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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  822            1977 SCR  (2) 533  1977 SCC  (2) 394  CITATOR INFO :  R          1979 SC 826  (20,21)

ACT:               Prevention  of Corruption Act, 1947, s. 5(1)(d),  onus         probandi,  whether to be discharged by the accused.               Constitution of India,  Article 136,  Re-appraisal  of         evidence under,  when called for.

HEADNOTE:             The  appellant was posted as the Local Purchase  Officer         at the Army Ordnance Depot in Poona district.  In connection         with  the purchase of some engineering tools,  charges  were         brought  against him under s. 5(1)(d) read with s.  5(2)  of         the Prevention of Corruption Act, for having procured  pecu-         niary  benefit  for a certain contractor by  corrupt  means,         thereby  causing wrongful loss to the army department.   The         Trial Court convicted the appellant, and in appeal the  High         Court  confirmed the conviction.  The Supreme Court  granted         him Special Leave to appeal under Art. 136 of the  Constitu-         tion, and allowing the appeal,             HELD:  1.  Both the courts below had  proceeded  on  the         footing that it was for the accused to prove the ingredients         of s. 5(1)(d) of the Act.  This approach was wrong.  It  was         for  the prosecution to prove affirmatively that the  appel-         lant by corrupt or illegal means or by abusing his  position         obtained any pecuniary advantage for some other person. [536         C-D]             2.  Normally this Court in special leave against a  con-         current judgment of the High Court and the trial Court  does         not re-appraise the evidence, but here we find that both the         courts  below have drawn wrong inferences from proved  facts         and have made a completely wrong approach to the whole  case         by misplacing the onus of proof which lay on the prosecution         on the accused and presuming that the accused had a  dishon-         est intention.  [536 B-C, H]             Narayanan Nambiar v. State of Kerala [1963] Supp. 2  SCR         724; 730-731, referred to.

JUDGMENT:               CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No.

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       301 of 1971.             (Appeal  by  Special Leave from the Judgment  and  Order         dated  the 15th/l6th June 1971 of the Bombay High  Court  in         Criminal Appeal No. 1405 of 1969).         P.H. Parekh and Miss Manju Jatley, for the appellant..         H.R. Khanna and M.N. Shroff, for respondent.         The Judgment of the Court was delivered by             FAZAL  ALI, J.---Corruption and nepotism is  so  rampant         in   our  society of to-day, and more  particularly  in  the         services,  that  the Indian Penal Code  was  not  considered         sufficient  to meet this menace, and the Prevention of  Cor-         ruption Act, .1947 (Act II of 1947)--hereinafter referred to         as  ’the  Act’--had to be enacted and amended from  time  to         time  to stamp out this evil.  This is an appeal by  special         leave         534         directed  against  the  judgment of the  Bombay  High  Court         affirming  the conviction of the appellant under s.  5(1)(d)         read with s. 5(2) of the Act and the sentence of six  months         rigorous imprisonment passed by the Special Judge, Bombay.         The  facts of the present case are more or  less  undisputed         and  are  the least complicated and,  therefore,  they  fall         within  a very narrow compass, and by and large we  have  to         examine  whether   or not the inferences drawn by  the  High         Court from the proved facts are legally correct and lead  to         only one hypothesis, namely, that the accused is guilty.           It  may. be necessary to give a resume of the  prosecution         case  before indicating the evidence and  the  circumstances         relied upon by the courts below in convicting the appellant.         The appellant was a senior officer in the Army, holding  the         rank  of  a Major, and was at the material  time  the  local         Purchase Officer, hereinafter to be referred to as LPO,  at         Ordnance  Depot at Talegaon Dabhade,  District Poona.   Fol-         lowing the Chinese attack in 1962 an Emergency was  declared         and  the Army required certain engineering tools to be  sup-         plied   immediately.  The Ordnance Depot, Jabalpur,  sent  a         requisition  of engineering tools to the Ordnance  Depot  at         Talegaon  Dabhade,  Poona.  In this connection  the  Control         Officer  of the Ordnance Depot wrote a letter to  the  Group         Officer  requesting him to despatch the stores  immediately.         The Group Officer consequently wrote a letter to the  appel-         lant  who  was the LPO at the relevant time to  arrange  the         supply of stores immediately. The appellant was directed  to         purchase the stores locally and to deliver them to the Group         Officer.   The  Group Officer also indicated in  his  letter         that the stores requisitioned by him were  not available  at         the Depot at Talegaon. The detailed list of the tools, while         is  at  Ext. 9, was received by the appellant on  March  27,         1963.   On the same day the Chief Ordance Officer passed  an         order enabling the LPO  to immediately purchase the tools on         cash purchase basis.           We might pause for a little while in order to explain  the         nature  of the order passed by the Chief  Ordnance  Officer.         It  appears that the normal procedure in the Department  was         that the LPO had to draw cash and then go to the market  and         purchase  the goods against cash.  But in view of the  Emer-         gency  and the immediate necessity of the tools this  proce-         dure  was waived and the appellant was permitted to buy  the         tools on covering purchase order basis; in other words,  the         appellant could himself purchase the tools without obtaining         the previous sanction of the Chief Ordnance Officer, and  on         receiving  the  bills from the supplier and  processing  the         same could get them sanctioned by the Chief Ordnance Officer         and then make the payment to the supplier. According to  the         prosecution the appellant, a day after he received the list,

