State of T.N. Vs. T. Thulasingam [1994] INSC 324 (13 May 1994)

Yogeshwar Dayal (J) Yogeshwar Dayal (J) Kuldip Singh (J)

CITATION: 1995 AIR 1314 JT 1994 (4) 73 1994 SCALE (2)1065

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.- These appeals arise from the judgment of the Madras High Court dated 9-8-1990 passed in Criminal Appeal Nos. 840 to 855 of 1978, 867 of 1978, 881 to 885 of 1978, 887 of 1978, 889 to 913 of 1978, 916 of 1978, 923 to 937 of 1978, 943 and 944 of 1978 and CA No. 156 of 1981 whereby the accused/appellants before the High Court were acquitted by the High Court.

2. All the accused, except accused 105 and 106 were either employed or associated with the Corporation of Madras;

accused 2, 3, 4 and 5 were working as EngineeRsin Electrical Department besides the 1st accused, who died during the trial of the case; accused 6, 7, 8, 9, 10 and 12 were Electrical Supervisors; accused 11, 13, 14 and 15 were employed as Assistant Electrical Supervisors; accused 16 and 17 were Charge Engineers; accused 18 and 19 were Lighting Inspectors, accused 20, 23 and 24 were Temporary Timekeepers; accused 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 37 were Timekeepers; accused 34 and 35 were A.4 clerks; accused 36 and 37 were doing the work of A.4 clerks; accused 38, 39, 40 and 41 were clerks; accused 42 and 43 were Tax Collectors; accused 44 and 49 were Accountants;

accused 45 was the Assistant Accounts Officer; accused 46 was the Section Manager; accused 47 was also the Section Manager, accused 48 was clerk in the C.A.D.; accused 50, 51, 52, 53 and 54 were employed as Assistant CashieRsin the Cash Department; accused 55, 56, 57, 58, 59, 60, 61, 62, 63, 64 and 65 were employed as clerk in Cash Department, accused 66 was employed as clerk in Cash Department; accused 67, 68 and 69 were employed as Gollah in Cash Department; accused 70 was employed in the Revenue Department as Assistant Revenue Officer; accused 71 and 72 were clerks in Voucher Section of C.A.D.; accused 73 was the L.F. Auditor and accused 74 was the Audit Assistant; accused 75 to accused 104 were Councillors; accused 75 was the Chairman of the Taxation and Finance Committee; accused 76, 77, 78, 79, 80, 81, 82 and 83 were membeRsof the Taxation and Finance Committee; accused 84 was the Chairman of the Accounts Committee; accused 85 and 86 were membeRsof the Accounts Committee; accused 87, 88, 89, 90 and 91 were the membeRsof the Works Committee; accused 92 was the Chairman of the Health Committee; accused 93 and 94 were the membeRsof the Health Committee; accused 100, 101, 102, 103 and 104 were Councillors; accused 105 was the Bill Collector of Mylapore Hindu Permanent Nidhi Limited and accused 106 was a former labourer of the Corporation of Madras.

3. The case of the prosecution is that the appellants before the High Court along with the accused, who were acquitted by the Special Judge and the approveRsPWs 1 to 6 and 60 and three otheRs(who died during trial) were the membeRsof the conspiracy between April 1969 and November 1973 and they caused wrongful loss to the Corporation of Madras by preparation of fully bogus muster-rolls and partially bogus muster-rolls in pursuance of the said conspiracy 408 and had the muster-rolls passed for payment, obtained money from the treasury, misappropriated such amounts and did several acts of omission and commission in order to achieve the objects of conspiracy.

4. To unfold the prosecution case, the prosecution has examined 360 witnesses including 7 approvers. PWs 1 and 2 were A.4 clerks in charge of issuing blank muster-roll forms to the outdoor officials for the preparation of muster- rolls. Their predecessoRswere in A.4 seats, A-34 and A-35.

A-36 and A-37 were assistants and were also doing the work of A.4 clerk. The blank muster-rolls issued by the A.4 clerk to the outdoor officials have to be filled up by the outdoor officials and have to be placed to the C.A.D. for being approved by the Engineer. The outdoor officials who process the muster-rolls, are the Supervisors, Assistant Supervisors, and Charge EngineeRsbesides others, PW 5 (approver), A-6, 7, 8, 9, 10 and 23 were Electrical Supervisors; A-11, 13, 14 and 15 were Assistant Electrical SupervisoRsand PW 6 (approver), A-16 and A- 17 were Charge Engineers.

5. PW 3 was an Accountant in C.A.D. to which department the filled up or prepared muster-rolls will be sent after scrutiny by A.4 clerk and after being approved by the Electrical Engineer, for further processing. The muster- rolls are processed for order and placed before the officeRsfor being passed by the Assistant Accounts Officer or Chief Accounts Officer. A-44 to 49 were from C.A.D. PW 3 has been taken as an approver to speak of the involvement of the staff of the Central Accounts Department besides other facts.

6. PW 4 and PW 60 were from the Cash Department. A-50 to 55, A-68 to 69 were from the Cash Department. PWs 4 and 60 have been taken as approveRsto speak to the involvement of the membeRsof the staff of the Cash Department besides other facts. PWs 7 and 8 speak to the payments made to several persons out of the amounts fraudulently obtained by the fabricated muster-rolls.

7. PWs 9 and 10 were Assistant Engineers. PWs 52, 53, 59, 244 to 257, 259 to 269, 271, 275 and 284 to 293 have been examined to prove that there was free flow of money from A.4 clerk and that they were amongst the beneficiaries. PWs 63 to 235, 282, 295, 297, 334, 335 and 341 to 345 were examined to prove that some of the accused acquired properties during the relevant time and that they must have received share in the amounts obtained by the fraudulent muster-rolls.

8. PWs 299 to 313 and 315 speak about the forged fault notes sent to the Charge Engineer. PWs 314, 315, 316 to 328, 337 and 347 are Police Officers. PWs 329 and 330 are experts in fingerprint and handwriting respectively. PW 339 was an Assistant Revenue Officer. PW 340 was an Assistant Examiner of Local Funds who did the audit. PWs 346, 348 and 353 are Magistrates. PW 359 is the Commissioner of the Corporation of Madras. PW 360 has been examined to speak to the receipt of the first information report. PW 357 has been examined to speak to the accord of sanction. PW 358 is the investigating officer who headed the team of investigation.

9. The prosecution mainly relies upon the evidence of the approveRsPWs 1, 2, 3, 4, 5, 6 and 60 besides the evidence of PWs 7 and 8 and certain facts and circumstances of the case and the 168 forged vouchers.

10. The procedure for incurring expenditure by each of the departments of the Corporation is generally as follows. We are mainly concerned with the 409 expenditure relating to Electrical Department. Estimates are expected to be prepared in order to execute the work of maintenance, improvements, new work and for other contingencies. Estimates are prepared by the Electrical SupervisoRsand Charge EngineeRswho are called outdoor officials, at the instance and under the control of the Electrical Engineer. The Taxation and Finance Committee is charged with the duty of preparing a budget for income and expenditure. The Accounts Committee has to supervise the actual utilisation of the amount granted by the budget.

