{"id":105206,"date":"1976-12-17T00:00:00","date_gmt":"1976-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-k-kale-vs-state-of-maharashtra-on-17-december-1976"},"modified":"2017-07-16T04:18:35","modified_gmt":"2017-07-15T22:48:35","slug":"s-k-kale-vs-state-of-maharashtra-on-17-december-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-k-kale-vs-state-of-maharashtra-on-17-december-1976","title":{"rendered":"S.K. Kale vs State Of Maharashtra on 17 December, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.K. Kale vs State Of Maharashtra on 17 December, 1976<\/div>\n
Equivalent citations: 1977 AIR 822, \t\t 1977 SCR (2) 533<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nS.K. KALE\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT17\/12\/1976\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nBHAGWATI, P.N.\n\nCITATION:\n 1977 AIR  822\t\t  1977 SCR  (2) 533\n 1977 SCC  (2) 394\n CITATOR INFO :\n R\t    1979 SC 826\t (20,21)\n\n\nACT:\n\t      Prevention  of Corruption Act, 1947, s. 5(1)(d),\tonus\n\tprobandi,  whether to be discharged by the accused.\n\t      Constitution of India,  Article 136,  Re-appraisal  of\n\tevidence under,\t when called for.\n\n\n\nHEADNOTE:\n\t    The\t appellant was posted as the Local Purchase  Officer\n\tat the Army Ordnance Depot in Poona district.  In connection\n\twith  the purchase of some engineering tools,  charges\twere\n\tbrought\t against him under s. 5(1)(d) read with s.  5(2)  of\n\tthe Prevention of Corruption Act, for having procured  pecu-\n\tniary  benefit\tfor a certain contractor by  corrupt  means,\n\tthereby\t causing wrongful loss to the army department.\t The\n\tTrial Court convicted the appellant, and in appeal the\tHigh\n\tCourt  confirmed the conviction.  The Supreme Court  granted\n\thim Special Leave to appeal under Art. 136 of the  Constitu-\n\ttion, and allowing the appeal,\n\t    HELD:  1.  Both the courts below had  proceeded  on\t the\n\tfooting that it was for the accused to prove the ingredients\n\tof s. 5(1)(d) of the Act.  This approach was wrong.  It\t was\n\tfor  the prosecution to prove affirmatively that the  appel-\n\tlant by corrupt or illegal means or by abusing his  position\n\tobtained any pecuniary advantage for some other person. [536\n\tC-D]\n\t    2.\tNormally this Court in special leave against a\tcon-\n\tcurrent judgment of the High Court and the trial Court\tdoes\n\tnot re-appraise the evidence, but here we find that both the\n\tcourts\tbelow have drawn wrong inferences from proved  facts\n\tand have made a completely wrong approach to the whole\tcase\n\tby misplacing the onus of proof which lay on the prosecution\n\ton the accused and presuming that the accused had a  dishon-\n\test intention.\t[536 B-C, H]\n\t    Narayanan Nambiar v. State of Kerala<\/a> [1963] Supp. 2\t SCR\n\t724; 730-731, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
\t      CRIMINAL\tAPPELLATE JURISDICTION: Criminal Appeal\t No.
\n\t301 of 1971.\n<\/p>\n
\t    (Appeal  by\t Special Leave from the Judgment  and  Order
\n\tdated  the 15th\/l6th June 1971 of the Bombay High  Court  in
\n\tCriminal Appeal No. 1405 of 1969).\n<\/p>\n
\tP.H. Parekh and Miss Manju Jatley, for the appellant..
\n\tH.R. Khanna and M.N. Shroff, for respondent.
\n\tThe Judgment of the Court was delivered by
\n\t    FAZAL  ALI, J.—Corruption and nepotism is\t so  rampant
\n\tin   our  society of to-day, and more  particularly  in\t the
\n\tservices,  that\t the Indian Penal Code\twas  not  considered
\n\tsufficient  to meet this menace, and the Prevention of\tCor-
\n\truption Act, .1947 (Act II of 1947)–hereinafter referred to
\n\tas  ‘the  Act’–had to be enacted and amended from  time  to
\n\ttime  to stamp out this evil.  This is an appeal by  special
\n\tleave
\n\t534<\/span>
\n\tdirected  against  the\tjudgment of the\t Bombay\t High  Court
\n\taffirming  the conviction of the appellant under s.  5(1)(d)
\n\tread with s. 5(2) of the Act and the sentence of six  months
\n\trigorous imprisonment passed by the Special Judge, Bombay.
\n\tThe  facts of the present case are more or  less  undisputed
\n\tand  are  the least complicated and,  therefore,  they\tfall
\n\twithin\ta very narrow compass, and by and large we  have  to
\n\texamine\t whether   or not the inferences drawn by  the\tHigh
\n\tCourt from the proved facts are legally correct and lead  to
\n\tonly one hypothesis, namely, that the accused is guilty.
\n\t  It  may. be necessary to give a resume of the\t prosecution
\n\tcase  before indicating the evidence and  the  circumstances
\n\trelied upon by the courts below in convicting the appellant.
