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TMI Blog1979 (9) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) (4) 1. Abdulla Mohammed Pagarkar (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of the work exceeded rupees one lakh and the tender was a solitary one, the Lieut Governor forwarded it to the Central Government for approval and did not accept a suggestion made by the Secretary to the Industries and Labour Department (to be hereinafter called I.L.D.) that the work be started immediately in anticipation of the said approval. Nevertheless A-1 entrusted the work to A-2 who started executing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening the Kumbarjua canal needed urgent attention, tenders for its execution were called and A-2 was found to be the only tenderer. A-1 was assured by the Secretary, I.L.D., that the necessary order approving the tender would soon be forthcoming and that the execution of the work should be taken in hand immediately in anticipation of orders. The Assistant Marine Surveyor, Shri D'Souza (P.W. 4) was instructed 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'Sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and under his directions at a stretch after the completion of the work and on the basis of exhibit P-47 which A-2 had maintained. Register exhibit P-37 was similarly prepared on the basis of written statements containing details of labour employed and submitted by A-2. 6. The learned Special Judge further arrived at the findings given below from the oral evidence produced before 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been executed through A-2 working as a contractor. On the other hand those bills contained the number of labourers engaged for the work and the amounts claimed pertained to their wages at the sanctioned rates. In fact no bill contains even a mention of the fact that any contractor was executing the work or that A-2 was anywhere in the picture. Add to the fact 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sites where dredging was in progress during the period in question varied, according to those witnesses, from 80 to 200. He further noted the fact that in the statement recorded under Section 342 of the Code of Criminal Procedure even A-1 had taken the stand that the number of labourers found by him working at the canal, whenever he visited the site, varied between 200 and 250. He then proceeded to quantify the amount of money paid to the labourers at Rs. 32,287.75 with the following observations: From the receipts produced by the prosecution witnesses Nos. 7, 8, 9, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is precisely what the Special Judge appears to have done while observing that it was for A-2 to prove that he had spent amounts besides those proved by the prosecution which A-2 had failed to do. 13. The finding of the learned Judicial Commissioner on the point suffers from a similar defect. After examining the oral evidence in relation to it he observed: The evidence of these witnesses clearly indicated that the average total number of labourers working in the canal per day were 100 to 160. Taking an average of 123 labourers per day, out of which, on the 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 4,73,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said anything to show that any payments were recorded therein, which are other than the payments shown in Exs. P-79, 80 and 82. A-2 did not examine any workers who worked in the canal and who, according to him, had received any payments which were not receipted for. It is evident from Exs. P-79 to P. 82 that some moneys spent in the work were receipted and accounted for. Considering all these facts, the question that A-2 might have paid any amounts without receiving receipts can be ruled out. Exs. P-79 to P-82 together with the other evidence on record support 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 loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the figure of 5858 cubic metres resulting from his estimate. Also situation may have occurred and, for aught one knows to a considerable extent, between the completion of the work and the point of time when PW-6 took the soundings in 1969. Allowance has also to be made for the state of the tide when the surveys were undertaken. As pointed out by the witness himself, the soundings of 1969 were not taken at the lowest tide. As it is, the witness had to make the following admission when he was asked if he could say on the basis of his two surveys whether any dredging 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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