11. The Electrical Engineer is the head of the Electrical Department. It is his duty to see that proper estimates are drawn up. He has also to permit incurring of expenditure on being satisfied, following usual norms. The department is in charge of street lighting, its maintenance and extension and electrical sub-stations, laying of cable, attending the cable fault and fault report as well as maintenance of transformers. The Electrical Engineer is assisted by Assistant Electrical Engineers. The field officeRsusually engaged in the work are the Electrical Supervisors, Assistant Electrical Supervisors, Electricians, Jointers, Assistant Jointers, TimekeepeRsand permanent and temporary labourers.

12. Estimates are prepared by Electrical SupervisoRsand Charge Engineers. Work is carried out by permanent or temporary labourers. If any fault, either in the lamppost or in the cable is detected, a report known as fault report has to be sent to the Range Supervisor concerned for rectifying the defect mentioned in the report. On receipt of such a fault report, an estimate is drawn by the Electrical Supervisor and sent to the Electrical Engineer for accord of sanction. On receipt of such sanction, work is carried out. But, if the nature of work is such that it cannot permit any delay, so, the Supervisor takes up the work by drawing necessary stores and utilising permanent labourers. If, however, the volume of work is more and it cannot be done with the permanent workers, temporary workeRsare employed and work carried out.

13. On completion of the work, wages payable to the laboureRsare to be claimed under the muster-rolls in the beginning of the following month. By that time, the estimate of work is likely to be sanctioned, whether the work is done by permanent laboureRsor temporary laboureRsor by both. Muster-rolls are prepared on monthly basis by the outdoor officials. The muster-rolls will be in the charge of the Electrical Engineer and will be obtained through A.4 clerk. The muster-rolls supplied by A.4 clerk are filled up by the SupervisoRsand sent to A.4 clerk, who is supposed to submit the muster-rolls before the Electrical Engineer or Assistant Electrical Engineer and the muster- rolls will be sent to C.A.D. Muster-rolls are usually prepared by Timekeepers.

14. The Central Accounts Department has to verify the budget allotment, account head, estimates etc. Thereafter the Accounts Officer or the Assistant Accounts Officer will pass the bill and issue cheque in favour of the Head Cashier. The amount in the cheque may also cover payment in respect of several departments. The cheque is cashed by one of the Assistant CashieRson being authorised by the Head Cashier and amounts handed over to the Assistant Cashier in respect of the muster-rolls. The Senior Assistant Cashier will hand over the cash to the indoor cashier, Shroff, the Pension Cashier and to the Tax CollectoRsfor disbursements to be made by the outdoor cashier. The voucheRsand the amounts payable are handed over to the Tax CollectoRsand the Tax 410 CollectoRsdistribute the amount in the presence of the Field Officer at the outdoor payment centre. The voucheRsof the unpaid balance, if any, are handed over to the Cash Section. The voucheRsare then sent to the Voucher Section for safe custody.

15. The prosecution case is that respondents-accused along with the approveRsPWs 1 to 6 and PW 60 viz. PW 1 E. Kannappan and PW 2 P. Ramachandran, Clerks who were working in A.4 seat, PW 3 S.E. Sundram who was working in the Central Accounts Department, PW 4 P. Ratinam and PW 60 who were in Cash Department as Assistant Cashiers, PW 5 K.N. Rajappan Nair who was working as Electrical Supervisor, and PW 6 Kalavathy who was working as Charge Engineer, along with the other accused viz. Corporation employees working in indoor and outdoor in the Electrical Department (A-2 to 8, 10, 11, 14, 16 to 26, 29 to 31, 33 to 39 and 41 to 44); the Corporation employees working in the Central Accounts Department (A-45 to A-49); the Corporation employees working in the Cash Department (A-50 to 55 and 66, 68, 69 and 72); and the CouncilloRsi.e. Chairman and MembeRsof the Taxation and the Finance Committee (A-75 to 80 and 82);

Chairman and MembeRsof the Accounts Committee (A-84 to 86) MembeRsof Works Committee (A-87 and 89); MembeRsof the Education Committee (A-94 to 96); MembeRsTown Planning Committee (A-98 and 99) CouncilloRs(A-102 and 104); and a private individual, former labourer Municipal Corporation of Madras (A-106); between April 1969 to November 1973 agreed to do or cause to be done illegal acts to wit:

(a) Fraudulently and dishonestly to obtain by fabricating or causing to be fabricated muster-rolls which are claims for the payment of money by the Corporation of Madras in respect of employment of temporary laboureRsin the Electrical Department.

(b) To negotiate the said fabricated muster- rolls through the various departments and sections of the said Corporation namely the Central Accounts Department, the Cash Department and Voucher Section of the Cash Department by willfully, dishonestly and fraudulently discarding the rules governing the presentation, passing, encasing and acquittance of such muster-rolls by various acts of omission and commission.

(c) Fraudulently and dishonestly to use such fabricated muster-rolls by cheating the Corporation to obtain from the Cash Section of the said Corporation sums of money to the tune of Rs26 crores purporting to be money payable to the temporary laboureRsemployed in the Electrical Department.

(d) To make incorrect records in respect of such payment with intent to facilitate the commission of the above-said illegal acts and cause loss to the Corporation of Madras.

(e) To obtain pecuniary advantage for themselves and otheRsfrom out of the money so fraudulently and illegally got from the Corporation of Madras.

(f) To secret and cause the disappearance of evidence relating to the embezzlement of the funds of the Corporation of Madras by destroying the forged muster-rolls and the voucheRsevidencing the payment obtained thereunder.

411 (g) To abet one another in the commission of such illegal acts; and the prosecution case further is that in pursuance of the above-said conspiracy the TimekeepeRsentered the name of fictitious persons in the muster-rolls and the other field officials of the Electrical Department namely Electrical Supervisors, Charge EngineeRswithout verifying whether the central (sic) worked or not, passed them on the clerk working in A.4 seat, with fictitious estimate numbeRsand appropriation number entered on the muster-rolls and in turn A.4 clerk who has to verify and check the correct estimate numbeRsand appropriation numbeRsand other formalities, passed them on to the Electrical Engineer. The Electrical Engineer in turn without verifying the genuineness of the muster-rolls passed them. The outdoor officials and the Electrical EngineeRsreceived payments from A.4 clerk i.e. from A- 34 and A-35 till July 1972 and thereafter from PW 1 and PW 2 then A.4 clerks, sent them to Central Accounts Department along with the genuine musterrolls after separately docketing the forged muster-rolls.