\n\tThe appellant was a senior officer in the Army, holding\t the
\n\trank  of  a Major, and was at the material  time  the  local
\n\tPurchase Officer, hereinafter to be referred to as LPO,\t at
\n\tOrdnance  Depot at Talegaon Dabhade,  District Poona.\tFol-
\n\tlowing the Chinese attack in 1962 an Emergency was  declared
\n\tand  the Army required certain engineering tools to be\tsup-
\n\tplied\timmediately.  The Ordnance Depot, Jabalpur,  sent  a
\n\trequisition  of engineering tools to the Ordnance  Depot  at
\n\tTalegaon  Dabhade,  Poona.  In this connection\tthe  Control
\n\tOfficer\t of the Ordnance Depot wrote a letter to  the  Group
\n\tOfficer\t requesting him to despatch the stores\timmediately.
\n\tThe Group Officer consequently wrote a letter to the  appel-
\n\tlant  who  was the LPO at the relevant time to\tarrange\t the
\n\tsupply of stores immediately. The appellant was directed  to
\n\tpurchase the stores locally and to deliver them to the Group
\n\tOfficer.   The\tGroup Officer also indicated in\t his  letter
\n\tthat the stores requisitioned by him were  not available  at
\n\tthe Depot at Talegaon. The detailed list of the tools, while
\n\tis  at\tExt. 9, was received by the appellant on  March\t 27,
\n\t1963.\tOn the same day the Chief Ordance Officer passed  an
\n\torder enabling the LPO\tto immediately purchase the tools on
\n\tcash purchase basis.\n<\/p>\n
\t  We might pause for a little while in order to explain\t the
\n\tnature\tof the order passed by the Chief  Ordnance  Officer.
\n\tIt  appears that the normal procedure in the Department\t was
\n\tthat the LPO had to draw cash and then go to the market\t and
\n\tpurchase  the goods against cash.  But in view of the  Emer-
\n\tgency  and the immediate necessity of the tools this  proce-
\n\tdure  was waived and the appellant was permitted to buy\t the
\n\ttools on covering purchase order basis; in other words,\t the
\n\tappellant could himself purchase the tools without obtaining
\n\tthe previous sanction of the Chief Ordnance Officer, and  on
\n\treceiving  the\tbills from the supplier and  processing\t the
\n\tsame could get them sanctioned by the Chief Ordnance Officer
\n\tand then make the payment to the supplier. According to\t the
\n\tprosecution the appellant, a day after he received the list,
\n\tExt. 9, placed orders with Jayantilal Himatlal Shah, P.W. 2,
\n\tfor supply of the tools.  It is not disputed that P.W. 2 was
\n\tone  of the contractors on the approved list of the  Depart-
\n\tment, and still continues to be so.  P.W. 2 further  assured
\n\tthe  appellant\tthat he would make the supply  as  early  as
\n\tpossible, and that .he would do so at moderate rates. P.W. 2
\n\taccordingly procured .the articles from Bombay and delivered
\n\tthe same in the Depot by April 6, 1963 along with his  bills
\n\tafter which
\n\t535<\/span>
\n\tthe  bills  were placed before. the Chief  Ordnance  Officer
\n\tand   after sanction by him the payment was made to P.W.  2.
\n\tApart  from engineering tools there was another\t requisition
\n\tfor  the supply of 900 dessert spoons.\tThe appellant  first
\n\twanted\tto place this order also with P.W. 2, but  he  found
\n\tthat  his rate was a little higher than the rate  which\t was
\n\ttendered to the Department sometime before, and,  therefore,
\n\tplaced\torders with another firm of M\/s\t Devichand  Lalchand
\n\tGandhi,\t P.W. 11, and received 900 dessert spoons of  stain-
\n\tless steel from them.\n<\/p>\n
\t    Sometime in 1964, P.W. 18, an Inspector of Police in the
\n\tOffice\tof Special Police Establishment,   Bombay,  received
\n\tsome   information regarding the appellant having  committed
\n\tan offence punishable under the Act on the basis of which he
\n\trecorded  the First Information Report on January 25,  1964.
\n\tThereafter  he obtained the permission of the Special  Judi-
\n\tcial Magistrate for investigating the case  and\t  eventually
\n\tsubmitted  a  chargesheet against the appellant\t before\t the
\n\tSpecial\t Judge,\t Bombay, on April 28, 1966 as  a  result  of
\n\twhich  the appellant was tried, convicted and  sentenced  by
\n\tthe  Special Judge, and his appeal against the said  convic-
\n\ttion and sentence before the High Court failed.
\n\t    The gravamen of the allegation against the appellant  is
\n\tthat  although\tthe supplies were to be made as\t quickly  as
\n\tpossible the appellant made a deliberate departure from\t the
\n\tnormal\tprocedure  which was adopted in the  Department,  in
\n\tthat  he followed the procedure of covering  purchase  order
\n\tbasis  and placed orders with P.W. 2 a,lone  without  making
\n\tany  enquiries from the local market whether the tools\twere
\n\tavailable there. It was also alleged that by placing  orders
\n\twith P.W. 2 the appellant caused P.W. 2 to earn a profit  of
\n\t45% and thereby caused wrongful loss to the Army Department.
