KHANDU SONU DHOBI AND ANR. versus STATE OF MAHARASHTRA

KHANDU SONU DHOBI AND ANR.

STATE OF MAHARASHTRA

February 1,5, 1972

[J, M. SHELAT, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J

Penal Code 1860 (45 of 1860)-S. 4-03-Dishonesr misappropriation for .time only is misappropriation.

Prevention of Corruption Ac~ (2 of 1947)-S. SA-Inve1ttigation con-ducted ~n breach of section-Illegality must result ·in miscarriage of justice.

Bo1nbay Land_ Improvement Schemes Act, 1942-Sub-section (1) and (2) of s. 23-Bar of prosecution applies on(v to any thing done in good faith or ·•under" the Act.

The appellants entrusted with the duties of carrying out improvement schemes under the Bombay Land Improvement Scheme Act, 1942, were charged with the offence of preparing false documents and committing crimi.nal breach of trust in :respect of certain amount. It was ·alleged that even thougl) no work had been done and no amount had been dis-bursed they prepared documents showing the doing of the work and pay-ment oJ.. the '3mount. They were convicted under s. 218 read with sec-tion 34. section 477A read with section 34 and ~ection 409 read with :section 34 of the Indian Penal Code as well as section 5(2) read with section 5(i)(d) of the Prevention of Corruption Act. The High Court affim1ed the conviction. In the appeal to this Court it was contended that after the matter had been reported to the higher authorities the recti-fication wdrk W3.S done and the money was disbUrsed for the purpose for which it had been entrusted; that the conviction was bad beC)ause of non-compliance with section 5A of the Prevention of Corruption Act; and that the prosecution was barred by time unde• •· 23 of .the Bombay Land Improvement Schemes Act, 1942.

Dismissing t_he appeal,

HELD : (i) There is no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents, bad nlso committed criminal breaC'h of trust '3Dd were in the discharge of their duties guilty of criminal misconduct as defined in s. 5 of the Pre-,ventic.il of Corruption Act.

(ii) It is no answer to charge of criminal misappropriation that after the 111atre:r had been reported to the higher authorities the accused got the rectification work dcne or the money was subsequently disbursed fer the purpose for \1/hich it had been entrusted. According to explana-tion 1 to section 403 Indian Penal Code dishonest misappropriation for time only is "misappropriation" within the meaning of that section. [515 DJ

(iii) It is well established that cognizance of case has, in fact, been tuken by the court on police report following inve11tigation conducted in bt..,;,ach of provisions of section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the

investigation can be shown to have brought about miscarrjage of justice. The reason for the above dictum is that an illegality cOmmitted during the course of investigation does not effect the competence and juf'isdiction of the Court to· try .the ae¢used·. Where, tmrefore, the trial of the case has proceeded to terfnination, the invalidity of the preceding investiga-tion would not vitiate the conviction of the accused as !T.lsult of the trial Ullles's the illegality in the investiption has caused prejudic,e to the JI accused. Since there has been no miscafriage of justice in the p~nt case because of the alleged non-compliance with section SA the conviction of the appellants cannot be set aside on that score. [SIS HJ

.. N. R.;shbu!f and Inder Singh v. The State of Delhi, {1955] I S.C.R. li50, referred to.

(1v) Sub-section (i) of the Bombay Land Improvement Schemes Act 1942 has plainly no application as it relates to 3nything done in the good faith. It cannot also be said that the acts of the appellants in preparing false documents and committing criminal bre3ch of trust as also the act of criminal misconduct were done "under" the Bombay Land Improve~ ment Schen»s Act within the meanini of sub-section (2). The sub-section has rio. application wher.e something is done not under the Act even· though it has been done by public servant who has been •!Dtrusted with the duties of carrying improvement sche~s under this Act. The iritpugned acts of tDe appellants W'..lS not in discharge of their duties under the Act but in obvious breach and flagrant dis!regard: of their duties. !516 G-517 1 · CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 105 of 1969. Appeal by special leave from the judgment and order dated March 27, 1969 of the Bombay High Court in Criminal Appeals Nos. 53 aind 4S of 1968. -V. S. Kotwal, A. G. Ratnaparkhi and Rajiv Shah, for the appellani.

R. M. Mehta aw B. D. Sharma, for the respondent.

The Judgment of the Court was delivered by

Khanna, J. This is an appeal by special leave by Khandu Sonu Dhobi and Bhikanrao Rambhau Khaimar against the judg-ment of the Bombay High Court affinning on appeal the convic-tion of the appellants under section 218 read with sei;tion 34, section 4 77 read with . section 34 and section 409 read' with sec-G tion 34 of Indian Penal Code as well as under section. S(2) read . with section 5 ( 1 )( d) of the Prevention of Corruption Act. . &inte'nee of rigorous imprisonment for period of on~ year and fine of Rs. 200 or in default fu!1!her rigorous imprisonment for period of two months has been awarded on 'each count to the appellants. ·· The substantive sentences have ben ordered to run concurrently.