16. The prosecution case further is that in pursuance of the conspiracy the employees in the Central Accounts Department passed, for payment of the forged muster-rolls without verifying and checking the correctness of the estimate numbeRsand appropriation numbeRsand other formalities and after informing the A.4 clerk over phone that the forged muster-rolls had been passed for payment sent them to the Cash Department along with the cheques after receiving monthly payments from A-34 and A-35 till July 1972 and afterwards from PW 1 and PW 2. The prosecution case further is that in pursuance of the conspiracy, instead of sending the muster-rolls and the cash through tax collectoRsfor disbursement to the laboureRsin the presence of outdoor officials in the work spot, which is the rule as per the Corporation code, paid the cash and handed over the muster-rolls to A.4 clerk in the indoor counter itself, after taking 5% commission in the first stage of conspiracy and after taking 10% commission in the last stage of the conspiracy that is October 1973. The prosecution case further is that in pursuance of the conspiracy the Corporation Councillors, i.e., office-beareRsof the Taxation and Finance Committee, and membeRsof the other committees, obtaining pecuniary advantages for themselves and to others, from A-34 and 35 till July 1972 and afterwards from PW 1 and PW 2 by wilfully abstaining from discharging the statutory duties in regard to the administration of funds of the Corporation of Madras.

17. The prosecution during investigation was able to secure 168 fully bogus voucheRsand they were marked as exhibits.

The accused were charged under Section 120-B IPC read with Sections 467, 471, 420, 406, 409, 465, 162, 163, 167, 201 and 109 of IPC and under Section 5(2) read with Section 5(1)(d) and 5(1)(a) and 5(3) of Prevention of Corruption Act, 1947. The trial court in its judgment in CC No. 20 of 1974 dated 30-11-1978 sentenced all the accused respondents under Section 120-B IPC on the strength of the evidence of approveRsPWs 1 to 6, PW 60, PW 7 and PW 8 and on the strength of the documentary evidence namely the 168 muster- rolls marked by the prosecution and other connected documents and other witnesses, holding that the approvers' evidence have been materially corroborated. The lower court convicted the accused under Section 465 IPC on the strength of the evidence of PW 1, PW 2, PW 5, PW 6 and on evidence of fingerprint expert and handwriting expert i.e. PWs 329 and 330. The trial court convicted the accused in Central Accounts 412 Department under Section 467 read with Section 471 IPC on the strength of the evidence of the approveRsPWs 1, 2, 3, 4 and 60. The trial court convicted the accused under Section 5(2) read with Section 5(1)(a) and 5(1)(d) of the Prevention of Corruption Act on the strength of the evidence of the approveRsPWs 1, 2, 4 and PW 60 and on the evidence of other independent witnesses PWs 63 to 235, 282, 295, 297, 334, 335 and 341 to 345 and also taking into consideration the acquisition of properties by the respondents-accused as a corroborative piece of evidence.

18. The trial court convicted the CouncilloRsunder Section 120-B IPC, Section 162 IPC and under Section 5(2) read with Section 5(1)(d) and 5(1)(a) of the Prevention of Corruption Act, 1947 on the evidence of the approveRsand other independent witnesses evidencing that the CouncilloRsare public servants and the Prevention of Corruption Act is applicable to them. The trial court has held that the sanction for prosecution of the accused accorded by the Government, a superior authority was valid in law.

19. The High Court delivering a common judgment on 9-4-1990 in all the appeals has acquitted all the accused against all the charges and properties seized from the respondents are ordered to be returned and the attachment effected in respect of the properties raised.

20. It may not be out of place to mention that accused 1, 83 and 103 died during trial and the charge against them had abated. Accused 2, 4, 44, 68 and 69 died during the pendency of the appeals before the High Court and accused 7, 19, 24, 25, 30, 39, 48, 75, 76, 78, 79, 89, 95 and 99 died during the pendency of the present appeals before this Court.

21. The Special Judge (trial court) acquitted accused 9, 12, 13, 15, 27, 28, 32, 40, 56 to 65, 67, 71, 73, 74, 81, 88, 90 to 93, 97, 1 00, 1 01 and 105.

22. The High Court on appeal by the convicted accused acquitted all of them. Learned counsel for the appellants before us submitted :

(i) The High Court has held that the prosecution was not able to produce direct evidence regarding the commencement of the conspiracy taking as if there are three different conspiracies first up to July 1972 when PW 1 was first inducted into the conspiracy by A-35 and instructing PW 1 in A-2's room as how to prepare bogus muster-rolls; and another from July 1972 to October 1973 when PW 1 was in A.4 seat; and the third from October 1973 till the end when PW 2 took over A.4 seat.

(ii)The High Court has held that the conspiracy has been made out from the Audit Report as spoken to by PW 340 ignoring that the prosecution has filed 168 voucheRsfor the period of April 1969 to November 1973 to prove the conspiracy as well as the specific offences of forgery and using the forged documents knowing them to be forged.

(iii)The High Court has not correctly applied the scope of Section 10 of the Evidence Act while dealing with the subject of the conspiracy and while considering the scope of the decision reported in Kehar Singh v. State (Delhi Admn.)1.

(iv)The High Court has held that there is no independent corroboration for the evidence of the approvers, ignoring the fact that 168 voucheRsrelied on by 1 (1988) 3 SCC 609: 1988 SCC (Cri) 711: AIR 1988 SC 1883 413 the prosecution is the independent corroboration by way of documentary evidence.

(v) The High Court has held that one accomplice cannot corroborate another accomplice on the ground that all the 7 approveRsin this case corroborate each other ignoring the fact that in the present case one approver has been taken from each department and he speaks with reference to the accused in his department. Regarding the evidence of fingerprints of the accused, they have been taken by the persons namely Head Constable and Constable and since the fingerprints were taken by the persons not empowered to take the fingerprints, they are not to be considered at all.

(vi) That the High Court while relying on Section 2(b) of the Identification of the PrisoneRsAct, 1920 has taken the view that the third category police officer mentioned in the section, namely "or any other police officer not below the rank of sub-inspector" is the proper person to take the fingerprints ignoring the fact that the first category police officer, namely the police officer contemplated in the present case, and as per Section 2(o) of the Code of Criminal Procedure " officer in charge of police station' includes, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties the police officer present at the station house who is next in rank of such officer and is above the rank of constable or, when the State Government so directs, any police officer so present." (vii)That the sanction accorded by the Government is not valid on the ground that the sanction should have been accorded by the Special Officer of the Corporation and not by the Government.

(viii)That the High Court should have held that the authority who had granted the sanction must be superior to the appointing authority and since the Corporation had been superseded, the Government was competent to grant the sanction.

(ix) That the High Court erred in holding that nobody speaks on oath that the work, as shown in the bogus vouchers, was actually not done.

(x) That regarding CouncilloRsthe High Court erred in holding that the CouncilloRsare not public servants, and hence the CouncilloRscannot be punished for the offences under the Prevention of Corruption Act, 1947. It has not considered at all the evidence led by the prosecution regarding the offences under Sections 120-B Indian Penal Code and 467 read with Section 109 Indian Penal Code and Section 162 Indian Penal Code. The High Court has also acquitted all the CouncilloRscharged under IPC offences without adverting to the evidence at all.