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       Ext. 9, placed orders with Jayantilal Himatlal Shah, P.W. 2,         for supply of the tools.  It is not disputed that P.W. 2 was         one  of the contractors on the approved list of the  Depart-         ment, and still continues to be so.  P.W. 2 further  assured         the  appellant  that he would make the supply  as  early  as         possible, and that .he would do so at moderate rates. P.W. 2         accordingly procured .the articles from Bombay and delivered         the same in the Depot by April 6, 1963 along with his  bills         after which         535         the  bills  were placed before. the Chief  Ordnance  Officer         and   after sanction by him the payment was made to P.W.  2.         Apart  from engineering tools there was another  requisition         for  the supply of 900 dessert spoons.  The appellant  first         wanted  to place this order also with P.W. 2, but  he  found         that  his rate was a little higher than the rate  which  was         tendered to the Department sometime before, and,  therefore,         placed  orders with another firm of M/s  Devichand  Lalchand         Gandhi,  P.W. 11, and received 900 dessert spoons of  stain-         less steel from them.             Sometime in 1964, P.W. 18, an Inspector of Police in the         Office  of Special Police Establishment,   Bombay,  received         some   information regarding the appellant having  committed         an offence punishable under the Act on the basis of which he         recorded  the First Information Report on January 25,  1964.         Thereafter  he obtained the permission of the Special  Judi-         cial Magistrate for investigating the case  and   eventually         submitted  a  chargesheet against the appellant  before  the         Special  Judge,  Bombay, on April 28, 1966 as  a  result  of         which  the appellant was tried, convicted and  sentenced  by         the  Special Judge, and his appeal against the said  convic-         tion and sentence before the High Court failed.             The gravamen of the allegation against the appellant  is         that  although  the supplies were to be made as  quickly  as         possible the appellant made a deliberate departure from  the         normal  procedure  which was adopted in the  Department,  in         that  he followed the procedure of covering  purchase  order         basis  and placed orders with P.W. 2 a,lone  without  making         any  enquiries from the local market whether the tools  were         available there. It was also alleged that by placing  orders         with P.W. 2 the appellant caused P.W. 2 to earn a profit  of         45% and thereby caused wrongful loss to the Army Department.         It was further alleged that a number of firms in Poona  were         prepared  to  supply  the goods required at  a  much  lesser         profit  of  10 to 15 % and the appellant made  no  enquiries         whatsoever from these firms although some of them were  also         on  the  approved list of the Department.  On the  basis  of         these circumstances only the prosecution sought the  convic-         tion  of the  appellant.  The  appellant  pleaded  innocence         and  denied  that he had any intention  to  cause  pecuniary         benefit  to P.W. 2.  The appellant submitted that the  arti-         cles were very urgently required and as no time was left  he         had to act quickly and take immediate decisions.  It was for         this  purpose that the normal procedure was waived  and  the         Chief  Ordnance Officer permitted him to adopt the  covering         purchase  order  system. As regards the enquiries  from  the         local  market,  the definite case of the  appellant  in  his         statement under s. 342 of the Code of Criminal Procedure was         that he had in fact made enquiries from a few firms and  his         enquiries revealed that either the firms did not possess the         goods  themselves or that they were not dealers in  all  the         goods.  He further expressed his ignorance that P.W. 2  made         a profit of 45% and pleaded, on the other hand, that he  was         given  to  understand by P.W. 2 that the articles  would  be         supplied at moderate rates.  The appellant seemed to suggest

