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PETITIONER: KHANDU SONU DHOBI AND ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT15/02/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M. REDDY, P. JAGANMOHAN

CITATION:  1972 AIR  958            1972 SCR  (3) 510  1972 SCC  (3) 786  CITATOR INFO :  R          1973 SC 913  (14)  R          1974 SC 923  (35)  RF         1992 SC 604  (125)

ACT: Penal   Code   1860   (45   of   1860)--S.    403--Dishonest misappropriation for a time only is misappropriation. Prevention    of    Corruption   Act   (2    of    1947)--S. 5A--Investigation conducted in breach of section--Illegality must result in miscarriage of justice. Bombay  Land Improvement Schemes Act, 1942--Sub-section  (1) and  (2) of s. 23--Bar of prosecution applies  only  to  any thing done in good faith or "under" the Act.

HEADNOTE: The  appellants  entrusted with the duties of  carrying  out improvement schemes under the Bombay Land Improvement Scheme Act, 1942, were charged with the offence of preparing  false documents and committing criminal breach of trust in respect of certain amount.  It was alleged that even though no  work had been done and no amount had been disbursed they prepared documents ’showing the doing of the work and payment of  the amount,  They were convicted under s. 218 read with  section 34, section 477A read with section 34 and section 409 read. with section 34 of the Indian Penal Code as well as  section 5(2).  read  with  section 5(1)(d)  of  the  Prevention,  of Corruption Act.  The High Court affirmed the conviction.  in the  appeal  to this Court it was contended that  after  the matter  had  been reported to the,  higher  authorities  the rectification work was done and the money was disbursed  for the  purpose  for  which it had  been  entrusted;  that  the conviction was bad because of non-compliance with section 5A of   the  Prevention  of  Corruption  Act;  and   that   the prosecution  was  barred by time under s. 23 of  the  Bombay Land Improvement Schemes Act, 1942. Dismissing the appeal, HELD  : (i) There is no cogent ground to disagree  with  the trial court and the High Court that the accused had prepared false documents, bad also committed criminal breach of trust and  were  in  the  discharge, of  their  duties  guilty  of criminal misconduct as defined in s. 5 of the Prevention  of

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Corruption Act. (ii)It   is   no   answer   to   a   charge   of   criminal misappropriation that after the matter bad been reported  to the  higher  authorities the accused got  the  rectification work  done or the money was subsequently disbursed  for  the purpose  for  which  it had been  entrusted.   According  to explanation  1 to section 403 Indian Penal Code a  dishonest misappropriation  for  a  time  only  is  "misappropriation" within the meaning of that section. [515 D] (iii)It is well established that cognizance of a  case, has,  in  fact, been taken by the court on a  police  report following investigation conducted in breach of provisions of section  5A of the Prevention of Corruption Act, the  result of  the trial cannot be set aside unless the  illegality  in the 511 investigation   can  be  shown  to  have  brought  about   a miscarriage of justice.  The reason for the above dictum  is that   an  illegality  committed   during  the   course   of investigation   does   not   effect   the   competence   and jurisdiction  of  the  Court to, try  the  accused.   Where, therefore,   the  trial  of  the  case  has   proceeded   to termination,  the invalidity of the preceding  investigation would not vitiate the conviction of the accused as a  result of the trial unless the illegality in the investigation  has caused  prejudice to the accused.  Since there has  been  no miscarriage  of justice in the present case because  of  the alleged non-compliance with section 5A the conviction of the appellants cannot be set aside on that score. [515 H] H.N.  Rishbud  and  Inder Singh v. The  State  of  Delhi, [1955] 1 S.C.R. 1150, referred to. (iv)Sub-section (i) of the Bombay Land Improvement  Schemes Act  1942  has  plainly  no application  as  it  relates  to anyth ing  done in the good faith.  It cannot also  be  said that the acts of the appellants in preparing false documents and  committing criminal breach of trust as also the act  of criminal  misconduct  were  done  "under"  the  Bombay  Land Improvement  Schemes’ Act within the meaning of  sub-section (2).   The subsection has no application where something  is done  not  under the Act even though it has been done  by  a public  servant  who has been entrusted with the  duties  of carrying  improvement schemes under this Act.  The  impugned acts of the appellants was not in discharge of their  duties under  the Act but in obvious breach and flagrant  disregard of their duties. [516 G-517 D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 105  of 1969. Appeal  by special leave from the judgment and  order  dated March 27, 1969 of the Bombay High Court in Criminal  Appeals Nos. 53 and 45 of 1968. V.S.  Kotwal, A. G. Ratnaparkhi and Rajiv Shah,  for  the appellant. R. M. Mehta and B. D. Sharma, for the respondent. The Judgment of the Court was delivered by Khanna, J. This is an appeal by special leave by Khandu Sonu Dhobi and Bhikanrao Rambhau Khairnar against the judgment of the Bombay High Court affirming on appeal the conviction  of the  appellants  under  section 218 read  with  section  34, section 477A read with section 34 and section 409 read  with section  34 of Indian Penal Code as well as under section  5 (2)  read  with  section 5 ( 1 ) (d) of  the  Prevention  of