(xi) That the High Court held that there was no independent corroboration for the PW 1 approver's evidence regarding passing of the bogus voucheRswhereas these bogus voucheRsbear ample corroboration to the evidence of approver, PW 1.

(xii)That the High Court should have held that the Act of passing 54 fully bogus voucheRsknowing them to be forged clearly established that he was a member of the conspiracy and in pursuance of the conspiracy the respondent passed these voucheRswhich contained so many defects.

414 (xiii) That the High Court should have convicted the non- employees accused persons under Section 120-B Indian Penal Code and should have held that the act of passing fully bogus voucheRswas done only in pursuance of the conspiracy.

(xiv)That the High Court erred in holding that PW 1's evidence when he says he was paying to various accused, monthly, cannot be believed since the amounts alleged by him to have been received every month and the amounts alleged to have been paid to the various accused do not tally. The High Court should have ignored the minor discrepancies.

(xv) That the High Court has erred in holding that PW 4 the Assistant Cashier from the Cash Department comes into the picture only after the musterrolls are passed and cheque issued in favour of the Head Cashier, and the cheque is cashed and brought to counter, and he does not claim to know as to how bogus muster-rolls were prepared or as to how the muster-rolls are processed in the Electrical Department or even as to how the muster-rolls are dealt with by the Central Accounts Department. The High Court has failed to see that as per the evidence on record, that PW 4 and the other accused from the Cash Department knowing that the muster-rolls are forged ones handed over the voucheRsas well as the amount to the accused looking after A.4 seat which is illegal and prohibited, as per the Corporation Code.

(xvi)That the High Court has misunderstood the evidence of PW 1 when PW 1 says 5% commission was deducted by the Cash Department (A-50 to A-55) corroborated by the evidence of PW 4 and PW 60 for handing over the cash and the voucheRsto A.4 clerks as if it was one of the objects of the conspiracy put forth by the prosecution and since the month-wise payment of cash to A.4 clerk after deducting 5% commission to them does not tally with the actual amount said to have been transacted in that particular month from the available vouchers, there is no conspiracy made out.

(xvii)The High Court following the decision reported in Mohd Hussain Umar Kochra v. K.S. Dalipsinghji2 should have held:

(SCC p. 436, para 15: Cri LJ p. 15, para 15) "The evil scheme may be promoted by a few, some may drop out and some may join at later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient. New techniques may be invented and new means may be devised for advancement of the common plan." (xviii)The High Court should have held that the respondent as membeRsof the Taxation and Finance Committee and being the custodian of the finances of the Corporation in spite of repeated deficit budget and intimation from the Government asking for utmost economy in the matter of expenditure had been giving increased grants to the Electrical Department and this act of willfully abstaining from discharging the statutory duties in regard to the administration of the funds of local authority, was done in pursuance of the conspiracy and should have convicted this respondent under Section 120-B IPC.

(xix)The High Court should have held the respondent as member of the Taxation and Finance Committee and thereafter as Mayor in Corporation of 2 (1969) 3 SCC 429: 1970 Cr LJ 9 415 Madras and being the custodian of the finances of the Corporation in spite of repeated deficit budgets and intimation from the Government asking for utmost economy in the matter of expenditure had been giving increased grants to the Electrical Department, and this act of willfully abstaining from discharging the statutory duties in regard to the administration of the funds of local authority, was done in pursuance of the conspiracy and should have convicted this respondent under Section 120-B IPC.

(xx) The High Court should have held that the respondent as member of Education Committee has got a duty to call the attention of the proper authority to any neglect in the execution of municipal work, to any waste of municipal property as per Section 25 of the Corporation code, and this act of willfully abstaining from discharging the statutory duties in regard to the administration of the funds of the local authority, was done in pursuance of the conspiracy and should have convicted this respondent under Section 120-B IPC.

(xxi)The High Court should have held that the respondent as a member of the Planning and Improvements Committee has got a duty to call the attention of the proper authority to any neglect in the execution of municipal work, to any waste of municipal property as per Section 25 of the Corporation code and this act of willfully abstaining from discharging the statutory duties in regard to the administration of the funds of the local authority, was done in pursuance of the conspiracy and should have convicted this respondent under Section 120-B IPC.

(xxii) The High Court should have held that the respondent as a member of the Works Committee and as a Councillor he has got a duty to call the attention of the proper authority to any neglect in the execution of municipal work and to any waste of municipal property as per Section 25 of the Corporation code, and this act of willfully abstaining from discharging the statutory duties in regard to the administration of the funds of local authority, was done in pursuance of the conspiracy and should have convicted this respondent under Section 120-B IPC.

(xxiii) The High Court should have held that the respondent being Chairman of Accounts Standing Committee as such has got duties to conduct a monthly audit of monthly accounts and is bound to check the monthly abstract receipts and disbursements for the preceding month and this act of willfully abstaining from discharging the statutory duties in regard to the administration of the funds of local authority, was done in pursuance of the conspiracy and should have convicted this respondent under Section 120-B IPC.

(xxiv)The High Court should have held that the respondent as Chairman of Taxation and Finance Committee and being the custodian of the finances of the Corporation in spite of repeated deficit budgets and intimation from the Government asking for utmost economy in the matter of expenditure had been giving increased grants to the Electrical Department, and this act of wilfully abstaining from discharging the statutory duties in regard to the administration of the funds of local authority was done in pursuance of the conspiracy should have convicted this respondent under Section 120-B IPC.

23. The trial court dealt with the evidence in relation to

(a) conspiracy in A-2's room,

(b) conspiracy at Kavita Hotel,

(d) conspiracy at Rekha Lodge,

(e) conspiracy at A-87's house and

(f) conspiracy at Usman Road Electrical Sub-station and it will be useful to give the 416 findings recorded by the trial court regarding various conspiracies noticed above separately.

(a) Conspiracy in A-2's room

24. Soon after taking over the A.4 seat in July 1972, PW 1 was summoned to A-2's room. According to him, he found A-2, A-6, A-35, A-39 and A-44 in the room. It was about 2.00 p.m. PW 1 has alleged that A-35 and A-44 had given him detailed instructions as to what he should do in the matter of bogus muster-rolls. He was apprised that by about the 25th of every month, the membeRsof the field staff, viz., A-6, A-7, A-10, A-12, A-13, A-17, A-18 and PW 6 and otheRswould approach him and ask for extra muster-roll forms which PW 1 should unhesitatingly give and that entries in the muster-rolls issue register should be suitably adjusted by increasing the issue in the case of persons who had not taken much and thereby balance the entries accordingly.

