TaxTMI 
TaxTMI 
1979 (9) TMI 212
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....r (a) Section 120B (1) read with Sections 420, 468 and 471 of the Indian Penal Code as also Section 5 (1) (d) of the Prevention of Corruption Act. Rigorous imprisonment for two years and a fine of Rs. 500/-, the sentence in default of payment of fine being rigorous imprisonment for one month. (b) Sections 420 and 468 and Section 109 read with Sections 468 and 471 of the Indian Penal Code. Rigorous imprisonment for two years and a fine of Rs. 500/-, the sentence in default of payment of fine being rigorous imprisonment for one month. (c) Section 5 (S) read with Section 5(1)(d) of the Prevention of Corruption Act. Rigorous imprisonment for two years and a fine of rupees two lakhs, the sentence in default of payment of fine being rigorous imprisonment for eighteen months. Moreshwar Hari Mahatme (a) Section 120B (1) read with Sections 420, 468, 471 and 100 of the Indian Penal Code as well as Section 5 (l)(d) of the Prevention of Corruption Act. Rigorous imprisonment for two years and a fine of Rs. 500/- the sentence in default of payment of fine being rigorous imprisonment for one month. ....
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....ing it on March 15, 1966. No approval of the tender was received from the Government of India who directed, however, that the work be carried out departmentally. Through a letter dated 16th of May, 1966 (Exhibit P-7), the said Secretary informed A-1 that as the work was to be executed departmentally the conditions laid down in Rules 133 and 141 of the General Financial Rules (G.F.R.) had to be fulfilled and directed him to obtain the concurrence of the Public Works Department (P.W.D. for short) for the various rates mentioned in a bill which A-1 had submitted earlier for payment in connection with the work Such concurrence was obtained by A-1 on May 26, 1966, to payment of daily wages at the rates of Rs. 4.50 and Rs. 3.00 per head for male and female labourers respectively although the prevailing P.W.D. rates were Rs. 3.50 and Rs. 2.00 respectively (Exhibit F-9). The two Appellants entered into a conspiracy to cheat the Government in relation to the execution of the work A-2 would submit occasionally to A-1 hand-written statements of the work done each day, specifying therein the details of quantity in cubic metres of the mud and salt excavated, the number (without the names)....
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....ed to personally supervise the work which was started on the 15th of March, 1966. By the end of April, 1966, A-1 was told that the work should be executed departmentally by engaging labour and not through A-2. However that was not possible under the circumstances and the work proceeded as before. Shri D'Souza (P.W. 4) used to check the volume and the kind of material excavated daily and to make entries in his notebook accordingly. When objection was taken by the Directorate of Accounts at the end of the financial year to the passing of the bills on the ground that muster rolls were not being maintained, A-1 made enquiries from Shri D'Souza (P.W. 4) and learnt that A-2 had maintained a gang-wise muster roll on the basis of which documents were prepared by Shri D'Souza (P.W. 4) under the orders of A-1 and were submitted to the I.L.D. The work was executed in conformity with the bills submitted by A-1 to the Government. In any case, A-1 acted in good faith and if any of the bills did not conform to facts the reason must be that he had been cheated by A-2. 4. The stand taken by A-2 in defence was more or less the same. He averred however that the bills were prepared not ....
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....re him: (i) A-2 was fully aware that his tender had not been accepted by the Government and that A-1 had been directed to carry out the work departmentally. (ii) The amount really spent by A-2 in execution of the work was no more than Rs. 32,287.75 against which he maneuvered , with the assistance of A-1, to receive a sum of Rs. 4,73,537.50 from the Government. (iii) None of the bills could have been sanctioned for payment by the Accounts Department but for the certificate appended by A-1 to each of them that the work was being carried out departmentally under Rule 141 of the G. F. R. 7. From the above findings the learned Special Judge concluded that the two accused had entered into a conspiracy to cheat the Government in the matter of the execution of the work by presenting inflated bills and receiving against them far greater amounts than had actually been spent, that muster rolls ultimately produced to support the bills contained false averments and were forged documents, and that A-1 was fully aware that the certificate regarding the work being carried out departmentally in accordance with Rule 141 of the G. F. R. and appended to each of the bills....