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       that as all  the articles required were not available in the         local  market  he thought it a prudent act to  place  orders         with a person who was in a position  to supply all the tools         required  at one stretch instead of running from one  dealer         to another for purchasing goods piecemeal, and as P.W. 2 was         prepared  to supply all the goods himself and he  was   also         on the 18--1546 SCI/76         536         approved  list  of dealers the appellant  decided  to  place         orders  with him. He made no secret of the fact because  all         the  higher officers, including the Chief Ordnance  Officer,         sanctioned the bills sent by P.W. 2.  The Trial Court, after         consideration  of  the evidence  and   circumstances,  found         that  the appellant had by corrupt means procured  pecuniary         benefit for P.W. 2 and caused wrongful loss.  The High Court         in appeal confirmed the finding of the Trial Court.         Normally  this Court in special leave against  a  concurrent         judgment of the High Court and the Trial Court does not  re-         appraise  the  evidence, but unfortunately in this  case  we         find that both the courts below have drawn wrong  inferences         from proved facts and have made a completely wrong  approach         to the whole case by misplacing the onus of proof which  lay         on  the prosecution on the accused.  Both the  courts  below         had proceeded on the footing that it was for the accused and         not  for  the  prosecution to prove that  the  accused  made         enquiries  from the local market or that he knew  about  the         rates,  etc.   This approach  was obviously  and  manifestly         wrong.  It is plain that it was for the prosecution to prove         the ingredients of s. 5(1) (d), which runs thus:                              "5(  1  ) A public servant is  said  to                       commit the offence of criminal misconduced.                           (a)....                           (b)....                           (c)....                           (d) if lie, by corrupt or illegal means or                       by  otherwise abusing his position  as  public                       servant, obtains  for himself or for any other                       persons any valuable thing or pecuniary advan-                       tage  ....  "         In other words it was for the prosecution to prove  affirma-         tively that the appellant by corrupt or illegal means or  by         abusing  his position obtained any pecuniary  advantage  for         some  other person.  In view of the clear defence  taken  by         the appellant it is obvious that it was for the  prosecution         to  prove  that  the accused made no  enquiries,  that   the         accused  made  a departure from the  normal  procedure  with         oblique motive, and that the accused knew that P.W. 2  would         make a profit of 45 % whereas others would be satisfied with         a  profit of 10-15%. The High Court, to begin with,  started         with  the presumption that the accused  led no  evidence  to         show that he made any enquiries. We might state at the .risk         of  repetition that it was not for the accused to prove  the         prosecution case but it was for the prosecution to  disprove         what the accused said, namely, that he had made   enquiries.         The   prosecution  could prove this fact only  by  producing         satisfactory  and convincing evidence to show that  the  ac-         cused  in fact made no such enquiries and he knew about  the         margin  of  profit which other dealers would have  made.  We         shall  immediately show that there is no legal  evidence  to         prove  this  fact.  What the courts below have  done  is  to         disbelieve  the  case  of the appellant because  he  led  no         evidence  to show that he made any enquiries  regarding  the         availability of goods or the rates, and therefore the courts         presumed that the accused had a dishonest intention.         537