Such entries, with a view to manipulation should be made only in pencil to start with and should be confirmed in ink only after these adjustments had been effected. PW 1 was further told that beside these accused who had been enumerated, he should also issue extra muster-roll forms to some otheRswhose names would be indicated by any one of the persons mentioned above from time to time. Those who receive muster-roll forms would bring them back after filling them up which again PW 1 should accept without any hesitation. Although the function of A.4 clerk was to check these muster-roll forms before putting them up to the Electrical Engineer, PW 1 was instructed not to scrutinise such muster-rolls but to process them straight away and put them up to A-2. PW 1 was also assured that the officials of the Central Accounts Department and the Cash Section would cooperate with him in regard to the passing of these muster- rolls for payments and that he would not come across any kind of obstruction from any quarter. PW 1 would thereupon go to the Cash Section and collect the money payable thereunder and the vouchers, and out of the money so obtained, he should effect disbursements to various officials and non-officials as indicated hereunder :

Assistant Cashier on duty known as Indoor Assistant Cashier who has to pay cash in respect of voucheRsshould be permitted to retain 5 per cent of the total amount of these voucheRsand only the balance should be received by PW 1; A- 50 Head Cashier was to be paid Rs4000 p.m.; A-51, A-52, A- 54 and approveRsPW 4 and PW 60 who were the Assistant CashieRswere each to be paid Rs1000 every month; A-55 was to be paid Rs3000 every month; a sum of Rs10,000 was to be paid in lump sum to be distributed among shroffs, gollahs, peons and otheRsin the Cash Section in the Central Accounts Department; payments should be made similarly to the following officials: A-45 Rs1500; A-46 Rs1500; PW 3 Rs1500; A-47 Rs1000; A-48 Rs5000; A-49 Rs3000 and Gozmez Accountant Rs500; in the Electrical Department the following payments were to be made: A-2 Rs3000; A-3 Rs1000; A-4 Rs1000; A-39 Rs5000; A-40 Rs1000; A-41 Rs3000;

A-38 Rs5000; A-44 Rs5000 Abdul Basheer Rs2000; Abdul Jabbar Rs500; Bothaguru Rs500; Murugesan Rs500; PW (sic) Rs500; A-37 Rs1000; A-43 Rs3000; Chandrabagu Rs200 and Panchanathan Rs1000. In regard to the outdoor staff, the following payments were to be made : A-5, A-7, A-8, A-10, A- 12, A- 13, A- 16, A-17, A- 18, A- 19, A-22, A-23 and PW 6 were each to be paid 1/3 of the total value of the bogus muster-rolls prepared and presented for payment by them. A- 6 was to be paid half the value of the bogus muster-rolls prepared and presented for payment by 417 him. A-15 was to be paid half the value of the bogus muster-rolls prepared and presented for payment by him. A- 21 was to be paid a flat rate of Rs2000 p.m. A-20 was to be paid Rs3000 for the muster-rolls taken by him and got prepared. A-29 was to be paid Rs1500 p.m. M. Govindaswamy was to be paid Rs1000; A.J. Thukkaram was to be paid Rs2000. Madurai Muthu was to be paid Rs2000 and Rangan was to be paid Rs1000. A-35 and A-44 after setting out the details of disbursements as mentioned above, referred to the payments which have to be made to Chairman and membeRsof the Taxation and Finance Committee, Accounts Committee and Works Committee and also party leadeRsand important CouncilloRsof the Corporation. This was imperative because these influential persons were in a position to give trouble if they so desired. Therefore, substantial payments were to be made to them so that they did not give trouble. A-35 and A-44 in the end added that PW 1 could take the balance after making all these payments as stated above. PW 1 agreed to abide by these instructions. When A-35 and A-44 concluded, A-2 spoke to PW 1 and asked him to do as instructed by A-35 and A-44 and also assured that there would be no danger in following such a course. PW 1 took leave of A-2 along with A-35 and A-44. On coming out, both A-35 and A-44 warned PW 1 that he should keep all those things as a close secret but however as this racket was known to some of the laboureRsdoing outdoor work and also to some unruly elements and some last grade servants, it was necessary that with a view to keep them under control, they should also be paid some amount out of the bogus muster-roll proceeds, A-35 and A-44 listed out the names of such elements and PW 1 assured them that he would bear that in mind. PW 1 bearing all these instructions in mind settled down to work as A.4 clerk in the Electrical Department by about the middle of July 1972.

25. It is the contention of the defence that firstly, such meeting in the A-2's room could not have been held. They further argued that inasmuch as PW 1 has admitted that he did not have any personal contact with A-2 previously, it is ununderstandable as to how A-2 could have allowed the discussion to take place in his room. It is to be said that the talks were not by A-2 alone and in fact, the bulk of the discussion was only in the form of instruction as to how the bogus muster-rolls should be fabricated, processed and negotiated through the various departments by A-35 and A-44.

Under such circumstances, the mere fact that PW 1 did not have any personal contact with A-2 previously would not in any way affect the holding of the meeting in A-2's room. PW 1 has alleged that the meeting began at about 2.00 p.m. and it has taken about 45 minutes for its completion. It has been suggested on the defence side that at that time, normally A-2 would be very busy and so he could not have afforded to hold this meeting in his room. It is not uncommon that an officer, when such an important matter was being discussed, could easily ask the visitoRsto wait for his interview. PW 1 was just then posted to A-4 seat and in order to continue the conspiracy of the fabrication of the bogus muster-rolls he should be given the full instructions as to how it should be done. Therefore, A-2 would have spent some time and allowed his room for the discussion though it was a busy hour. It must be said that normally 2.00 p.m. will not be a busy hour for an office because it is the lunch interval period for the staff and as such it is probable that the meeting could have been held at that time in A-2's room. PW 1 has even stated that there 418 was not even a typist or telephone operator in that room at that time. This supports the inference that it was the time best suited for holding such meeting.

26. One important factor that has been pointed by the learned defence counsel is that A-35 was on leave from 14-7- 1972 to 31-7-1972 and as such he could not have been present in the room of A-2 at the alleged meeting. Though it is stated that A-35 was on leave during that period, it does not prevent him from coming to the office. The mere fact that A-35 was on leave, even if it is true, will not go to show that he was not present in the meeting. It is also said that A-35 had not introduced the outdoor officials that he had mentioned to PW 1 as the persons who would be coming to him for receiving the blank muster-roll forms and so this is a strong circumstance to indicate that the alleged meeting could not have been taken place. I do not think that any significance could attach for this suggestion inasmuch as A-35 has introduced them to PW 1 when they came to get the blank muster-roll forms during the last week of July 1972. That was the most appropriate time when introduction should have been done. As otherwise if the outdoor staff had been summoned to the room of A-2, the purpose of the meeting would have been smelt by the persons outside.