\n\tIt was further alleged that a number of firms in Poona\twere
\n\tprepared  to  supply  the goods required at  a\tmuch  lesser
\n\tprofit\tof  10 to 15 % and the appellant made  no  enquiries
\n\twhatsoever from these firms although some of them were\talso
\n\ton  the\t approved list of the Department.  On the  basis  of
\n\tthese circumstances only the prosecution sought the  convic-
\n\ttion  of the  appellant.  The  appellant  pleaded  innocence
\n\tand  denied  that he had any intention\tto  cause  pecuniary
\n\tbenefit\t to P.W. 2.  The appellant submitted that the  arti-
\n\tcles were very urgently required and as no time was left  he
\n\thad to act quickly and take immediate decisions.  It was for
\n\tthis  purpose that the normal procedure was waived  and\t the
\n\tChief  Ordnance Officer permitted him to adopt the  covering
\n\tpurchase  order\t system. As regards the enquiries  from\t the
\n\tlocal  market,\tthe definite case of the  appellant  in\t his
\n\tstatement under s. 342 of the Code of Criminal Procedure was
\n\tthat he had in fact made enquiries from a few firms and\t his
\n\tenquiries revealed that either the firms did not possess the
\n\tgoods  themselves or that they were not dealers in  all\t the
\n\tgoods.\tHe further expressed his ignorance that P.W. 2\tmade
\n\ta profit of 45% and pleaded, on the other hand, that he\t was
\n\tgiven  to  understand by P.W. 2 that the articles  would  be
\n\tsupplied at moderate rates.  The appellant seemed to suggest
\n\tthat as all  the articles required were not available in the
\n\tlocal  market  he thought it a prudent act to  place  orders
\n\twith a person who was in a position  to supply all the tools
\n\trequired  at one stretch instead of running from one  dealer
\n\tto another for purchasing goods piecemeal, and as P.W. 2 was
\n\tprepared  to supply all the goods himself and he  was\talso
\n\ton the 18–1546 SCI\/76
\n\t536<\/span>
\n\tapproved  list\tof dealers the appellant  decided  to  place
\n\torders\twith him. He made no secret of the fact because\t all
\n\tthe  higher officers, including the Chief Ordnance  Officer,
\n\tsanctioned the bills sent by P.W. 2.  The Trial Court, after
\n\tconsideration  of  the evidence\t and   circumstances,  found
\n\tthat  the appellant had by corrupt means procured  pecuniary
\n\tbenefit for P.W. 2 and caused wrongful loss.  The High Court
\n\tin appeal confirmed the finding of the Trial Court.
\n\tNormally  this Court in special leave against  a  concurrent
\n\tjudgment of the High Court and the Trial Court does not\t re-
\n\tappraise  the  evidence, but unfortunately in this  case  we
\n\tfind that both the courts below have drawn wrong  inferences
\n\tfrom proved facts and have made a completely wrong  approach
\n\tto the whole case by misplacing the onus of proof which\t lay
\n\ton  the prosecution on the accused.  Both the  courts  below
\n\thad proceeded on the footing that it was for the accused and
\n\tnot  for  the  prosecution to prove that  the  accused\tmade
\n\tenquiries  from the local market or that he knew  about\t the
\n\trates,\tetc.   This approach  was obviously  and  manifestly
\n\twrong.\tIt is plain that it was for the prosecution to prove
\n\tthe ingredients of s. 5(1) (d), which runs thus:\n<\/p>\n
\t\t\t     “5(  1  ) A public servant is  said  to
\n\t\t      commit the offence of criminal misconduced.\n<\/p><\/blockquote>\n
\t\t\t  (a)….\n<\/p><\/blockquote>\n
\t\t\t  (b)….\n<\/p><\/blockquote>\n
\t\t\t  (c)….\n<\/p><\/blockquote>\n
\t\t\t  (d) if lie, by corrupt or illegal means or
\n\t\t      by  otherwise abusing his position  as  public
\n\t\t      servant, obtains\tfor himself or for any other
\n\t\t      persons any valuable thing or pecuniary advan-
\n\t\t      tage  ….  ”\n<\/p><\/blockquote>\n
\tIn other words it was for the prosecution to prove  affirma-
\n\ttively that the appellant by corrupt or illegal means or  by
\n\tabusing\t his position obtained any pecuniary  advantage\t for
\n\tsome  other person.  In view of the clear defence  taken  by
\n\tthe appellant it is obvious that it was for the\t prosecution
\n\tto  prove  that\t the accused made no  enquiries,  that\t the
\n\taccused\t made  a departure from the  normal  procedure\twith
\n\toblique motive, and that the accused knew that P.W. 2  would
\n\tmake a profit of 45 % whereas others would be satisfied with
\n\ta  profit of 10-15%. The High Court, to begin with,  started
\n\twith  the presumption that the accused\tled no\tevidence  to
\n\tshow that he made any enquiries. We might state at the .risk
\n\tof  repetition that it was not for the accused to prove\t the
\n\tprosecution case but it was for the prosecution to  disprove
\n\twhat the accused said, namely, that he had made\t  enquiries.