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          In   the case of Narayanan Nambiar v. State of  Kerala(1)         this  Court  had  the occasion to consider  the  import  and         interpretation  of the words "corrupt or illegal means"  and         the word "abuse", as mentioned in s. 5 (1) (d).  Tiffs Court         observed thus:                             "Let us look at the clause "by otherwise                       abusing the position of a public servant", for                       the  argument  mainly  turns  upon  the   said                       clause.   The phraseology is  very  comprehen-                       sive.  It covers acts done "otherwise" than by                       corrupt or illegal means by an officer abusing                       his  position.  The gist of the offence  under                       this  clause is that a public officer  abusing                       his  position as a public servant obtains  for                       himself  or for any other person any  valuable                       thing or  pecuniary advantage.  "Abuse"  means                       mis-use i.e. using his position for  something                       for which it is not intended.  That abuse  may                       be  by corrupt or illegal means  or  otherwise                       than  those means.  The word  ’otherwise’  has                       wide  connotation  and  if  no  limitation  is                       placed  on it, the words "corrupt’,  ’illegal’                       and   ’otherwise’  mentioned  in  the   clause                       become surplusage, for on  that   construction                       every  abuse  of position is gathered  by  the                       clause. So some limitation will have to be put                       on  that word and that limitation is  that  it                       takes  colour from the preceding  words  along                       with  which it appears in the clause, that  is                       to say something savouring of dishonest act on                       his  part  ......  The juxtaposition   of  the                       word  ’otherwise’ with the words  "corrupt  or                       illegal means" and the dishonesty implicit  in                       the word "abuse" indicate the necessity for  a                       dishonest  intention on his part to bring  him                       within the meaning of the clause?’             We  are  satisfied that the judgment of the  High  Court         runs  counter to the principles laid down by this  Court  in         the case cited above, and the High Court does not appear  to         have  applied  that principle  in deciding the truth of  the         case presented by the prosecution against the appellant.  In         the  instant  case it is not alleged that the  accused   had         used  any corrupt or illegal means.  It has not  been  shown         that  the accused himself accepted any illegal gratification         or pecuniary benefit nor has it been shown that he  violated         any statutory rule  or  order. Thus, even on the prosecution         allegation  the case of the appellant falls only within  the         second  part of s. 5 (1 ) (d), namely, abusing his  position         as  public servant.  The abuse of position, as held by  this         Court,  must  necessarily  be dishonest so that  it  may  be         proved that the  appellant caused deliberately wrongful loss         to the Army by obtaining pecuniary benefit for P.W. 2.             After  having gone through the evidence referred  to  by         the  courts  below we think the  prosecution  has  miserably         failed to prove this fact. To begin with, the first  circum-         stance  relied  upon by the High Court is that  the  accused         made  a  deliberate departure from the  usual  procedure  of         purchasing  against cash. According to the prosecution,  the         procedure  was that the officer should have drawn cash  from         the  office and then he should have gone to the market  ’and         purchased the articles and         (1) [1963] supp. 2 S.C.R. 724, 730-731.         538         after having made the purchases he would obtain the sanction         of the Chief Commanding Officer. This procedure is known  as

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       "cash  purchase basis".  The accused, however,  adopted  the         procedure known as "covering purchase order", i.e., he  made         the  purchases  and got the bills sanctioned  by  the  Chief         Ordnance  Officer.  It is not disputed that in  the  present         case,  in  view  of the emergent  circumstances  the  Chief.         Ordnance  Officer  himself had allowed   the  appellant   to         make  the  purchases on the basis of cash purchase  and  had         himself sanctioned the bills tendered by the supplier,  P.W.         2.   All  the bills were paid to P.W. 2 by cheque.   It  was         contended by the State that in the instant’ ease the  appel-         lant had purchased these articles against cash and later  on         obtained the necessary  covering purchase  orders.  This  is         not  correct because the appellant had merely placed  orders         with  P.W. 2 for supply of goods and it was only  after  all         the goods had been supplied, verified and found correct that         the bills were forwarded to the Chief Commanding Officer for         sanction.  The High Court itself found that Lt. Col. Pun had         passed  an order directing the appellant as LPO to  purchase         all the articles against cash immediately.  In this  connec-         tion the High Court observed as follows:                              "Similarly,  it is not in dispute  that                       regarding the mode of purchase, Lt. Col.  Purl                       had  already  passed an  order  directing  the                       appellant  as Local Purchase Officer  to  pur-                       chase all the articles against cash immediate-                       ly."         Even  assuming  that the appellant  purchased  the  articles         against  cash he was doing so in compliance with the  orders         of  the Chief Ordnance officer and there was  absolutely  no         reason for the High Court or the Special Judge to have drawn         inferences against the appellant for violation of the proce-         dure  when the highest officer of the Depot  had  sanctioned         the procedure which was adopted by the appellant and had  in         fact  authorised him to do so in view of the Emergency.   It         may  be  necessary to refer to the evidence of P.W.  2,  Lt.         Col.  Des Raj (P.W. 10) who stated that a covering  purchase         order is sanctioned only when the Chief Ordnance Officer  is         satisfied that there are special circumstances which  neces-         sitate  the sanction of the purchase order after the  stores         are  purchased. It is not disputed that the  Chief  Ordnance         Officer  had issued a covering purchase order in this  case.         In these circumstances the best person who would have thrown         a  flood  of light on the subject and whose  evidence  would         have  clinched  the  issue whether or not  the  accused  was         authorised  to  depart from the normal  procedure  was  Col.         Anand,  the Chief Ordnance Officer, who though  examined  by         the Police during investigations was not produced before the         Court.  In  the absence of his evidence there was  no  legal         justification  for  the court to hold that the  accused  had         departed, from the normal procedure without the authority of         the Chief Ordnance Officer, particularly when it is admitted         that a covering purchase order was passed by the said  Offi-         cer  and  the bill was also finally sanctioned by  him.   In         these  circumstances,  therefore, the entire fabric  of  the         reasoning  of  the High Court as also that  of  the  Special         Judge falls to the ground.             Another circumstance on the basis of which the appellant         was  convicted was the fact that he made no  enquiries  from         the local suppliers, nor did he ascertain the rates. On this         question also the High Court, as well as the Special  Judge,         have misplaced the onus on the accused.         539         To  begin with, the accused has categorically stated in  his         statement  under s. 342, Cr.P.C., that he had in  fact  made         enquiries and had sent the Supply Clerk and one Deshmukh for