27. One other important consideration is that PW 1 has not taken a note of those names who according to A-35 and A-44 would come to PW 1 for receiving the muster-roll forms or even the names of the persons to whom amounts were to be paid. Might be that PW 1 was knowing those persons or that PW 1 did not consider it necessary at that time inasmuch as A-35 had been assisting him subsequently not only in the processing of the bogus muster-rolls but also in the matter of disbursements of the proceeds to various persons. The learned counsel has pointed out that normally a person new to the job, when he was apprised about certain things to be done in an illegal way would raise some objection and that admittedly PW 1 not having raised any such objection or expressed any shock would by itself go to prove that there was no such meeting in A-2's room. It must be observed that PW 1 was not in entire darkness about this fraud. According to him, he had an upholding of these things even as early as February or March 1971. Two or three months prior to that he started receiving the small amounts of Rs50 and Rs100 from A-36 and that when A-36 was questioned by PW 1 as to how he was able to give those amounts liberally without pressing for their return PW 1 was told that it was from out of the proceeds of the bogus muster-rolls. Under these circumstances, it is natural that PW 1 did not express any surprise or raise any objection when he was given instructions as to what he has to do with regard to the processing of the bogus muster-rolls. It has been suggested that if there was any meeting in the room of A-2 in July 1972 as alleged by the prosecution, A-48 could not have been referred to as Accountant as he was not an Accountant at that time. It must be observed that A-48 has been referred by PW 1 as an Accountant for the purpose of description and not in reference to the position that he was holding on the relevant date viz. July 1972. Under these circumstances, we could safely say that the meeting as alleged by PW 1 was held in the room of A-2 soon after his appointment as A.4 clerk in July 1972.

28. Bearing these instructions in mind PW 1 has settled down to work as A.4 clerk in the Electrical Department. By about 25-7-1972, the muster-roll forms were to be distributed. The accused who were working in the outdoor approached PW 1 and as already instructed, PW 1 gave muster- roll forms to 419 them as desired.He gave muster-roll forms to A-5, A-6 and A-7 through A-22 and A-23 to A-4, A- 10, A-13 through A-26 to A- 1 2 and A- 1 5 through A-20 and to A-16, A-17, A-18, A-19, A-20, A-21 and A-29. A-35 introduced PW 1 to the outdoor staff as one who had come to A.4 seat and would continue the existing practice in regard to the various accused as stated above. A-35 suggested to PW 1 to give 10 more muster-roll forms to A-20 stating that he would prepare them and bring them back to A-2 without the signature of the outdoor officials. But PW 1 was not agreeable to this and suggested that A-20 might obtain the signatures of any outdoor official and bring the forms to him. A-20 assured that he would obtain the signatures of PW 5 and A-9 and so saying, took 10 musterroll forms from PW 1. A-35 gave PW 1 appropriate instructions as to the procedure to be followed in processing the genuine and the bogus muster-rolls. He advised PW 1 that he should himself take those muster-rolls to A-44 and after processing them there, obtain the signatures of A-2, separate the bogus muster-rolls from the genuine ones, docket them, and present them before A-46 and A-47. A-35 further advised PW 1 that PW 1 would be intimated by A-46 or PW 3 as and when the voucheRswere ready for payment; thereupon PW 1 should go to the Cash Section and collect the money and voucheRsfrom there. The voucheRsreceived from the Cash Section may be sent to the field officeRsconcerned for getting the acquittances but there was no hurry in getting back these voucheRsfrom the field officers. Even if they were not returned to Cash Section, those in that section would not very much mind it.

It was also possible to get back these voucheRsfrom the Voucher Section even after they were sent to that section and destroy them. The voucheRsobtained from the Cash Section could again be used if there was need to utilise them once again for getting more money. This could be done by just removing the last muster-roll which would contain the endorsement of passing and payment orders. After removing the last page of the muster-roll forms, the earlier pages could be used once again and money could be obtained repeatedly. In such of those muster-rolls where the Budget Estimate No., Appropriation No., Head of Account etc. were left blank such lapses could be repaired by PW 1 himself by mentioning some imaginary figures and particulaRssuitably.

A-35 not only gave all such instructions as stated above but also was helping PW 1 in his work and also guiding him now and then. A-35 had been introducing PW 1 to the outdoor officials when they came to receive the blank muster-rolls.

In their presence, PW 1 was told as to what he should do with regard to them and A-35 also informed those outdoor officials that PW 1 would be doing everything that he (A-35) was doing previously. From what is said to have been stated by A-35 and A-44, it is clear that this criminal conspiracy that its origin was not only in July 1972 but also very much earlier. According to the prosecution this conspiracy dates back from April 1969 and continued till November 1973. The evidence both oral and documentary produced by the prosecution makes it abundantly clear that during the year 1969-1973 quite a large number of muster-roll forms were procured by the outdoor staff of the Electrical Department by means which are not permitted under the rules and utilised for fabricating the claims in respect of the temporary laboureRspurporting to have been employed outdoor in connection with the works of the Electrical Department.

The prosecution evidence as far as this period of criminal conspiracy is concerned, has been set it in the evidence of PW 4 Rathinam (approver) who was one of the Assistant CashieRsworking in 420 the Cash Section of the Revenue Department of the Corporation. He joined service of Upper Division Clerk in November 1949 in the Corporation and after serving in the Central Accounts Department and Revenue Department for some time, was appointed as an Assistant Cashier in 1967. A-50, A-51 and A-54 and one C. Nagabushanam were the other Assistant CashieRswho were working with him at that time.

It was then that A-34 was the clerk occupying the A.4 seat of the Electrical Department. PW 4 has stated that even at that time, he had seen A-34 coming to the Cash Section and making payments to A-50, A-51 and A-54 and when he asked A- 34 as to why he was not given any money, he was advised not to worry himself about such matteRsas he was to come up in his career. It is clear from the evidence of PW 4 that even as early as in November 1967, the then A.4 clerk was associating himself with A-50, A-51 and A-54 and was making payments which were certainly not in the normal course of his work. PW 4 appeaRsto have come closer to this circle for the first time in February 1968 when he got his indoor counter and took the voucheRsrelating to the Electrical Department from PW 4, sorted them out and retaining voucheRsother than those intended to be paid at the outdoor handed them over to A-68 who passed them on to PW 4 and asked him to pay the money thereunder in a lump sum to A-34. A-68 was assisting PW 4 in the counter. PW 4 felt that this procedure was improper on which A-68 who was an experienced gollah assured him that it was the practice that has been followed by all the other Assistant CashieRsand it was only then that all of them would be profited. A-68 further told him that unless PW 4 did likewise, it would not be possible for him to get on in this seat. A-34 who was there at that time also underlined the advice tendered by A-68 to PW 4 and added that this affair was known to the Electrical Engineer and other higher-ups. A-34 assured PW 4 not to get frightened. Thereupon PW 4 paid the sum of Rs20,000 as also the voucheRstherefore, in the hands of A-68, who after retaining some portion of the money, handed over the balance to A-34. PW 4 made a note of the voucher particulaRswhich were handed over to A-34 with a view to making entries in the indoor posting book. PW 4 also speaks to his having noticed that A-34 making payment to his colleagues and on seeing this, when he asked A-34 as to why he was not paid, A-34 remarked that his (PW 4) share was included in the money retained by A-68. However, A-34 promised to make payment to PW 4 every month like any other Assistant Cashier. That month A-68 paid a sum of Rs400 to PW 4 observing that it was his share for handing over the money and the voucheRsto A-34. When PW 4 asked A-68 as to when the voucheRswould come back, he assured him that he need not bother about these things as this affair was known to every one and that further the responsibility of sending the voucheRsto the Voucher Section was that of the gollah. PW 4 also speaks about A-34 making payment of Rs50 every month to him from the following month. He again got his indoor duty in July 1968 and in the meanwhile, he got himself sufficiently trained with regard to the deduction of 5 per cent of the total proceeds of the bogus muster-rolls paid to A-34. The amounts so retained were shared by the gollah assisting him in the counter, the Head Cashier, the other gollahs an the other Assistant CashieRswho were not on turn duty. The payment of Rs50 was increased to Rs100 during Deepawali month in 1968 by A-34. He was also receiving Rs50 p.m. during the months when he was not in the indoor counter from the respective indoor duty Assistant Cashier.