Dhobi appellant No. 1 was an agricultural assistant '.111d was '

\Working under Khaimar appellant No. 2 who was

supervisor in the soil conservation section of the Government of Maharashtra. Dhobi was incharge of the work relating to Bundh in block No. 13 of village Asane in Taluka Mandurbar. The above block comprisei; agricultural lands bearing survey Nos. 8, 17, 18, 19 and 32 measuring 90 acres. The Bundhs were being constructed since the year 1962. Rectification work in respect o( thos.e Bundhs at cost of Rs. ~~9 .07 had to be got done by Dhob1 appellant under the superv1s10n of Khairnar appel-lant. The Government sanctioned an amount of Rs. 4 779 in· connection with the construction of the Bundhs. An advance amount of Rs. 5000 was received by Khairnar accused on March 2, 1966 in that connection. Work of lhe value of Rs. 4400 was done but that relating to rectification work was not done. Accord-ing to the rules of the soil conservation section, lhe Government spent the money in the first instance ·and after the report of the completion of work was received, the expenses were recovered from the landowners for whose benefit the work was done. On March 11, 1966 Khairnar made entries in measurement book Ex. 27 showing that he had checked. 28 payments and certified the same. Khaim.ar accused also stated in the entry that he. had passed the measuremenis and paid Rs. 369 .07. Paysheets Ex. 64 were prepared by Dhobi acc)ISed and he obtained the thumb impressions and signatures of the labourers on the paysheets. Khairnar made his initials below the thumb impressions in the paysheets. On the last page of the paysheets, Khairnar signed certificate according to which he had paid Rs. 3~9 .O? ito P_W 10 Jagan Trimbak who used to do the labour work. Final bill Ex. 28 was also prepared on that day by the accused and the signa· · ture of Jagan Trimbak was obtained on the sa,me. The bill was got signed from PW 7 Ziparu Tukaram and another person as attesting witnesses. The bill was signed thereafter by Khairnar. Debit entry Ex. 32 of Rs. 369.07 was made by Khairnar accused .. in the cash book. He also prepared work abstract Ex. 29 on r April 16, 1966 and sent it to the sub-divisional soil conservation officer Nandurbar showing an expenditure of Rs. 369.07. The case of the prosecution was that the measurement book Ex. 27, paysheets Ex. 64, final bill Ex. 28 and cash book entry Ex. 32 were false documents and were fabricated by the accused without dooig any recification work on the Bundh. The accused thds committed criminal breach of trust in respect of the amount of Rs. 369.07 in furtherance of their common intention to mis-appropriate government property. AccordiJig further to the prosecution case, the landowners in block No. 13 came to know of J:he above acts of the. accused and they complained about it to Sarpanch Tanku Bhagwan (PW 12). Tanku sent telegram on April 12, 1966 to the superintending agricultural officer, Bombay division, N asik in this connection. A. 00py of the telegram was

K, s. DHOBI v. MAHARASHTRA (Khanna, I.)

thereafter sent by the superintending agricultural officer to divi- , sional soil conservation officer D.S.D. Ghate (PW 1) for neces- : sary action as Wajl as for enquiry and report. Chate PW went to village Asane on May ·2, 1966 and inspected block No. 13. He found th:i,t entries had lieen made about the payment of Rs. 369 .07 in the measurement book and cash book even though no rtictifica-B tion w6rk had been done. Chate srubmitted his rep0rt on ,May , 6, 1966 for proceeding departmentally against the accused. On · rece,ipt of the above report, the superintending agricultural officer directed P. R. Inamdar (PW 11 ) , deputy director of agricultural engineering, to go to Asane village and submit his report after perSonally verifying the facts. Inamdar went with Ghate to block No. 13 in Asane village on May 11, 1966. Both Inamdar ·and Ghate found that no rectification work had been done. They did not find even single pit in the l2nds in that block although, according to measurement book, 83 pits had been recently dug. Inamdar and Ghate also met the Sarpanch and other landowners of Asane village. Report dated May 18, 1966 was thereafter

submitted by Inamdar affirming those facts.