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       getting  the  rates  and find out whether  the  stores  were         available.  The prosecution could succeed only in the state-         ment  of the accused could be falsified and this  could  not         only  be  done if the prosecution had  examined  the  Supply         Clerk  who  was sent by the appellant or Deshmukh,  both  of         whom  were   employees  in the Army and  in  possession  and         control  of the prosecution,  and yet none of these  persons         were examined to falsify the statement of the accused.   The         High Court, on the Other hand, was in error when it observed         that  the  accused did not produce  either   the   clerk  or         Deshmukh  forgetting that it was not for the   accused   but         for   the prosecution to prove that what the  appellant  had         said   was  false.  Furthermore, reliance was placed by  the         High  Court and the Special Judge on the evidence  of  P.W.s         14, 15 and 16.  P.W. 14 does state that his firm was dealing         in  engineering tools and other articles and that he was  on         the  list of approved contractors of ,Ordnance  Depot.   He,         however, admitted that out of the articles required only  80         to 90 percent wet available with the firm.  In  cross-exami-         nation,   when asked about a particular type of  engineering         tool  the witness  was unable to state for what  purpose  it         was used.  The witness admitted that he did not maintain any         stock  register at the shop and the fact that  the  articles         were available was being deposed by him merely on the  basis         of his memory.  Finally, the witness admitted thus:                            "I  had  not gone to  Talegaon   Ordnance                       Depot to enquire whether any engineering tools                       were required in the    depot."         The  High Court seems to think that as this  witness’s  firm         was merely a retailor, therefore there was not necessity  to         keep  a stock register, The witness has nowhere stated  that         he  was  a retailer and not a whole  saler  and,  therefore,         there  was  absolutely no basis for the High Court  to  have         conjectured or speculated on this point in order to raise an         inference against the appellant.  On the other hand, in  the         absence  of any document, register or inventory to show  the         nature  of goods the firm of P.W. 14 was dealing in,  it  is         difficult to accept the ipsi dixit of the witness consisting         of  his bare statement based on pure memory that  the  engi-         neering  tools were available six years before the  date  he         was deposing.  Such evidence, in our opinion, is  absolutely         worthless.  In fact P.W. 18, the Inspector, has deposed that         in  the course of his investigations he had seized  the  ac-         counts and documents of the local firms, and yet no document         was produced by the prosecution to show that P.W. 14 in fact         had  in  his possession engineering goods  at  the  relevant         time.   Furthermore, the witness positively states  that  he         never  went to Talegaon Ordnance Depot  to  enquire  whether         any  tools were required.   It was also not put to the  wit-         ness whether the appellant personally or through one of  his         employees  had  approached him regarding the supply  of  the         goods.  In these circumstances, therefore, how possibly  can         an  inference  be drawn from his evidence that  the  accused         made no enquiries whatsoever when the accused had positively         stated  that he did.  Finally, on the question of  rates  or         margin of profit also, the witness makes         540         only  a verbal statement that he would have  charged  10-15%         which cannot be accepted in the absence of documentary proof         of the fact that the firm had sold these articles during the         relevant  time  to various persons and made   10-15%  profit         only.    It  is  manifest that if the firm was  carrying  on         such a huge  business then everything  must have been  writ-         ten  in  the account books which were in possession  of  the         Inspector  and yet not produced.   In  these  circumstances,