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Corruption  Act.   Sentence of rigorous imprisonment  for  a period  of  one  year and a fine of Rs. 200  or  in  default further rigorous imprisonment for a period of two months has been  awarded  on  each  count  to,  the  appellants..   The substantive sentences have ben ordered to run concurrently. Dhobi appellant No. 1 was an agricultural assistant and  was working under Khairnar appellant No. 2 who was agricultural 512 supervisor   in  the  soil  conservation  section   of   the Government  of Maharashtra.  Dhobi was incharge of the  work relating  to  a Bundh in block No. 13 of village  Asane  in Taluka  Mandurbar.  The above block  comprises  agricultural lands bearing survey Nos. 8, 17, 18, 19 and 32 measuring  90 acres.   The  Bundhs were being constructed since  the  year 1962.   Rectification work in respect of those Bundhs  at  a cost  of  Rs. 369.07 had to be got done by  Dhobi  appellant under the supervision of Khaimar appellant.  The  Government sanctioned  an  amount of Rs. 4779 in  connection  with  the construction  of the Bundhs.  An advance amount of Rs.  5000 was  received  by Khaimar accused on March 2, 1966  in  that connection.   Work  of the value, of Rs. 4400 was  done  but that relating to rectification work was not done.  According to   the  rules  of  the  soil  conservation  section,   the Government  spent the money in the first instance and  after the  report  of  the completion of work  was  received,  the expenses  were  recovered  from  the  landowners  for  whose benefit  the work was done.  On March 11, 1966 Khaimar  made entries  in  measurement  book Ex. 27 showing  that  he  had checked  28  payments  and  certified  the,  same.   Khaimar accused  also  stated in the entry that he  had  passed  the measurements  and  paid Rs. 369.07. Paysheets  Ex.  64  were prepared  by  Dhobi  accused  and  he  obtained  the   thumb impressions and signatures of the laborers on the paysheets. Khaimar made his initials below the thumb impressions in the paysheets.   On  the  last page of  the  paysheets,  Khaimar signed  a  certificate according to which he  had  paid  Rs. 369.07  to  PW 10 Jagan Trinibak who used to do  the  labour work.   Final bill Ex. 28 was also prepared on that  day  by the accused and the signature of Jagan Trimbak was  obtained on  the  same.   The bill was got signed from  PW  7  Ziparu Tukaram and another person as attesting witnesses.  The bill was signed thereafter by Khaimar.  Debit entry Ex. 32 of Rs. 369.07  was  made by Khaimar accused in the cash  book.   He also  prepared  work abstract Ex. 29 on April 16,  1966  and sent  it  to the sub-divisional  soil  conservation  officer Nandurbar showing an expenditure of Rs. 369-07. The  case of the prosecution was that the  measurement  book Ex.  27, paysheets Ex. 64, final bill Ex. 28 and  cash  book entry Ex. 32 were false documents and were fabricated by the accused  without  doing any reification work on  the  Bundh. The  accused  thus  committed criminal breach  of  trust  in respect of the amount of Rs. 369.07 in furtherance of  their common  intention  to  misappropriate  government  property. According further to the prosecution case, the landowners in block No. 13 came to know of the, above, acts of the accused and  they complained about it to Sarpanch Tanku Bhagwan  (PW 12).   Tanku  sent  a  telegram on April  12,  1966  to  the superintending agricultural officer, Bombay division,  Nasik in this connection.  A copy of the telegram was 513 thereafter  sent by the superintending agricultural  officer to divisional soil conservation officer D.S.D. Ghate (PW  1) for  necessary  action as well as for  enquiry  and  report. Chate PW went to village Asane on May 2, 1966 and  inspected block No. 13.  He found that entries had been made about the