\n\tThe   prosecution  could prove this fact only  by  producing
\n\tsatisfactory  and convincing evidence to show that  the\t ac-
\n\tcused  in fact made no such enquiries and he knew about\t the
\n\tmargin\tof  profit which other dealers would have  made.  We
\n\tshall  immediately show that there is no legal\tevidence  to
\n\tprove  this  fact.  What the courts below have\tdone  is  to
\n\tdisbelieve  the\t case  of the appellant because\t he  led  no
\n\tevidence  to show that he made any enquiries  regarding\t the
\n\tavailability of goods or the rates, and therefore the courts
\n\tpresumed that the accused had a dishonest intention.\n<\/p>\n
\t537<\/span><\/p>\n
\t   In\tthe case of Narayanan Nambiar v. State of  Kerala<\/a>(1)
\n\tthis  Court  had  the occasion to consider  the\t import\t and
\n\tinterpretation\tof the words “corrupt or illegal means”\t and
\n\tthe word “abuse”, as mentioned in s. 5 (1) (d).\t Tiffs Court
\n\tobserved thus:\n<\/p>\n
\t\t\t    “Let us look at the clause “by otherwise
\n\t\t      abusing the position of a public servant”, for
\n\t\t      the  argument  mainly  turns  upon  the\tsaid
\n\t\t      clause.\tThe phraseology is  very  comprehen-<\/p><\/blockquote>\n
\t\t      sive.  It covers acts done “otherwise” than by
\n\t\t      corrupt or illegal means by an officer abusing
\n\t\t      his  position.  The gist of the offence  under
\n\t\t      this  clause is that a public officer  abusing
\n\t\t      his  position as a public servant obtains\t for
\n\t\t      himself  or for any other person any  valuable
\n\t\t      thing or\tpecuniary advantage.  “Abuse”  means
\n\t\t      mis-use i.e. using his position for  something
\n\t\t      for which it is not intended.  That abuse\t may
\n\t\t      be  by corrupt or illegal means  or  otherwise
\n\t\t      than  those means.  The word  ‘otherwise’\t has
\n\t\t      wide  connotation\t and  if  no  limitation  is
\n\t\t      placed  on it, the words “corrupt’,  ‘illegal’
\n\t\t      and   ‘otherwise’\t mentioned  in\tthe   clause
\n\t\t      become surplusage, for on\t that\tconstruction
\n\t\t      every  abuse  of position is gathered  by\t the
\n\t\t      clause. So some limitation will have to be put
\n\t\t      on  that word and that limitation is  that  it
\n\t\t      takes  colour from the preceding\twords  along
\n\t\t      with  which it appears in the clause, that  is
\n\t\t      to say something savouring of dishonest act on
\n\t\t      his  part\t ……\t The juxtaposition   of\t the
\n\t\t      word  ‘otherwise’ with the words\t“corrupt  or
\n\t\t      illegal means” and the dishonesty implicit  in
\n\t\t      the word “abuse” indicate the necessity for  a
\n\t\t      dishonest\t intention on his part to bring\t him
\n\t\t      within the meaning of the clause?’
\n\t    We\tare  satisfied that the judgment of the\t High  Court
\n\truns  counter to the principles laid down by this  Court  in
\n\tthe case cited above, and the High Court does not appear  to
\n\thave  applied  that principle  in deciding the truth of\t the
\n\tcase presented by the prosecution against the appellant.  In
\n\tthe  instant  case it is not alleged that the  accused\t had
\n\tused  any corrupt or illegal means.  It has not\t been  shown
\n\tthat  the accused himself accepted any illegal gratification
\n\tor pecuniary benefit nor has it been shown that he  violated
\n\tany statutory rule  or\torder. Thus, even on the prosecution
\n\tallegation  the case of the appellant falls only within\t the
\n\tsecond\tpart of s. 5 (1 ) (d), namely, abusing his  position
\n\tas  public servant.  The abuse of position, as held by\tthis
\n\tCourt,\tmust  necessarily  be dishonest so that\t it  may  be
\n\tproved that the\t appellant caused deliberately wrongful loss
\n\tto the Army by obtaining pecuniary benefit for P.W. 2.
\n\t    After  having gone through the evidence referred  to  by
\n\tthe  courts  below we think the\t prosecution  has  miserably
\n\tfailed to prove this fact. To begin with, the first  circum-
\n\tstance\trelied\tupon by the High Court is that\tthe  accused
\n\tmade  a\t deliberate departure from the\tusual  procedure  of
\n\tpurchasing  against cash. According to the prosecution,\t the
\n\tprocedure  was that the officer should have drawn cash\tfrom
\n\tthe  office and then he should have gone to the market\t‘and
\n\tpurchased the articles and
\n\t(1) [1963] supp. 2 S.C.R. 724, 730-731.\n<\/p>\n
\t538<\/span><\/p>\n
\tafter having made the purchases he would obtain the sanction
\n\tof the Chief Commanding Officer. This procedure is known  as
\n\t“cash  purchase basis”.\t The accused, however,\tadopted\t the
\n\tprocedure known as “covering purchase order”, i.e., he\tmade
\n\tthe  purchases\tand got the bills sanctioned  by  the  Chief
\n\tOrdnance  Officer.  It is not disputed that in\tthe  present
\n\tcase,  in  view\t of the emergent  circumstances\t the  Chief.
