penal Code are not
sustainable in the eye of law. While concluding his argument, Mr.
Panda submitted that both the appellants are now more than
seventy five years of age and about thirty seven years have
passed since the date of registration of the case and the
appellants have suffered sufficient mental agony and depression
and at this stage, it would not be proper to send them to judicial
custody again.
Mr. Sanjay Kumar Das, learned Senior Standing
Counsel for the Vigilance Department on the other hand
supported the impugned judgment and contended that in view of
the oral and documentary evidence available on record, it cannot
be said that any illegality has been committed by the learned
trial Court in convicting the appellants for the offences charged
and therefore, the appeal should be dismissed.
10. Now, let me deal with the first point raised by the
learned counsel for the appellants regarding absence of sanction
for prosecuting the appellant no.2 Maheswar Behera.
Section 378 of the Orissa Municipal Act, 1950
(hereafter '1950 Act') states, inter alia, that any person with
whom the Councillor or its Executive Officer, has entered into a
contract on behalf of the council in the performance of their duty
or of anything which they are empowered or required to do by
virtue or in consequence of the 1950 Act, or of any bye-law, rule,
regulation or order made under it, shall be deemed to be public
servants within the meaning of section 21 of the Indian Penal
Code. From a plain reading of the aforesaid provision, it is
evident that by the aforesaid section, the legislature has created
a fiction that a contractor with whom the Councillor or its
Executive Officer, has entered into a contract on behalf of the
council, shall be deemed to be a 'public servant' within the
meaning of section 21 of the Indian Penal Code. It is well settled
that the legislature is competent to create a legal fiction. A
deeming provision is enacted for the purpose of assuming the
existence of a fact which does not really exist. When the
legislature creates a legal fiction, the Court has to ascertain for
what purpose the fiction is created and after ascertaining this, to
assume all those facts and consequences which are incidental or
inevitable corollaries for giving effect to the fiction. Thus, the
legislature, while enacting section 378 has created a legal fiction
for the purpose of assuming that the contractor, otherwise, may
not be public servant within the meaning of section 21 of the
Indian Penal Code but shall be assumed to be so in view of the
legal fiction so created. However, section 376 of the 1950 Act
states that when the Chairman, Vice-Chairman or any councillor
of a municipal council or any officer of Government whose
service are lent to the council is accused of any offence alleged
to have been committed by him while acting or purporting to act
in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction of
the State Government. Section 376 of the 1950 Act does not
include a contractor. Therefore, a conjoint reading of section 378
and section 376 of the 1950 Act shows that if anyone commits
an offence voluntarily against a contractor to deter him from
discharging his lawful duty which was entrusted to him by virtue
of a contract executed under the 1950 Act, shall be prosecuted
as if he has committed an offence against a public servant.
However, if a contractor is alleged to have committed any
offence while acting or purporting to act in the discharge of his
duty entrusted to him by virtue of a contract executed the under
the 1950 Act, he can be prosecuted without any sanction of any
authority. The purpose of obtaining sanction is to protect the
public servant from harassment by frivolous or vexatious
prosecution and not to shield the corrupt. Therefore, no sanction
is necessary from any authority for prosecuting a contractor with
whom the Councillor or its Executive Officer has entered into a
contract on behalf of the council. In other words, a Court can
take cognizance of offences and proceed against a contractor
without any sanction order, if he is accused of any offence
alleged to have been committed by him in the performance of his
duty which was entrusted to him by virtue of a contract. Thus, I
am of the humble view that though a contractor shall be deemed
to be a public servant within the meaning of section 21 of the
Indian Penal Code by virtue of section 378 of the 1950 Act but
no sanction is necessary for his prosecution in view of section
376 of the 1950 Act and as such absence of sanction for
prosecuting the appellant no.2 Maheswar Behera is not illegal.
The learned counsel for the appellants has not
advanced any argument regarding any illegality in the sanction
order (Ext.1) issued by P.W.1 for prosecution of the appellant
no.1.
11. The defence plea of the appellant no.2 that he had
quoted the rate of MAXphalt at Rs.2,621/- per each metric ton in
his tender papers cannot be accepted inasmuch as had he
quoted such price, he would not have been declared as the
lowest bidder to get the work orders rather one M.C. Agarwal
who had quoted the rate of MAXphalt at Rs.2,400/- per each
metric ton would have been the successful bidder. P.W.5, the
Executive Officer stated that he himself and the appellant no.1
were the members of tender committee and all the tenders of
the three projects were opened in their presence and in all the
tenders, the appellant no.2 had quoted the price of MAXphalt at
Rs.2,021/- per each metric ton. Nothing has been brought out in
the cross-examination to disbelieve the evidence of P.W.5 in that
respect. Therefore, the defence plea taken by the appellant no.2
regarding his quoted rate of MAXphalt to be Rs.2,621/- per each
metric ton cannot be accepted.