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payment of Rs. 369.07 in the measurement book and cash  book even  though  no rectification work had  been  done.   Chate submitted   his  report  on  May  6,  1966  for   proceeding departmentally against the accused.  On receipt of the above report, the superintending agricultural officer directed  P. R.  Inamdar  (PW  1 1 ),  deputy  director  of  agricultural engineering,  to go to Asane village and submit  his  report after  personally  verifying the facts.  Inamdar  went  with Ghate  to  block No. 13 in Asane village on  May  11,  1966. Both Inamdar and Ghate found that no rectification work  had been done.  They did not find even a single pit in the lands in  that block although, according to measurement  book,  83 pits had been recently dug.  Inamdar and Ghate also met  the Sarpanch  and  other landowners of  Asane  village.   Report dated  May  18,  1966 was thereafter  submitted  by  Inamdar affirming those facts. Sarpanch  Tanku sent complaint Ex. 84, in the meanwhile,  on April  30,  1966 to the director of  anti-corruption  branch Maharashtra  State  stating that the  accused  had  prepared false  bill for Rs. 369.07 without doing any work  and  that they  had misappropriated that amount.  It was  also  stated that  attempts were being made to shield the  accused.   The director of anti-corruption sent a copy of that  application to  Sub Inspector K. G. Patil (PW 13) who was then  attached to  Dhulia  officse  of  the  anticorruption  branch.    Sub Inspector Patil made local enquiry and took into  possession the measurement book, paysheets and cash book.  The director of anti-corruption branch directed Patil to register a  case and  investigate into the, matter.  Patil went to Nasik  and recorded statement Ex. 79 of Inamdar PW on November 7, 1966. The  statement  was  then sent to  Nandurbar  Taluka  police station.   A  case  was  registered on  the  basis  of  that statement  at  the police station on November 8,  1966.   On November 12, 1966 sub Inspector Patil applied for permission under  section  5A of the Prevention of  Corruption  Act  of judicial  magistrate 1st class to investigate  the  offence. The  permission was granted by the judicial  magistrate  1st class Nandurbar on the same day.  Patil thereafter  recorded statements  of a number of persons.  Patil was  subsequently transferred and the case was investigated by his  successors Mahamuni  and  Kulkarni  who  also  obtained  the  requisite permission.  Sanction Ex. 97 for the prosecution of the  two accused  was  granted under section 6 of the  Prevention  of Corruption  Act by the superintending  agricultural  officer Bombay division, Nasik on May 18, 1967. 514 The  two accused in their statements admitted that the  work of  the value of Rs. 369.07 wasnot done till March 11,  1966 although it was so stated in the various documents by  them. The  accused also admitted that no amounts were paid to  any of  the  labourers  mentioned  in  the  paysheets   although signatures  and thumb impressions of the labourers had  been obtained  on the paysheets on March 11, 1966.  According  to the  accused,  they had prepared the  various  documents  in accordance  with  the  instructions  of  Ghate  PW  who  was insisting in March 1966, and even earlier, that a completion report relating to block No. 13 be sent as the entire amount spent  on that block since 1962 could not be  recovered  for want  of a. completion report.  Khaimar accused  added  that rectification  work had been done between May 13,  1966  and May  16,  1966 and the amount of Rs. 369.07  was  thereafter disbursed on May 16, 1966. The learned special judge held that the amount of Rs. 369.07 had  not been paid by the two accused to the labourers.   No work,  it  was  found,  had  been  done  and  the  different