\n\tOrdnance  Officer  himself had allowed\t the  appellant\t  to
\n\tmake  the  purchases on the basis of cash purchase  and\t had
\n\thimself sanctioned the bills tendered by the supplier,\tP.W.\n<\/p>\n
\t2.   All  the bills were paid to P.W. 2 by cheque.   It\t was
\n\tcontended by the State that in the instant’ ease the  appel-
\n\tlant had purchased these articles against cash and later  on
\n\tobtained the necessary\tcovering purchase  orders.  This  is
\n\tnot  correct because the appellant had merely placed  orders
\n\twith  P.W. 2 for supply of goods and it was only  after\t all
\n\tthe goods had been supplied, verified and found correct that
\n\tthe bills were forwarded to the Chief Commanding Officer for
\n\tsanction.  The High Court itself found that Lt. Col. Pun had
\n\tpassed\tan order directing the appellant as LPO to  purchase
\n\tall the articles against cash immediately.  In this  connec-
\n\ttion the High Court observed as follows:\n<\/p>\n
\t\t\t     “Similarly,  it is not in dispute\tthat
\n\t\t      regarding the mode of purchase, Lt. Col.\tPurl
\n\t\t      had  already  passed an  order  directing\t the
\n\t\t      appellant\t as Local Purchase Officer  to\tpur-
\n\t\t      chase all the articles against cash immediate-
\n\t\t      ly.”\n<\/p><\/blockquote>\n
\tEven  assuming\tthat the appellant  purchased  the  articles
\n\tagainst\t cash he was doing so in compliance with the  orders
\n\tof  the Chief Ordnance officer and there was  absolutely  no
\n\treason for the High Court or the Special Judge to have drawn
\n\tinferences against the appellant for violation of the proce-
\n\tdure  when the highest officer of the Depot  had  sanctioned
\n\tthe procedure which was adopted by the appellant and had  in
\n\tfact  authorised him to do so in view of the Emergency.\t  It
\n\tmay  be\t necessary to refer to the evidence of P.W.  2,\t Lt.
\n\tCol.  Des Raj (P.W. 10) who stated that a covering  purchase
\n\torder is sanctioned only when the Chief Ordnance Officer  is
\n\tsatisfied that there are special circumstances which  neces-
\n\tsitate\tthe sanction of the purchase order after the  stores
\n\tare  purchased. It is not disputed that the  Chief  Ordnance
\n\tOfficer\t had issued a covering purchase order in this  case.
\n\tIn these circumstances the best person who would have thrown
\n\ta  flood  of light on the subject and whose  evidence  would
\n\thave  clinched\tthe  issue whether or not  the\taccused\t was
\n\tauthorised  to\tdepart from the normal\tprocedure  was\tCol.
\n\tAnand,\tthe Chief Ordnance Officer, who though\texamined  by
\n\tthe Police during investigations was not produced before the
\n\tCourt.\tIn  the absence of his evidence there was  no  legal
\n\tjustification  for  the court to hold that the\taccused\t had
\n\tdeparted, from the normal procedure without the authority of
\n\tthe Chief Ordnance Officer, particularly when it is admitted
\n\tthat a covering purchase order was passed by the said  Offi-
\n\tcer  and  the bill was also finally sanctioned by  him.\t  In
\n\tthese  circumstances,  therefore, the entire fabric  of\t the
\n\treasoning  of  the High Court as also that  of\tthe  Special
\n\tJudge falls to the ground.\n<\/p>\n
\t    Another circumstance on the basis of which the appellant
\n\twas  convicted was the fact that he made no  enquiries\tfrom
\n\tthe local suppliers, nor did he ascertain the rates. On this
\n\tquestion also the High Court, as well as the Special  Judge,
\n\thave misplaced the onus on the accused.\n<\/p>\n
\t539<\/span><\/p>\n
\tTo  begin with, the accused has categorically stated in\t his
\n\tstatement  under s. 342, Cr.P.C., that he had in  fact\tmade
\n\tenquiries and had sent the Supply Clerk and one Deshmukh for
\n\tgetting\t the  rates  and find out whether  the\tstores\twere
\n\tavailable.  The prosecution could succeed only in the state-
\n\tment  of the accused could be falsified and this  could\t not
\n\tonly  be  done if the prosecution had  examined\t the  Supply
\n\tClerk  who  was sent by the appellant or Deshmukh,  both  of
\n\twhom  were   employees\tin the Army and\t in  possession\t and
\n\tcontrol\t of the prosecution,  and yet none of these  persons
\n\twere examined to falsify the statement of the accused.\t The
\n\tHigh Court, on the Other hand, was in error when it observed
\n\tthat  the  accused did not produce  either   the   clerk  or
\n\tDeshmukh  forgetting that it was not for the   accused\t but
\n\tfor   the prosecution to prove that what the  appellant\t had
\n\tsaid   was  false.  Furthermore, reliance was placed by\t the
\n\tHigh  Court and the Special Judge on the evidence  of  P.W.s