The learned trial Court held that an adverse inference
is to be drawn against the appellant no.2 for deliberately taking
a false plea. Law is well settled that the prosecution must stand
or fall on its own legs and it cannot derive any strength from the
weakness of the defence. It is not the law that where there is
any infirmity or lacuna in the prosecution case, the same could
be cured or supplied by a false defence or a plea which is not
accepted by a Court. Therefore, even though the appellant no.2
has taken a false plea regarding quotation of rate of MAXphalt in
his tender papers but all the same, it is to be seen how far the
prosecution has established the charges against the appellants.
12. Now, let me discuss about the interpolation, cutting
and overwriting in the price of MAXphalt in the tender papers of
the appellant no.2 and also in the tender register.
P.W.5, the Executive Officer has stated that in all the
tenders, the appellant no.2 had quoted the price of MAXphalt at
Rs.2021/- for each metric ton. About the tender paper (Ext.15)
of the appellant no.2 relating to special repair to 40 feet wide
road in Madhusudan market, he stated that he himself and the
appellant no.1 made endorsement (Ext.15/1) that there was only
one cutting but no overwriting and the cutting (Ext.15/2) was
initialed by the appellants. He further stated that the
interpolation, cutting and overwriting in the price of MAXphalt in
Ext.15 were made long after opening of the tender which were
not in existence at the time of opening of the tender. The
quotation price of Rs.2,021/- in the tender paper in item no.7 in
Ext.15 was subsequently changed to Rs.2,621/- and the cutting
and interpolation in the changed price in Ext.15 were not
initialed either by him or by the appellant no.1 and those were
made in different ink from the other writings of Ext.15. He then
stated about the similar interpolation made in the tender register
(Ext.14) maintained by the Sub-Asst. Engineer Behuria in the
price of MAXphalt in the special repair to 40 feet wide road. He
further stated that a comparative statement (Ext.18) was
prepared in the hands of co-accused M.K. Raghaban relating to
this work in which he had recorded the tender amount of the
appellant no.2 to be Rs.40,808.35 paisa which was 11.33%
below the scheduled rate though in the note for this work vide
Ext.10/3, he mentioned the tender amount of the appellant no.2
was Rs.35,204.35 paisa which was 23.51% below the scheduled
rate. He further stated that Ext.18 was prepared after the
interpolation in the tender paper (Ext.15) and tender register
(Ext.14).
About the tender paper (Ext.16) of the appellant no.2
relating to special repair of private and transport bus stand in
Madhusudan Market, P.W.15 stated that there was only one
cutting and no overwriting which was endorsed by him and the
appellant no.1 as per Ext.16/1. He further stated that the
appellants have initialed the cutting as per Ext.16/2 and the
MAXphalt price which was quoted @ Rs.2,021/- per metric ton
was subsequently changed by way of interpolation and
overwriting in a different ink to Rs.2,621/- which was not
initialed either by him or by the appellant no.1 or by the
appellant no.2. In the tender register (Ext.14), the price of
MAXphalt so far as this work is concerned was converted by way
of interpolation from Rs.2,021/- to Rx.2,621/-. He further stated
that in the comparative statement (Ext.22), the co-accused M.K.
Raghaban recorded the tender amount of the appellant no.2 to
be Rs.33,338.77 paisa which was 11.59% below the scheduled
rate though in the note (Ext.21) prepared by the said co-accused
in respect of that work, the tender amount of the appellant no.2
was mentioned as Rs.29,859.65 paisa and in that note, 19.92%
has been scored through and in its place, 10.59% has been
noted.
About the tender paper (Ext.17) which relates to
special repair of taxi and tempo stand of Madhusudan market,
P.W.5 stated that the price of MAXphalt per metric ton was
quoted at Rs.2,021/- but subsequently it was converted by way
of interpolation to Rs.2,621/- and though the co-accused M.K.
Raghaban placed the note (Ext.19) in respect of this work that
the tender amount of the appellant no.2 was Rs.26,087.10 paisa
which was 19.44% below the scheduled rate but in the
comparative statement (Ext.20), it was mentioned by him to be
Rs.30,047.10 paisa which was 9.87% below the scheduled rate
and the increase in the tender amount was due to subsequent
interpolation in the quoted price of MAXphalt in the tender paper
(Ext.17) and tender register (Ext.14).