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documents  prepared by the accused in this  connection  were false  even  on  their  own  admissions.   The   explanation furnished by the accused that they prepared false  documents at  the instance of Ghate and got work done  thereafter  was not accepted.  Objection was raised on behalf of the accused that  the  investigation of the case was  illegal  and  that prosecution  was  barred by time under  the  pro-visions  of section 23 of the Land Improvement Schemes Act, 1942.  These objections  were  repelled.  The  accused  were  accordingly convicted and sentenced as above. On  appeal  the  High Court affirmed the,  findings  of  the learned special judge. We  have heard Mr. Kotwal on behalf of the,  appellants  and are of the opinion that there is no merit in the appeal.  It has  not  been  disrupted before us that  the  accused  made various  entries  and prepared documents on March  11,  1966 about  their having got the rectification work done as  well as about the payment of Rs. 369.07 on that account.  It  has also not been disputed before us that the amount of Rs. 369- 07 was not paid to any one by the accused in March or  April 1966.   According  to Ghate (PW 1) and Inamdar (PW  11),  no work relating to the rectification of the Bundh was found to have been done till May 11, 1966 when they visited the  site in  question.  Inamdar’s evidence also shows that  according to  the measurement book prepared by the accused,  83  pits had been recently dug although the witness could not find  a single  pit on the spot.  In view of the above, we  find  no cogent ground to disagree with the trial court and the  High Court that the accused had prepared false documents and  had also committed criminal breach of trust in respect 515 of  the amount of Rs. 369.07. We also agree with  the  trial court  and  the  High Court that the accused  were  in  the discharge  of their duties guilty of criminal misconduct  as defined in section 5 of the Prevention of Corruption Act. Mr. Kotwal has argued that the accused completed the  recti- fication  work after May 11, 1966,.  There is,  however,  no direct evidence as may show that the, rectification work was completed’  after May 11, 1966.  Even if it may  be  assumed that  the  accused completed the rectification work  in  May 1966,  that  fact,  in our opinion, would  not  absolve  the accused  of their criminal liability.  The  charge,  against the  accused  relates  to  preparation  of  false  documents because  even  though no work had been done till  March  11, 1966  and no amount had been disbursed, they prepared  docu- ments showing the doing of that work and the payment of that amount.   It  is no answer to, that charge  that  after  the matter  had  been reported to the  higher  authorities,  the accused in the month of May 1966 got the rectification  work done.   It  is  also  no answer  to  a  charge  of  criminal misappropriation that the money was subsequently, after  the matter had been reported to the high authorities,  disbursed for the purpose for which it had been entrusted.   According to  explanation  1  to  section 403  Indian  Penal  Code,  a dishonest   misappropriation   for   a  time   only   is   " misappropriation " within the meaning of that section. Mr.  Kotwal  has also submitted that the  accused  expressed willingness  to complete the work after the matter had  been reported to the higher authorities.  This submission,  ’even if  accepted,  would not exonerate the accused  because  the willingness after the matter had been reported to the higher authorities  could  not efface or undo the  offence  earlier committed by the accused. Argument has then been advanced on behalf of the  appellants that  Sub Inspector Patil did not make investigation in  the