Sarpanch Tanku sent complaint Ex. 84, in the meanwhile, on April 30, 1!166 to the director of anti-corruption branch Maha-rashtra State stating that the accused had prepared false bill for Rs. 369.07 without doing any work and that they had mis-E appropriated that amount. It was also stated that attempts were being made to shield the accused. The director of anti-corrup-tion sent copy of that application to Sub Inspector K. G. Patil (PW 13) who was then attached to Dhulia office of the anti-corruption branch. Sub Inspector Patil made local enquiry and took into possession the measurement book, paysheets and cash book. The director of anti-corruption branch directed Patil to register case and investigate ino the matter. Patil went to Nasik and recorded statement Ex. 79 of Inamdar PW on November 7, 1966. The statement was .then sent to Nandurbar Taluka police station. case was registered on the basis of that statement at the police .station on November 8, 1966. On Nov-ember 12, 1966 sub Inspector Patil applied for permission under section SA of the Prevention of Corruption Act of judicial magistrate I st class to investigate the offence. The permission was granted by the judicial magistrate 1st class Nandurbar on the same day. Patil thereafter recorded statements of number or persons. Patil was subsequently transferred and the case was investigated by his successors Mahamuni and Kulkarru who also obtained the requisite permission. Sanction Ex. 97 for the prose-cution of the two accused was granted under section. 6 of the Prevention of Corruption Act by the superintending agricultural officer Bombay division, Nasik on May 18, 1967.

'The two accused in their statements admitted that the work of the value of Rs. 369.07 was .not done till March 11, 1966 although it was so stated in the various documents by them. The accused also admitted that no amounts were paid to any of the labourers mentioned in the paysheelSI although signatures and thumb imprei;sions of the labourers had been obtained on the paysheets on March 11, 1966. According to the 11ccµsed, they had prepared the various documents in accordance with the ins-tructions of Ghate PW who was insisting in March 1966, and even.earlier, that completion report relating to block No. 13 be sent as the entire amount spent on that !;>lock since 1962 could not be recovered for want of completion report. Khairnar accused added that rectification work Jiad been done between May 13, 1966 and May 16, 1966 and the amount of Rs. 369.07 was thereafter disbursed on May 16, 1966.The learned special judge held that the amount of Rs. 369.07 had not been paid by the two accused to the labourers. No work, it was found, had been done and the different douments prepared by the accused in this connection were false even on their own admissions. The explanation furnished by the accused that they prepared false documents ~t the instance of Ghate and got work dQne thereafter was not accepted. Objection was raised on behalf of the accusecl that the inves\igation of the case was illegal and that prosecution was barred by time under the pro-visions of section 23 of the Land Improvement Schemes Act, 1942. These objections were repelled. Ti).e accused were accordingly convicted and sentenced as above.

On appeal the High Court affirmed the findings of the learned special judge.

We have heard Mr. Kotwal on behalf of the appellants and are of the opinion that there is no merit in the appeal. It has not been disrupted before us that the ' accused made various entries and prepared documents on March 11, 1966 about their having got .the rectification work done as well as about the pay-ment of Rs. 369.07 on that account. It has also not been dis· puted before us that the amount of Rs. 369.07 was not paid to · any one by the accused in March or April 1966. According to Ghate (PW 1 ) and Inamdar (PW 11 ) , no work relating to the rectification of the Bundh was found to have been done till May 11, 1966 when they visited the site in question .• Inamdar's evi-dence also shows that according to the measurement book pre-pared by the accused, 83 pits ha~ been recently dug ~though the witness could not find smgle pit on· the spot. In view of the above, we find no cogent ground to disagree with the trial court and the High Court that the accused had prepared false docu-ments and had also committed criminal breach of trust In respect

According to

of the amount of Rs. 369.07. We also agree with the trial court and the High c_ourt that the accused were in the discharge of · their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act.

~fr. Kotwal has argued that the accused completed the recti-B fical!on work after May 11, 1966. There is, however, no direct evidence as may show that the rectification work was completed after May 11, 1966. Even if it may be assumed that the accus-ed completed the rectification work in May 1966, that fact, in our opinion, would not absolve the accused of their criminal liability. The charge against the accused relates to preparation of false documents because even though no work had been done till March 11, 1966 and no amount had been dl:sbursed, they prepared docu-ments showing the doing of that w'}rk and the payment of that amount. It is no answer to that charge that after the matter had been reported to the higher auhorities, the accused in the month of May 1966 got the rectification work done. It is also no ans-wer to charge of criminal misappropriation that the money was subsequently, after the matter had been reported to the high authorities, disbursed for the purpose for which it had been en-trusted. According to explanation 1 .to section 403 Indian Penal Code, dishonest misappropriation for time only is "mis-appropriation" within the meaning of that section.