It is no doubt true that all this 421 evidence relates to the period prior to April 1969. But it must be remembered that this is a case of criminal conspiracy and that as such, although the evidence relating to the period prior to the duration of the conspiracy should not be looked into in regard to the criminal conspiracy, itself, such factoRsare certainly necessary to explain or to introduce the criminal conspiracy which is the Fact in Issue in this case. In order to find out as to when exactly the conspiracy was hatched, it will be certainly necessary and also relevant to look into the background in which such a conspiracy took its route. This aspect of evidence relating to the activities of A-34, A-50, A-51, A-54 as also PW 4 becomes relevant under Section 9 of the Indian Evidence Act.

29. PW 4 proceeds to say that he got his indoor turn duty in April 1969 and again in August 1969 and during these months it was A-34 who brought the bogus muster-rolls to him and got the money and the paid voucheRsthereunder from him.

PW 4 retained 5 per cent of the total proceedings for being distributed among the other Assistant Cashiers, gollahs and for himself. This evidence of PW 4 is also corroborated by unimpeachable documentary evidence. According to Exh. P- 3105, the indoor posting book, PW 4 is found to have made the entries of payments at the indoor counter in respect of Voucher Nos. 3307, 3308, 3698 and 3699. These entries have been marked as Exhs. P- 1 0800, 10804, 10807 and 1081 1.

These voucheRsare not available now and the case of the prosecution is that the paid voucheRswhich normally have to be retained in the safe custody of the Voucher Section on receipt from the Cash Section are missing. The significance of the fact of these voucheRsmissing will be dealt with later while dealing with the evidence of PW 1 in greater detail. It is also seen that PW 4 got his indoor turn duty in November 1969 when he was also assisted by A-68. Even on this occasion, it was A-34, who according to him, came and handed over the bogus muster-rolls and got the proceeds thereunder from him together with the paid vouchers. PW 4 has stated that the value of the bogus muster-rolls on this occasion would be about Rs50,000 and he got a sum of Rs1000 towards his share out of the usual 5 per cent deduction. A-68 had insisted that he should have an equal moiety as that of PW 4. The evidence of PW 4 which is confirmed by the documentary evidence Exh. P-1306 and the entries found herein, viz., Exhs. P-10839, 10845 and 10848 would show that PW 4 had made payments at the indoor counter in respect of Voucher Nos. 1672, 1673, 1677, 2418 and 4402.

That A-68 was assisting him is also proved by the entries concerned relating to the dispatch of the voucheRsmade in Exh. P-1497, the dispatch book maintained in the Cash Section. Even here, the voucheRsconcerned were missing and PW 4 had referred to these entries only with reference to the indoor posting book Exh. P-3106. PW 4 again got his indoor turn duty in February 1970. Even on this occasion, A734 brought the bogus muster-rolls to the tune of Rs50,000 and got both the voucheRsand money payable thereunder after the deduction of 5 per cent from PW 4. PW 4 distributed the 5 per cent amount as usual among his colleagues. Here again, the fact that PW 4 was on indoor duty and paid money in respect of the voucheRsmentioned by him at the indoor counter is found from the entries Exh. P-10250 in Exh. P- 1309. The voucher concerned is Exh. P-1585. The fact that PW 4 got the money that day from the Senior Assistant Cashier on duty is borne out by Exh. P-10251 an entry in Exh. P-1515 in the S.A.C. book. There are also other voucheRswhich are missing. They were paid by PW 4 during this month and 422 they are Voucher Nos. 979, 2745 to 2748. The relative entries are Exhs. P-10859 and 10862 in Exh. P-1307 and P- 10864, 10868, 10871, 10874 and 10877 are in Exh. P-1308.

It is, therefore, clear from the above evidence of PW 4 that during the yeaRs1969-70 it was A-34 as the then A.4 clerk who was coming to the Cash Section and was getting money under the bogus muster-rolls from the indoor counter Assistant Cashier. This evidence of PW 4 is confirmed by unimpeachable and contemporaneous documentary evidence furnished in the form of entries found in the indoor posting book and in the Senior Assistant Cashier's posting book. It is no doubt true that there is nothing to show in the indoor Assistant Cashier's posting book that A-34 had actually taken the bogus muster-rolls and the money from the indoor counter.

30. Much emphasis has been laid by the learned counsel for the accused on this aspect. It is contended that the fact that A-34 came to the indoor counter and took money and the bogus voucheRsrests solely on the oral testimony of PW 4 who is after all an approver, and therefore, his testimony as far as A-34 and the part played by him is concerned is not at all corroborated by any other independent witness. I have already indicated how testimony of PW 4 is borne out by the entries in the indoor posting book and in the Senior Assistant Cashier posting book. Therefore, it cannot be said that there was no corroboration at all as far as PW 4 is concerned. As regards the documentary proof to show that money have been paid to A-34, it must be remembered that these payments are in respect of bogus voucheRspaid in a lump sum at the indoor counter, a course which is wholly unauthorised. The payments to laboureRsshould be made only at the payment counteRsafter proper identification with appropriate acquittance. Only those payments which have to be made to the laboureRswho have been left out at the payment centeRsare to be made to such laboureRsafter proper identification and acquittance across the indoor counter. As the prosecution case is that A.4 clerk was obtaining money and voucheRsonly in pursuance of the criminal conspiracy it cannot be said or expected that such receipts by A.4 clerk would be evidenced by any documentary evidence as it is a procedure which is strictly unauhtorised. As money are paid by the Senior Assistant CashieRsfor disbursements at the payment centres in lump sum such payments would be evidenced by appropriate entries in the S.A.C. posting book and T.C. posting book under proper acknowledgments by the tax collectors. Such record is available because they were made in the proper and prescribed mode of procedure. As per the prescribed procedure, no lump sum payment could possibly be made at the indoor counter in respect of the temporary labourers. This fact is emphasised by PW 339, a responsible official of the Corporation. He has categorically stated that payments to temporary laboureRscould be and are made only at the outdoor payment centres and not in the indoor counter.