P.W.5 further stated that before placing the note
before him for his approval, it was the duty of the appellant no.1
as Municipal Engineer to verify the comparative statement and
note prepared by the co-accused M.K. Raghaban and then to
place the same for obtaining approval of the Chairman. However,
the appellant no.1 did not point out the discrepancies in the price
of MAXphalt in the tender of the appellant no.2. He further
stated that believing in good faith, the note of the appellant no.1
about the tender work in Exts.15, 16 and 17 was approved as
per resolution in the committee vide Exts.23, 24 and 25
respectively. He further stated that subsequently it came to his
notice regarding interpolation and excess drawal by appellant
no.2 so far as the price of MAXphalt @ Rs.2,621/- per metric ton
instead of Rs.2,021/- per metric ton.
In the cross-examination, P.W.5 has stated that the
tender committee consisted of the Chairman, he himself and the
appellant no.1. He further stated that the tender of the appellant
no.2 in respect of all the three items of work were accepted
which was also communicated to the appellant no.2. He further
stated that the dealing assistant Bijay Kumar Sahu (P.W.6) was
the custodian of the files relating to all the three work entrusted
to the appellant no.2 and he placed the draft before the
appellant no.1 to approve the same and then it was placed
before him (P.W.5) for approval. He further stated that there
was no discussion between him, the Chairman, the appellant
no.1 as Municipal Engineer and the dealing assistant before
acceptance of the tender paper. The members of the tender
committee were to scrutinize the relevant documents before
accepting the tender. He further stated that all the three tenders
submitted by the appellant no.2 were accepted as per the
decisions (Exts.23, 24 and 25) taken by the members of the
committee consisting of the appellant no.1 as Municipal
Engineer, he himself as Executive Officer and the Chairman on
20.02.1982.
P.W.6 Bijay Kumar Sahu who was the U.D. Clerk in
the NAC (C.T.), Rourkela also stated about the interpolation in
the tender papers of the appellant no.2 and tender register and
that he gave the notes that the overwriting were made by co-
accused M.K. Raghaban in the tender papers and tender register
relating to the appellant no.2. He further stated though he was
the custodian of the tender register and tender files but co-
accused M.K. Raghaban prepared comparative statements vide
Exts.18, 20 and 22. He further stated that the files of tender
papers used to be taken by co-accused M.K. Raghaban, the
appellant no.1, P.W.5 and also by the Chairman whenever those
were required. In the cross-examination, P.W.6 however stated
that the manipulations were not in existence on and prior to
26.02.1982 and the interpolations were not made in his
presence. He further stated that the manipulations were made
during his leave period from 01.03.1982 to 08.03.1982 and that
he entertained doubt and concluded that the manipulations were
made by co-accused M.K. Raghaban and accordingly, he made
the endorsement in the note sheet vide Ext.21/3 and 19/3. He
further stated the work orders were issued to the appellant no.2
on 05.03.1982 under the signature of the Executive Officer
(P.W.5).
The conjoint reading of the evidence of P.W.5 and
P.W.6 indicate that the appellant no.2 quoted the price of
MAXphalt at Rs.2,021/- per metric ton for all the three work and
he became the lowest bidder and got the work orders in his
favour. It also appears that not only in the tender register but
also in the tender papers of the appellant no.2, the rate of
MAXphalt was interpolated and Rs.2,021/- was made Rs.2,621/-
and in the running bill, the cost of MAXphalt was shown to be
Rs.2,621/- per metric ton and in that process, excess payment
was made to appellant no.2. The evidence of P.W.6 further
indicates that he doubted that the interpolations were made by
co-accused M.K. Raghaban. According to P.W.5, it was the duty
of the appellant no.1 to verify the comparative statements and
the notes prepared by the co-accused M.K. Raghaban but he did
not point out the discrepancies in the price of MAXphalt in the
tender work of appellant no.2 at the time of placing the notes
before him. The note of the appellant no.1 for each item of work
is there below the note of co-accused M.K. Raghaban and it
seems from the note of the appellant no.1 that on good faith, he
has relied upon the note of the co-accused without verification of
the comparative statement and passed the same for approval by
Chairman like P.W.5 who on good faith passed the note of the
appellant no.1. In my humble view, it may be a case of
dereliction of duty on the part of the appellant no.1 but that
would not ipso facto attract the ingredients of the offences
against him.
On perusal of the relevant tender papers of the
appellant no.2 and the tender register, it is apparent that there
has been interpolations, cutting and overwriting in different ink
and the original price of MAXphalt in the tender papers and
tender register was increased from Rs.2,021/- to Rs.2,621/- per
metric ton subsequently. Though the evidence of P.W.6 is that
he entertained doubt that the manipulations were made by co-
accused M.K. Raghaban and accordingly, he made the
endorsement in the note sheet but law is well settled that
supposition, surmise, speculation and subjective beliefs are no
substitute for fact findings based on evidence. In absence of any
clinching evidence as to who made the cuttings, overwriting and
interpolations in the relevant documents and when and
particularly when the files containing tender papers and also the
tender register were being handled by different persons as
stated by P.W.6, the learned trial Court is quite justified in its
observation that there is no specific evidence as to who
committed the forgery.