Mr. Kotwal has also submitted .that the accused expressed willingness to complete the work after the matter had been reported to the higher authorities. This submission, even if accepted, would not exonerate the accused because the willingness after the matter had been reported to the higher authorities could not . efface or undo the offence earlier committed by the accused. I

Argument has .then been advanced on behalf of the appellants that Sub Inspector Patil did not make investigation in the case in . accordance with law. It is urged that permission to make inves-tigation was granted to Sub Inspector Patil on November 12, 1966 and, as such, he was not authorised to make before that date the enquiry which led to the registration of the case as that enquiry partook of the character of investigation. Nothing has been brought to our notice as to how an enquiry before the regis-tration of case can be held to be investigation. The matter, however, need not be dilated upon and it is not necessary to express any final opinion in the matter because we find that there is no material on the record as may show that the accused were prejudiced because of the alleged non-compliance with the pro-H visions of section SA of the Prevention of Corruption Act. It is well established that where cognizance of case has, in fact, been taken by the court on police report following investigation·

[1972] 3 S.C.R.

c(Jnducted !nbreaclf of prpvisions of .section 5A of the Prevention Qf Corruption Act;. the result of the trial cannot be set aside un-~ the illega).ity in the .investigati6n can be shown to h.ave brought about iniscarriag!l of justice. The underlying reason for the above dictum is that an illegality committed in the course ' of investigation does not• afiect the competence and jurisdiction of the court th ·try the accuSed. Where, therefore, the trial of the case' has proceeded to 'tennination, .. the. invalidity of the pro-ceeding investiglitiO)i: wo\Jld not vitiate the conviction. of the accus-. ed as result of' ihe trial unless the illegalityin the investigation has caused prejtii!iCtHo the accused (see H. N. Rishbud and lnder Singh'v. The State Of 1Jelhi(1)]; Since·there has been no miscarriage of jiisti~e ·In the present case because of the alleged non-cotnplianee· with section 5A, the convicti6n of the accused-appellants caruiot be ·set· aside on that score. For the same rea-son, we ru:e unable to accede to the contention of Mr. Kotwal that the conviction of the accused sho\Jld be set aside because permission under section 5A of the Prevention of Corruption Act !O SI Patil for investigation of the offence was granted in · casual manner and without the existence of sufficient reasons.

Lastly, it has been argued by Mr. Kotwal that th.e prosecution of the accused was· barred by time under section 23 of the Bom-bay Land Improvement Schemes Act, 1942. The section reads as under:

" ( 1) No suit, prosecution or other legal proceeding shall be .instituted against any public servant or person duly authorised under this Act in respect of anything in good faith ·Cione or intended to be done under this Act or the rules made thereunder.

( 2) No suit or orosecution shall be instituted against any pul:>lic servant or person duly authorised under this. Act in respect of anything done or intended to be done, unde~ this ,Act, unless the suit or prosecu-tion has .been instituted. within six months from the date of the act complained of."

Sub-seetion ( 1) of the section has plainly no application as it rel!ltes to l!!lytlritlg done. in. g\)Od faith. According to Bomb~y General Clalllies Act, .a thing shall. be deemed .to be done m g~ faith \Vhere itis in fact done ,hones~y, whether it is d?Ile negligently or not. The appellants admittedly were not actmg honestly when they prepared the false documents in question and . showed disbursement of Rs. 369.07 on March 11, 1966. Mr. J{otwal, however, relies on sub-section ( 2) of section 23 and

(I) [1955] I s.c.R. 1150. '

K. s. DHOBI v. MAHARASHTRA (Khanna, J.)

submits that the prosecution could be instituted against the appel-lants only within six months from March 11, 1966. As the charge sheet was submitted. long after the expiry of six months, the case against t!;te accused-appellants, according to the counsel, was barred by time. This contention, in our opinion, is devoid of force. Sub-section ( 2) refers to suit or prosecution against public servant or person duly authorised under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act. It cannot be said that the acts of the accused-appellants in preparing false documents and in committ. ing criminal breach of truSt in respect of the amount of Rs. 369.07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act. Sub-section (2) of section 23 deals with anything done or intended to be done under the above mentioned Act by public servant or person duly authorised under the Act. It has no application where some-thing is done not under the Act even though it has been done by public servant who th.as been entrusted with duties of carrying out improvement schemes under the above mentioned Act. The impugned acts of the appellants in the present case were not in discharge of thefr duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties. Not only they did no rectification work for the Bundh which was part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification.

Prayer has also been made for the reduction of the sentence, but we see no cogent ground. to interfere with . the same. The appeal consequently fails and is dismissed.

The

Appeal dismissed.