TaxTMI 
TaxTMI 
2005 (10) TMI 590
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Sections 13(1)(c) and (d) read with Section 13(2)of the Prevention of Corruption Act, 1988 and Sections 409, 477-A and 120-B of the Indian Penal Code, 1860 (hereinafter I.P.C.) on the allegation that they had misappropriated the gold utilized for making a Golaka for Mekkavu Bhagavathy of Chottanikkara Temple. The appellant was convicted for R.I. for two years and a fine of Rs. 10,000 and R.I. for two years and a fine of Rs. 5000 and in default R.I. for three months under Sections 13(1) (c) and (d) of the Act respectively, along with Section 13(2) and R.I. of one year under Sections 403 IPC and 477-A I.P.C., each. No separate sentence was awarded under Section 120B of the IPC. 2. The prosecution case, in brief, is that Chottanikkara Bhagvathy Temple at Chottanikkara is administered by Cochin Devaswom Board. Ornament "Golaka" was used in the temple on certain special ceremonial occasions and the other "Golaka" was used day-to-day. The Temple Board found that Golaka, which was being used throughout the year, was rendered unfit for adorning the deity and, therefore, a division was taken by the Board on 13.4.82 to make a new Golaka and for the said purpose, sanction was accorded to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e bars into sheets, cracks appeared on the side of the bar due to impurity of the gold. On 15.9.88, the accused-appellant had sent a report to the Board and sought permission to take the gold bar to Coimbatore and vide resolution dated 20.9.88, the Board authorized A-3 to take the gold bar to Coimbatore for converting it into gold sheets and accordingly the gold bar was taken to Coimbatore. 3. When the gold bar was melted for converting it into sheets, the quantity of pure gold was found to be only 919.500 Gm. of copper was added to it in order to conform the same to the prescribed Government standard, and the gold was converted into gold sheets, and these sheets were used for making the two hands of the Golaka, wires, pinheads, nails, and for soldering purposes. While making the Golaka the gold was several times melted and converted into bars and, thereafter, to sheets. The total weight of the gold utilized for making the Golaka was 4.499 Kg. which included the gold supplied from 150 pieces of ornaments and coins. After completion of the work, it was found that the weight of the ornament Golaka was 4.209 kg. Since 42 Gm. of copper was used for making the Golaka, the total wastage....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by illegal means, such an agreement is designed a criminal conspiracy. 10. In Major E.G. Barsay v. State of Bombay, AIR (1961) SC 1762, Subba Rao J., speaking for the Court has said: "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts." 11. In State through Superintendent of Police, CBI/SIT v. Nalini and Ors., JT (1999) 4 SC 106 it is observed by SSM Quadri J. at paragraph 677: "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itute conspiracy. The offence of conspiracy shall continue till the termination of agreement. 13. The suspicion can not take the place of a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. v. State of Maharashtra, AIR (1971) SC 885, that: ". in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors constitute relevant material." 14. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of-course, each one of the circumstance should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the gold bar prepared, which was detected when it was converted into gold sheet. Shortage of pure gold was on account of impurity in the gold bar which was prepared when the accused-appellant had not even joined the services of the Board. The High Court has also recorded a finding in paragraph 21 onwards of the judgment that the bond gold weighing 2.469 Kg. and Nadavaravu (offerings) of 1 Kg. of gold was handed over to A-3, which was in the form of ornaments and coins. The purity of bond gold was ascertained and certified in Exh.P.1 but the purity of the Nadavaravu, was not ascertained at all and no satisfactory explanation, whatsoever, is offered by any witness or the prosecution as to how and why 1 Kg. of gold was handed over to A-3 and permitted to be used in making the Golaka without ascertaining its purity, as was done in the case of bond gold. The High Court further held that the entire gold was kept in the double locker system under the control of A-3 at Chottanikkara and A-3 was keeping both the keys of the double locker with him. There is convincing evidence to show that the entire gold was kept in the exclusive custody of A-3. A-3 used to release the gold necessary for ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be inferred. On the findings itself arrived at by the High Court, we cannot hold that the accused-appellant was the conspirator to misappropriate the gold, with A-3. 18. On scrutiny of the entire facts led by the prosecution, the charge of conspiracy cannot stand as there is no link to show that the conspirators agreed to misappropriate the gold while the gold ornament was being prepared. 19. The accused-appellant was convicted under Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. To constitute an offence under clause (c) of Section 13(1) of the Act, it is necessary for the prosecution to prove that the accused has dishonestly or fraudulently misappropriated any property entrusted to him or under his control as a public servant or allows any other person to do so or converts that property for his own use. The entrustment of the property or the control of the property is a necessary ingredient of Section 13(1)(c). On the findings arrived at by the High Court, it is obvious that the property was neither entrusted nor was under the control of the accused-appellant and thus the accused-appellant could not have been convicted under the Section. 20. To attract the....