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case in accordance with law.  It is urged that permission to make  investigation  was granted to Sub Inspector  Patil  on November  12,  1966 and, as such, he was not  authorized  to make  before  that  date  the  enquiry  which  led  to   the registration  of  the case as that enquiry  partook  of  the character of investigation.  Nothing has been brought to our notice  as  to how an enquiry before the registration  of  a case can be held to be investigation.  The matter,  however, need not be dilated upon and it is not necessary to  express any  final opinion in the matter because we find that  there is  no material on the record as may show that  the  accused were  prejudiced because of the alleged non-compliance  with the provisions of section 5A of the Prevention of Corruption Act.   It  is well established that where cxognizance  of  a case  has,  in  fact, been taken by the court  on  a  police report following investigation 516 conducted  in  breach  of provisions of section  5A  of  the Prevention of  Corruption  Act, the result  of  the  trial cannot   be   set  aside  unless  the  illegality   in   the investigation   can  be  shown  to  have  brought  about   a miscarriage of justice.  The underlying reason for the above dictum  is  that an illegality committed in  the  course  of investigation   does   not   affect   the   competence   and jurisdiction  of  the  court to  try  the  accused.   Where, therefore,   the  trial  of  the  case  has   proceeded   to termination, the invalidity of the proceeding  investigation would not vitiate the conviction of the accused as a  result of the trial unless the illegality in the investigation  has caused prejudice to the accused (see H. N. Rishbud and Inder Singh  v. The State of DelHi(1)].  Since there has  been  no miscarriage  of justice in the present case because  of  the alleged  non-compliance with section 5A, the  conviction  of the  accused appellants cannot be set aside on  that  score. For  the  same  reason,  we are  unable  to  accede  to  the contention of Mr. Kotwal that the conviction of the  accused should  be set aside because permission under section 5A  of the   Prevention   of  Corruption  Act  to  SI   Patil   for investigation of the offence was granted in a ,casual manner and without the existence of sufficient reasons.  Lastly,  it  has  been  argued  by  Mr.  Kotwal  that   the prosecution of the accused was barred by time under  section 23  of the Bombay Land Improvement Schemes, Act, 1942.   The section reads as under               "(1)  No  suit,  prosecution  or  other  legal               proceeding  shall  be instituted  against  any               public servant or person duly authorized under               this Act in respect of anything in good  faith               done or intended to be done under this Act  or               the rules made thereunder.               (2)No suit or prosecution shall be  instituted               against  any  public servant  or  person  duly               authorized  under  this  Act  in  respect   of               anything  done or intended to be  done,  under               this Act, unless the, suit or prosecution  has               been  instituted  within six months  from  the               date of the act complained of." Sub-section (1) of the section has plainly no application as it  relates  to anything done in good faith.   According  to Bombay  General Clauses Act, a thing shall be deemed  to  be done  in  good  faith where it is  in  fact  done  honestly, whether  it  is  done negligently or  not.   The  appellants admittedly  were not acting honestly when they prepared  the false  documents in question and showed disbursement of  Rs. 369.07  on March 11, 1966.  Mr. Kotwal, however,  relies  on

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sub-section (2) of section 23 and (1)  [1955] 1 S.C.R. 1150. 517 submits that the prosecution could be instituted against the appellants  only within six months from March 11, 1966.   As the charge sheet was submitted long after the expire of  six months,  the case against the accused-appellants,  according to the counsel, was barred by time.  This contention, in our opinion, is devoid of force.  Sub-section (2) refers to suit or  prosecution  against  a public servant  or  person  duly authorized  under  the Act in respect of  anything  done  or intended  to  be  done under  the  Bombay  Land  Improvement Schemes  Act.   It  cannot  be said that  the  acts  of  the accused-appellants  in  preparing  false  documents  and  in committing criminal breach of trust in respect of the amount of Rs. 369-07 as also their act of criminal misconduct  were done  under the Bombay Land Improvement Schemes  Act.   Sub- section  (2)  of  section 23 deals  with  anything  done  or intended  to  be  done under the above mentioned  Act  by  a public  servant or a person duly authorized under  the  Act. It has no application where something is done not under  the Act even though it has been done by a public servant who has been  entrusted  with  duties of  carrying  out  improvement schemes under the above mentioned Act.  The impugned acts of the  appellants in the present case were not  in  discharge of their duties under the above mentioned Act but in obvious breach  and  flagrant disregard of their duties.   Not  only they  did  no rectification work for the Bundh which  was  a part  of the improvement scheme, they  also  misappropriated the amount which had been entrusted to them for the  purpose of rectification. Prayer has also been made for the reduction of the sentence, but we see no cogent ground to interfere with the same.  The appeal consequently fails and is dismissed. K.B.N.                     Appeal dismissed. 5--L1031 Sup.CI/72 518