\n\t14, 15 and 16.\tP.W. 14 does state that his firm was dealing
\n\tin  engineering tools and other articles and that he was  on
\n\tthe  list of approved contractors of ,Ordnance\tDepot.\t He,
\n\thowever, admitted that out of the articles required only  80
\n\tto 90 percent wet available with the firm.  In\tcross-exami-
\n\tnation,\t  when asked about a particular type of\t engineering
\n\ttool  the witness  was unable to state for what\t purpose  it
\n\twas used.  The witness admitted that he did not maintain any
\n\tstock  register at the shop and the fact that  the  articles
\n\twere available was being deposed by him merely on the  basis
\n\tof his memory.\tFinally, the witness admitted thus:\n<\/p>\n
\t\t\t   “I  had  not gone to\t Talegaon   Ordnance
\n\t\t      Depot to enquire whether any engineering tools
\n\t\t      were required in the    depot.”\n<\/p><\/blockquote>\n
\tThe  High Court seems to think that as this  witness’s\tfirm
\n\twas merely a retailor, therefore there was not necessity  to
\n\tkeep  a stock register, The witness has nowhere stated\tthat
\n\the  was\t a retailer and not a whole  saler  and,  therefore,
\n\tthere  was  absolutely no basis for the High Court  to\thave
\n\tconjectured or speculated on this point in order to raise an
\n\tinference against the appellant.  On the other hand, in\t the
\n\tabsence\t of any document, register or inventory to show\t the
\n\tnature\tof goods the firm of P.W. 14 was dealing in,  it  is
\n\tdifficult to accept the ipsi dixit of the witness consisting
\n\tof  his bare statement based on pure memory that  the  engi-
\n\tneering\t tools were available six years before the  date  he
\n\twas deposing.  Such evidence, in our opinion, is  absolutely
\n\tworthless.  In fact P.W. 18, the Inspector, has deposed that
\n\tin  the course of his investigations he had seized  the\t ac-
\n\tcounts and documents of the local firms, and yet no document
\n\twas produced by the prosecution to show that P.W. 14 in fact
\n\thad  in\t his possession engineering goods  at  the  relevant
\n\ttime.\tFurthermore, the witness positively states  that  he
\n\tnever  went to Talegaon Ordnance Depot\tto  enquire  whether
\n\tany  tools were required.   It was also not put to the\twit-
\n\tness whether the appellant personally or through one of\t his
\n\temployees  had\tapproached him regarding the supply  of\t the
\n\tgoods.\tIn these circumstances, therefore, how possibly\t can
\n\tan  inference  be drawn from his evidence that\tthe  accused
\n\tmade no enquiries whatsoever when the accused had positively
\n\tstated\tthat he did.  Finally, on the question of  rates  or
\n\tmargin of profit also, the witness makes
\n\t540<\/span>
\n\tonly  a verbal statement that he would have  charged  10-15%
\n\twhich cannot be accepted in the absence of documentary proof
\n\tof the fact that the firm had sold these articles during the
\n\trelevant  time\tto various persons and made   10-15%  profit
\n\tonly.\t It  is\t manifest that if the firm was\tcarrying  on
\n\tsuch a huge  business then everything  must have been  writ-
\n\tten  in\t the account books which were in possession  of\t the
\n\tInspector  and yet not produced.   In  these  circumstances,
\n\ttherefore, we are satisfied that the High Court misread\t the
\n\tevidence of P.W.14.\n<\/p>\n
\tReliance was then placed on the evidence of P.W. 15,  Mahen-
\n\tdrakumar, who is a partner of the firm known as ‘C.  Ambalal
\n\t& Co.’\tTo  begin with, he clearly admits that his firm\t was
\n\tdealing\t in hardware, paints, sanitaryware and\tonly   files
\n\tamongst\t the engineering  tools. The witness further  states
\n\tthat  Out  of the articles mentioned in\t the list,   Ex.  9,
\n\tonly  files,  being items Nos. 75 to 94 and 96\tto  99\twere
\n\tavailable  with him and could be supplied by him.   He\tdoes
\n\tnot say that he was in a position to supply the other  engi-
\n\tneering\t goods also. Again, the witness makes only a  verbal
\n\tstatement  without any documentary proof that he would\thave
\n\tcharged\t 10-12%\t of profit on the amount spent.\t It  may  be
\n\tpertinent to note  here that the appellant in his  statement
\n\tunder  s.  342, has positively asserted that  he   did\tmake
\n\tenquiries from the firm of Ambalal. Ambalal was examined  by
\n\tthe  police  but not produced in court and  the\t explanation
\n\tgiven was that he was ill.  That by itself is not a convinc-
\n\ting explanation because the prosecution could have asked for
\n\tadjournment from the court to enable Ambalal to be  examined
\n\tas a witness for he alone could have falsified the statement
\n\tof the accused whether or not any enquiry was made from him.