While it is so, in the generality of the cases as far as payments at the indoor counter are concerned, it is not as if there is no documentary evidence for A-34 having taken any payment himself, it is seen that in respect of Exh. P- 1587, which is according to the prosecution, a fully bogus voucher, A-34 has signed in the T.C. posting book at page 51 of Exh. P-1518 in token of his having taken the lump sum from the Senior Assistant Cashier. It is Exh. P-10283, A- 34, as A.4 clerk had no business normally to go to the Cash Section and take lump sum payment. This also made the evidence of PW 4 that A-34 was coming to the Cash Section and was taking money from there was highly probable.

423 (b) Conspiracy at Kavitha Hotel

31. PW 1 has referred to another incident that took place in May and June 1973 in which the Cash Section people started creating trouble and threatened to interfere materially with the smooth running of the racket. He was informed by A-35 that a meeting had been convened at the Kavitha Hotel, by A-50 in which the other Assistant CashieRswould also be participating for the purpose of discussing about the bogus muster-rolls. On invitation PW 1 attended this meeting which took place on 1-5-1973 at the Kavitha Hotel. A-35, A-50, A-51, A-54 and PW 4 were there. A-50 informed him and A-35 that the volume of bogus muster-rolls was on the increase and in view of the fact that large amounts were being realised therefrom they might be exposed to danger at any time and expressed a desire to put a stop to this. At this PW 1 and A-35 observed that as the higher- ups were also connected with this affair there was no possibility of danger and this made Assistant CashieRsagree to continue. On 3-6-1973 there was another conference in the same place which was attended to by PW 1, A-35 and A-37.

It was decided on the advice of A-50 that while taking the bogus muster-rolls from the Cash Section a despatch register should be opened and entries made of such bogus muster-rolls while taking them. PW 1, A-35 and A-37 agreed to this and A-37 was entrusted with this responsibility of maintaining the despatch book. That the Hotel Kavitha was being used on these two dates is spoken to by PW 32, the Receptionist attached to the Kavitha Hotel. According to him Room No. 9 was booked on 1-5-1973 by one Sriramulu. Exh. P-10211 is the entry in Exh. D-100 the register for arrival. He has also stated that only one person came while booking the room and that after a while three or four persons also came. The room was vacated at 5.30 p.m. as per Exh. P-10213. Again on 3-6-1973 Room No. 4 was booked by one E. Kannappan at about 11.00 a.m. Exh. P-10215 is the entry in Exh. D-100.

Three or four persons came along with E. Kannappan. The room was vacated at 6.30 p.m. Exh. P-10217 is the entry in Exh. D-101 the departure register. The learned counsel for the accused has contended that evidence of this witness cannot be taken as corroboration of PW 1's testimony because PW 32 had admitted that he could not identify the persons who came to the hotel on 1-5-1973 and 3-6-1973 one should think that if PW 32 was to identify any of the occasion it would sound highly artificial because Kavitha Hotel is a public place which would be attended by a new person every day and to expect PW 32 to recognise some of those persons who had stayed in a particular room, some yeaRsback would be too much. It is only if PW 32 had identified particular accused his evidence would smack of artificiality. As such I must hold that this evidence of PW 32 affords corroboration of the evidence of PWs 1 and 4 in this regard.

32. It has been pointed out that the Kavitha Hotel episode should be falsehood inasmuch as PW 1 has not spoken anything about the same either in his statement under Section 161 CrPC or in his confession under Section 164 CrPC . In answer to this, it must be observed that the meetings at the Kavitha Hotel were organised and held only by the Cash Section people. PW 1 did not organise it and he was only an invite and further these meetings were not of much importance as far as he was concerned. Therefore, the omission on his part to make a mention about these meetings in his Section 162 or 164 statement is not of much significance. It is not as if the incident at the Kavitha Hotel had 424 been introduced for the first time only before the Court.

PW 4 a member of the Cash Section has already spoken about these incidents in his Sections 162 and 164 statements.

33. It is seen that although A-75, A-78, A-79, A-80, A-84 and A-94 were paid as much as Rs30,000 by PW 1 and they have assured him that they would see to it that no trouble was cropped up in regard to the bogus muster-rolls, it is these very persons who continued to create trouble evidently to have upper hand in the matter and obtain as much money as possible out of this racket, and at the same time making it appear that they were quite earnest in discovering the source of this racket with a view to exposing it. This attitude is displayed by A-75 who along with A-79 and A-80 as Chairman and MembeRsof the T & F Committee began inspecting the outdoor offices ostensibly for checking such establishments. One of these establishments inspected by these accused was the Usman Road Sub-station of which PW 5 was the Supervisor. A-75 accompanied by his personal clerk PW 56 and A-79 and A-80 looked into the records and the muster-rolls in particular those that were in use for the month of September 1973 and a similar list of blank muster- rolls that were kept unused. It was PW 56 who took down this dictation in his stenographer's notebook. After inspection A-75 called PW 5 aside and demanded a sum of Rs1000 which he said should be paid every month thereafter.

After some bargaining, the demand was reduced to Rs500. A- 75 threatened PW 5 that should he not pay this money, he would have to face severe action, PW 5 had no other alternative except to agree. On this assurance, A-75 got the stenographer's notebook, tore off the notes dictated by him and handed them over to PW 5. Exh. P-13871 are the three sheets containing the notes. By this tactic A-75 assured himself of a regular payment of Rs500 per month by PW 5 thereafter. This evidence of PW 5 as far as the inspection, the notes taken down and handing over of Exh.

P-13871 by A-75 to PW 5 are concerned, has also been spoken to by PW 56 which affords striking corroboration to the testimony of PW 5. Further the fact that these accused did not take any further action as follow-up of the inspection is also in my opinion the further confirmation of the testimony of PW 6 in this regard. It is also noteworthy that Exh. P- 1 3871 which was handed over by A-75 to PW 5 was recovered in the course of the house search of the residence of f PW 5. This recovery also rendeRsthe testimony of PW 5 highly probable.

34. The evidence on record discloses that this inspection by A-75, A-78, A-79 and A-80 was not an isolated act unrelated to the criminal conspiracy nor was it done out of honest motives. There is abundant evidence to show that this was only a rule adopted by these accused as stated by me already to have the upper hand for the purpose of extorting money. There is also evidence to show that on 29- 9-1973 at a time when A-2 was on leave and PW 10 was holding charge as the Electrical Engineer, A-75 and the membeRsof the T & F Committee called for the production of the muster- roll issue register. PW 10 was not inclined to produce the register without the order of the Commissioner. He, therefore, asked PW 2 to make out a note of the entries asked for by A-75