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.... that A-2 did not submit any signed bills or statements either to A-1 or to the I. L. D. or, for that matter, to the Directorate of Accounts. In so far as correspondence between A-1 on the one hand and Government departments on the other is concerned, the name of A-2 and his connection with the execution of the work remained conspicuous by its absence except insofar as the tender submitted by him was concerned and that tender, as already stated, never became effective by its acceptance by any department or office of the Government, The position which the two Appellants therefore took in no uncertain terms throughout the period during which the work was executed was that it was being handled directly by the Department and not through any contractor. Any plea based on its execution through A-2 as a contractor must therefore be repelled. 10. A more serious argument put forward in support of the appeals was that the work actually executed had not really been shown to be worth anything less than the amount paid for it to A-2, i. e., Rs. 4,73,537.50. The attack on the findings to the contrary arrived at by the two courts below consists of the submission that they are based really on m....
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.... 10, 14, 15, 16, 17, 18, 19, 20 and 21 it is seen that the amount paid by A-2 to the labourers and country craft owners is to the tune of Rs. 32,287.75. There was no suggestion of the Advocate of A-2 to the Investigation Officer that besides, the documents produced by A-2, there were other receipts which were not attached by the Investigating Officer and produced by the prosecution. The only contention of A-2 appears to be that, besides the amounts proved by the receipts above, there were other amounts paid to the labourers for which receipts were not collected. All the prosecution witnesses above had denied the suggestion of A-2 that, besides the amounts for which they have passed receipts, there were other amounts received by them for which they have not passed the receipts. Only P. W. 14 and P. W. 16 in their cross examination, had admitted that besides the amounts for which they had issued receipts, they were also paid for some work on salary basis for which they were not issued receipts. These amounts, however, could not, according to me, go to thousands of rupees. Any how, it was for A-2 to prove that he had spent amounts besides those proved by the prosecution which A-2 had ....
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....basis of the statements furnished by A-2, less than 12000 would be males at the rate of Rs. 4.50 and a little more than 13000 females at the rate of Rs. 3.50, we have roughly a total sum of Rs. 80,000/- spent on labour. This more or less tallies with the amount mentioned in the vouchers. Shri S.V. Naik has on behalf of A-2 suggested in cross-examination of these witnesses that the average number of workers working in the canal per day was 350 to 400. Even if we accept this figure the total amount payable on account of the labourers employed would be Rs. 3,00,000.00, but the accused have collected a sum of Rupees 4,73,537.50. He differed with the learned Special Judge on the point of the value of the work actually done and in that behalf he has reasoned thus in another part of the judgment: No account books or receipts were produced by A-1 or A-2 to the Government in support of the contingent bills and of the claims for the amounts which they received. No account books were produced or shown by any one of them. It is not the case of A-2 that he did not receive receipts for the payments made to the labourers, nor is it his case that he did not have any account books regar....
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....t the version of the prosecution that the total amount of work done by the accused did not exceed Rs. 76,248.43. We may at once state that there is no evidence on the record to indicate that the books seized from the premises of A-2 contained entries about all the payments made by him to the labour employed for the execution of the work; and that is a fact the correctness of which we see no reason to presume. The danger of assumptions of the type made by the two courts below is highlighted by the disparity in the figures which they reached in relation to the amount of the value above mentioned. Each had his own way of looking at it; but then the grievous error into which they fell was that they thought that it was for the accused to show that the number of labourers employed conformed to that shown for each day in the summaries attached to the bills. And that is an approach not sanctioned by law. 14. In coming to the finding under consideration the learned Judicial Commissioner also took into consideration the deposition of Lasli Rupert Donaud (P. W. 6) who surveyed the canal in September, 1965 and again in May, 1969, i. e., both before and after the work had been executed an....
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....ging was done in between: If some dredging is done during the year 66 and 67 in the canal and the soundings are taken in 1969 if it is almost identical to the soundings of 1965, I would not be able to say whether dredging was done in the canal or not.... We consider it very unsafe, in this state of the evidence, to agree with the learned Judicial Commissioner that the disparity between the estimate arrived at by PW-6 and the volume of material claimed to have been dredged proved "that the documents on which moneys were collected by the accused are false". It appears to us that in coming to this conclusion, he was also influenced by the factors which raised a strong suspicion against the Appellants. 15. learned Counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items (a) to (e) in paragraph 5 and items (i) and (iii) in paragraph 6 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be re-stated here, that they were correctly arrived at. But those findings merely make ....