\n\tFinally, this witness himself states:\n<\/p>\n
\t\t\t    “I do not remember whether I was present
\n\t\t      when  the\t list, Ex. 9, was shown\t to  Ambalal
\n\t\t      when his\tstatement  was recorded.”\n<\/p><\/blockquote>\n
\tThe  evidence of this witness, therefore, does\tnot  exclude
\n\tthe  possibility of the accused having made  enquiries\tfrom
\n\tAmbalal and  the accused has in fact explained in his state-
\n\tment  that no orders could have been placed with  this\tfirm
\n\tbecause\t he  was only in a position to\tsupply\tfiles  which
\n\tformed\ta  very\t small component of  the  engineering  goods
\n\trequired.   In\tthese circumstances,  therefore,  the\tevi-
\n\tdence,\tof  P.W. 15 does not falsify the  statement  of\t the
\n\taccused\t that he made enquiries from this firm but,  on\t the
\n\tother hand, goes to support it. The High Court has  observed
\n\tthat if the appellant had made enquiries from P.W. 15,\tthen
\n\the would have undoubtedly remembered this fact. This process
\n\tof  reasoning appears to us to be absolutely perverse.\tWhen
\n\tthe witness himself does not remember whether the  appellant
\n\thad  made  any enquiries in his presence  then\tthe  natural
\n\tinference would be that he does not exclude the\t possibility
\n\tof the appellant having made an enquiry, and in the  absence
\n\tof  the\t examination of Ambalal it cannot be said  that\t the
\n\tstatement of the accused was false.\n<\/p>\n
\tThe  next evidence on which reliance was placed was of\tP.W.
\n\t16,  Taharbhai.\t This witness clearly admits that he had  no
\n\tengineering  goods  in his stock and if an  order  had\tbeen
\n\tplaced he could\t have
\n\t541<\/span>
\n\tsupplied  them\tby procuring them from\tsomebody  else.\t  In
\n\tthese  circumstances he was in the same position as P.W.  2.
\n\tThis witness further admits that out of the list, Ex.9, only
\n\tfiles  and  drills  were available, but the stock  of  these
\n\tarticles  was  scanty.\tHe again orally says that  he  would
\n\thave  charged a\t profit of  15%.  This\twitness admits\tthat
\n\the  does not remember whether the appellant had come to\t his
\n\tshop on March 27, 1963 to enquire about the availability  of
\n\tthe  goods and the rates of engineering tools.\tIt was\tsug-
\n\tgested\tto  him\t that enquiries were made from\thim  by\t the
\n\tappellant  and\the said, that the tools were  not  available
\n\twith  his firm.\t The evidence of this witness  also  suffers
\n\tfrom the same infirmities as are to be found in the evidence
\n\tof P.Ws. 14 and 15.  He has not produced the stock  register
\n\tnor any document or accounts or inventories to show that  he
\n\thad  all  the goods required.  His statement  further\tdoes
\n\tnot   exclude\tthe possibility of the accused\thaving\tmade
\n\tenquires  from\thim,  or at any rate does  not\tfalsify\t the
\n\tstatement of the accused. As regards  the margin of  profit,
\n\tthat  is also ipsi dixit without any basis and is  not\tsup-
\n\tported by his account books.\n<\/p>\n
\t    It\tseems  to us that before a presumption\tagainst\t the
\n\taccused could be raised that he knew that other firms  would
\n\thave  charged  a much lesser profit than P.W.2,\t it   should
\n\thave  been proved  by the production of account books of the
\n\tfirms concerned and their dealings during the relevant\ttime
\n\tthat they had sold similar of identical goods and made\tonly
\n\ta  profit of 10-15%.  The verbal statement of the  witnesses
\n\tregarding  the margin of profit which they would  have\tmade
\n\thad orders been placed six years back can carry no weight.
