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2005 (10) TMI 590 - SC - Indian LawsMisappropriation of the gold utilized for making Ornament Golaka for Mekkavu Bhagavathy of Chottanikkara Temple - Offence punishable u/s 13(1)(c) and (d) r/w Section 13(2)of the Prevention of Corruption Act, 1988 and and 403 IPC and 477-A I.P.C. - HELD THAT - From the findings arrived at by the High Court that it was A-3 who was entrusted with the gold by the Devaswom Board, and who was looking after the affairs of making the ornament Golaka, simply because accused-appellant had accompanied him to Coimbatore, it cannot be inferred that there was an agreement entered into between them to misappropriate the gold. To constitute a conspiracy, agreement between two or more persons for doing an illegal act, or an act by illegal means, is a sine qua non. Although the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence. Whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn. Even if we hold that at some point of time, the accused-appellant had some knowledge or suspicion about A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in the absence of some positive evidence indicating agreement to that effect, conspiracy could not 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. 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. 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. To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act, public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. Therefore, for convicting a person under the provisions of Section 13(1)(d) of the Prevention of Corruption Act 1988, there must be evidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant obtained for himself, or for any person, or obtain for any person, any valuable thing, or pecuniary advantage without any public interest. What we find in the present case is that there is no evidence on record to prove these facts that the accused-appellant had obtained for himself or for any other person any valuable thing or pecuniary advantage. We may clarify that the charge of conspiracy being not proved u/s 120B I.P.C., the accused appellant could not be held responsible for the act done by A-3. The prosecution has failed to prove that he has obtained for himself or for any other person any valuable thing or pecuniary advantage. Similarly, we do not find any evidence on record to convict accused-appellant under Sections 403, 477-A I.P.C. Thus, the appeal is allowed. The judgment of the High Court is set aside.
Issues Involved:
1. Conviction under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. Conviction under Sections 409, 477-A, and 120-B of the Indian Penal Code, 1860. 3. Allegation of conspiracy to misappropriate gold. 4. Entrustment and control of property. 5. Proof of obtaining valuable thing or pecuniary advantage by corrupt or illegal means. Issue-wise Detailed Analysis: 1. Conviction under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988: The appellant was convicted for R.I. for two years and fines under Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988, along with Section 13(2). However, the Supreme Court found that the property was neither entrusted to nor under the control of the appellant, as required under Section 13(1)(c). Similarly, there was no evidence that the appellant obtained any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant, as required under Section 13(1)(d). 2. Conviction under Sections 409, 477-A, and 120-B of the Indian Penal Code, 1860: The appellant was also convicted under Sections 403 and 477-A IPC, with no separate sentence awarded under Section 120-B IPC. The Supreme Court found no evidence to support the conviction under these sections. The charges could not stand as there was no link to show that the conspirators agreed to misappropriate the gold while the gold ornament was being prepared. 3. Allegation of conspiracy to misappropriate gold: The High Court inferred that the appellant conspired with A-3 to misappropriate the gold. The Supreme Court clarified that to constitute a conspiracy, a meeting of minds for doing an illegal act or an act by illegal means is necessary. The Court found no evidence of an agreement between the appellant and A-3 to misappropriate the gold. The High Court missed the fact that the appellant reported the impurity of the gold and sought permission to take it to Coimbatore. The shortage of gold was due to impurity before the appellant joined the Board, and there was no evidence of conspiracy. 4. Entrustment and control of property: The Supreme Court noted that the gold was entrusted to A-3, who was in exclusive custody of the gold. The appellant, being the Assistant Commissioner, had no control over the gold. The High Court's findings established that A-3 was responsible for the gold, and the appellant had no role in its custody or misappropriation. 5. Proof of obtaining valuable thing or pecuniary advantage by corrupt or illegal means: The Supreme Court found no evidence that the appellant obtained any valuable thing or pecuniary advantage for himself or any other person. The charge of conspiracy under Section 120B IPC was not proved, and thus the appellant could not be held responsible for the acts done by A-3. The prosecution failed to prove that the appellant obtained any valuable thing or pecuniary advantage by corrupt or illegal means. Conclusion: The Supreme Court allowed the appeal, setting aside the judgment of the High Court. The appellant's conviction under the Prevention of Corruption Act and the Indian Penal Code was overturned due to lack of evidence proving conspiracy, entrustment, control of property, or obtaining any valuable thing or pecuniary advantage by corrupt or illegal means.
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