The learned trial Court held that the appellant no.1
as well as co-accused M.K. Raghaban was the technical persons
and dealing with the matter and instead of detecting the forgery,
they acted on the basis of such forged documents and did not
point out the same to the authority and in that process, the
appellant no.2 derived pecuniary benefits. Even though it is
evident that interpolation, overwriting and cutting in the figures
and words of the price of MAXphalt were made in the tender
papers at a subsequent stage which were not in existence at the
time of its opening and so also in the tender register but there is
no evidence that the appellants had any preconcert of mind with
the co-accused M.K. Raghaban or they were hand in gloves or in
furtherance of their common intention, forgery was committed in
the tender papers of the appellant no.2 and also in the tender
register. Though there is material that the appellant no.2 derived
temporary pecuniary benefits by getting excess payment than
which was legally admissible to him in the first running bill but
the same was subsequently deducted from his subsequent
running bills as stated by P.W.6.
On the basis of the oral and documentary evidence
adduced by the prosecution, even though it is held that false
plea has been taken by the appellants but it cannot be said that
there are enough materials to hold that the appellant no.1
abused his position as a public servant and obtained temporary
pecuniary benefits in favour of the appellant no.2 particularly
when there is no evidence as to who committed forgery of
documents and when and there is also no evidence that the
appellant no.1 has got any role in the interpolation in the tender
papers of the appellant no.2 and the tender register maintained
in the office of N.A.C., Civil Township, Rourkela and there is also
lack of clinching evidence against him that he had knowledge or
reason to believe those documents to be forged and in spite of
that he used the forged documents as genuine. Therefore, the
conviction of the appellant no.1 Sridhar Swain under section 5(2)
of the 1947 Act read with section 34 of the Indian Penal Code
and sections 465 and 471 read with section 34 of the Indian
Penal Code is not sustainable in the eye of law.
13. Charges were framed against the appellant no.2
Maheswar Behera that he abetted the commission of the
offences by the appellant no.1 as well as co-accused M.K.
Raghaban. Section 107 of the Indian Penal Code defines
abetment of a thing to mean that a person abets the doing of a
thing if he firstly, instigates any person to do that thing; or
secondly, engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or illegal
omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or thirdly, intentionally aids, by
any act or illegal omission, the doing of that thing. So far as the
first two clauses are concerned, it is not necessary that the
offence instigated should have been committed. Under the third
clause, when a person abets by aiding, the act so aided should
have been committed in order to make such aiding an offence.
In other words, unlike the first two clauses, the third clause
applies to a case where the offence is committed. Therefore,
abetment can be by instigation, conspiracy or intentional aid. In
order to decide whether a person has abetted by instigation the
commission of an offence or not, the act of abetment has to be
judged in the conspectus of the entire evidence in the case. The
act of abetment attributed to an accused is not to be viewed or
tested in isolation.
On a careful analysis of the evidence on record, I find
no evidence of abetment of commission of offence against the
appellant no.2. After he submitted his tender papers and got the
work orders, till he received the payment for the work executed,
there is no evidence that he got access to any forged documents.
Even if it is held that he got the temporary pecuniary benefits,
but the said amount was subsequently deducted from his
subsequent running bills. Taking of a false plea regarding
quotation of rate of MAXphalt in his tender papers, by itself
would not be sufficient to hold that he abetted commission of
any offence. Therefore, the conviction of the appellant no.2
Maheswar Behera for the offences under section 5(2) of the 1947
Act, sections 465 and 471 read with section 109 of the Indian
Penal Code is not sustainable in the eye of law and is hereby set
aside.
14. In the result, the criminal appeal is allowed. The
impugned judgment and order of conviction of the appellants
passed by the learned trial Court and the sentence passed
thereunder is hereby set aside. The appellants are acquitted of
all the charges. The appellants are on bail by virtue of the order
of this Court. They are discharged from liability of their bail
bonds. The personal bonds and the surety bonds stand
cancelled.
Lower Court records with a copy of this judgment be
sent down to the learned trial Court forthwith for information.
Before parting with the case, I would like to put on
record my appreciation to Mr. Jugal Kishore Panda, engaged as
learned Amicus Curiae for the appellant no.1 for rendering his
valuable help and assistance in deciding this year old criminal
appeal. The hearing fees is assessed to Rs.5,000/- (rupees five
thousand) in toto which would be paid to the learned Amicus
Curiae immediately.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 4th January 2021/Pravakar/Sisir/RKM