\n\t    This  is all the evidence on the basis of  which  infer-
\n\tences  against the appellant have been drawn.  After  having
\n\tgone through  the evidence we are satisfied that the  prose-
\n\tcution has not produced any reliable or conclusive  material
\n\tto  prove that the appellant had any dishonest intention  in
\n\tcausing\t pecuniary benefit  to P.W. 2.\tEven  assuming\tthat
\n\tthe  accused departed from the normal procedure\t in view  of
\n\tthe urgent necessity of the articles it cannot be said\tthat
\n\tthis was done with a corrupt or oblique motive.\t The  appel-
\n\tlant  had been asked. by the Jabalpur Depot to supply  these
\n\tarticles  immediately. The appellant, therefore, had t6 take
\n\ta  quick  decision and he  was authorised to do\t so  by\t his
\n\tChief.\t Since P.W. 2 was prepared  to supply all the  goods
\n\tin  bulk  at one stretch the appellant may have\t thought  it
\n\tbetter to place the orders with him.  May be, that this\t was
\n\tan  error  of judgment or an act of indiscretion,  but\tfrom
\n\tthat  alone an inference of dishonest intention\t cannot\t  be
\n\tdrawn.\tMoreover, P.W l0 has clearly stated thus:\n<\/p>\n
\t\t\t     “I\t had no reason to doubt the  honesty
\n\t\t      or sincerity of the accused during the  period
\n\t\t      he was serving under me.”\n<\/p><\/blockquote>\n
\tThis would show that the appellant was really an honest\t and
\n\tsincere officer and his antecedents were good.\tAgainst this
\n\tbackground we should have expected much better\tand superior
\n\tevidence  to  justify inference of the accused\thaving\tbeen
\n\tanimated  by  a dishonest intention in placing\torders\twith
\n\tP.W. 2.\n<\/p>\n
\t542<\/span><\/p>\n
\t    There  is  yet  one more  intrinsic\t circumstance  which
\n\tnegatives the guilt of the accused.  Although the  appellant
\n\thad given orders with respect to all the articles to P.W. 2,
\n\tyet  when he found that P.W. 2 was charging higher rate\t for
\n\tthe dessert spoons he did not place orders for the same with
\n\thim but placed the orders with P.W. 11, who supplied at\t the
\n\trate  of Re. 1\/- per spoon which was less than the  rate  at
\n\twhich  P.W.  2\twas ready to supply.  This  shows  that\t the
\n\tappellant  did\ttake due care and caution and  did  not\t act
\n\tblindly. There is absolutely no legal evidence on the record
\n\tto  show as to what was the nature of the margin  of  profit
\n\twhich  the  firms  of P.Ws. 14, 15 and 16 had  made  if\t the
\n\torders had been placed with them, and in the absence of such
\n\tan evidence the court would not be justified in holding that
\n\tthe accused abused his position in causing  pecuniary  bene-
\n\tfit  to P.W. 2.\t The appellant had admitted that if  he\t had
\n\tknown  that P.W. 2 would have charged such a high profit  he
\n\twould have been more careful.\n<\/p>\n
\t    On\tthe other hand, what appears to us to be  most\tsur-
\n\tprising is that although P.W. 2 was the sole beneficiary  of
\n\tthe whole transaction and had, according to the prosecution,
\n\tmade  profit of 45% and was, therefore, in the nature of  an
\n\taccomplice,  yet he continues to be on the approved list  of
\n\tthe  departmental  suppliers even on the date  when  he\t was
\n\tgiving evidence.  Such a conduct on the part of the  depart-
\n\tment  can only be consistent with the innocence rather\tthan
\n\tthe.  guilt of the accused.  If the  prosecution  allegation
\n\twas  true   that P.W. 2 through his business  influence\t ob-
\n\ttained the  order  in  his favour, then before the  prosecu-
\n\ttion  was started against the appellant, P.W. 2 should\thave
\n\tbeen  blacklisted.  But this was not done.  The\t High  Court
\n\tappears\t to  have been led away by the impression  that\t the
\n\tappellant  had\tpersonal relations with P.W.  2.  There\t is,
\n\thowever,  no such evidence on record and P.W. 2 himself\t has
\n\tcategorically  stated that his relations with the  appellant
\n\twere  purely  business\trelations as he used  to  visit\t the
\n\toffice in connection with the supplies off and on.  In these
\n\tcircumstances, therefore, if P.W. 2 was not suspected by the
\n\tprosecution for having received huge pecuniary benefit\tmuch
\n\tless could the blame lie on the appellant.\n<\/p>\n
\t    In these circumstances, even if there was some amount of
\n\tcarelessness  or negligence on the part of the appellant  it
\n\tis impossible to doubt his bona fides.\tHe acted as a produ-
\n\tent  person  and  tried to get the supplies  as\t quickly  as
\n\tpossible  with\tthe result that all  the  gods\trequired  by
\n\tJabalpur Depot were supplied within two weeks.
\n\t    A careful analysis of the evidence and the circumstances
\n\twould,\ttherefore, show that the approach of the High  Court
\n\twas clearly
\n\t543<\/span>
\n\twrong  and that the inferences drawn by the High Court\twere
\n\tnot  at all warranted by the circumstances and facts  proved
\n\tin the case.  The entire charge against the appellant rested
\n\ton circumstantial evidence and the prosecution has failed to
\n\tprove  that  the circumstances\twere such as  could  be\t ex-
\n\tplained only on one hypothesis, namely, that the accused was
\n\tguilty.\n<\/p>\n
\t    For\t these\treasons, therefore, the appeal\tis  allowed,
\n\tjudgment  of  the High Court set aside\tand  conviction\t and
\n\tsentence imposed on the appellant are hereby quashed, and he
\n\tis acquitted of the  charge framed against him.\n<\/p>\n
\tM.R.\t\t\t\t\t   Appeal allowed.\n\t544<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.K. Kale vs State Of Maharashtra on 17 December, 1976 Equivalent citations: 1977 AIR 822, 1977 SCR (2) 533 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: S.K. KALE Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT17\/12\/1976 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, P.N. CITATION: 1977 AIR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-105206","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.K. 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