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       therefore, we are satisfied that the High Court misread  the         evidence of P.W.14.         Reliance was then placed on the evidence of P.W. 15,  Mahen-         drakumar, who is a partner of the firm known as ’C.  Ambalal         & Co.’  To  begin with, he clearly admits that his firm  was         dealing  in hardware, paints, sanitaryware and  only   files         amongst  the engineering  tools. The witness further  states         that  Out  of the articles mentioned in  the list,   Ex.  9,         only  files,  being items Nos. 75 to 94 and 96  to  99  were         available  with him and could be supplied by him.   He  does         not say that he was in a position to supply the other  engi-         neering  goods also. Again, the witness makes only a  verbal         statement  without any documentary proof that he would  have         charged  10-12%  of profit on the amount spent.  It  may  be         pertinent to note  here that the appellant in his  statement         under  s.  342, has positively asserted that  he   did  make         enquiries from the firm of Ambalal. Ambalal was examined  by         the  police  but not produced in court and  the  explanation         given was that he was ill.  That by itself is not a convinc-         ing explanation because the prosecution could have asked for         adjournment from the court to enable Ambalal to be  examined         as a witness for he alone could have falsified the statement         of the accused whether or not any enquiry was made from him.         Finally, this witness himself states:                             "I do not remember whether I was present                       when  the  list, Ex. 9, was shown  to  Ambalal                       when his  statement  was recorded."         The  evidence of this witness, therefore, does  not  exclude         the  possibility of the accused having made  enquiries  from         Ambalal and  the accused has in fact explained in his state-         ment  that no orders could have been placed with  this  firm         because  he  was only in a position to  supply  files  which         formed  a  very  small component of  the  engineering  goods         required.   In  these circumstances,  therefore,  the   evi-         dence,  of  P.W. 15 does not falsify the  statement  of  the         accused  that he made enquiries from this firm but,  on  the         other hand, goes to support it. The High Court has  observed         that if the appellant had made enquiries from P.W. 15,  then         he would have undoubtedly remembered this fact. This process         of  reasoning appears to us to be absolutely perverse.  When         the witness himself does not remember whether the  appellant         had  made  any enquiries in his presence  then  the  natural         inference would be that he does not exclude the  possibility         of the appellant having made an enquiry, and in the  absence         of  the  examination of Ambalal it cannot be said  that  the         statement of the accused was false.         The  next evidence on which reliance was placed was of  P.W.         16,  Taharbhai.  This witness clearly admits that he had  no         engineering  goods  in his stock and if an  order  had  been         placed he could  have         541         supplied  them  by procuring them from  somebody  else.   In         these  circumstances he was in the same position as P.W.  2.         This witness further admits that out of the list, Ex.9, only         files  and  drills  were available, but the stock  of  these         articles  was  scanty.  He again orally says that  he  would         have  charged a  profit of  15%.  This  witness admits  that         he  does not remember whether the appellant had come to  his         shop on March 27, 1963 to enquire about the availability  of         the  goods and the rates of engineering tools.  It was  sug-         gested  to  him  that enquiries were made from  him  by  the         appellant  and  he said, that the tools were  not  available         with  his firm.  The evidence of this witness  also  suffers         from the same infirmities as are to be found in the evidence         of P.Ws. 14 and 15.  He has not produced the stock  register

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       nor any document or accounts or inventories to show that  he         had  all  the goods required.  His statement  further   does         not   exclude   the possibility of the accused  having  made         enquires  from  him,  or at any rate does  not  falsify  the         statement of the accused. As regards  the margin of  profit,         that  is also ipsi dixit without any basis and is  not  sup-         ported by his account books.             It  seems  to us that before a presumption  against  the         accused could be raised that he knew that other firms  would         have  charged  a much lesser profit than P.W.2,  it   should         have  been proved  by the production of account books of the         firms concerned and their dealings during the relevant  time         that they had sold similar of identical goods and made  only         a  profit of 10-15%.  The verbal statement of the  witnesses         regarding  the margin of profit which they would  have  made         had orders been placed six years back can carry no weight.             This  is all the evidence on the basis of  which  infer-         ences  against the appellant have been drawn.  After  having         gone through  the evidence we are satisfied that the  prose-         cution has not produced any reliable or conclusive  material         to  prove that the appellant had any dishonest intention  in         causing  pecuniary benefit  to P.W. 2.  Even  assuming  that         the  accused departed from the normal procedure  in view  of         the urgent necessity of the articles it cannot be said  that         this was done with a corrupt or oblique motive.  The  appel-         lant  had been asked. by the Jabalpur Depot to supply  these         articles  immediately. The appellant, therefore, had t6 take         a  quick  decision and he  was authorised to do  so  by  his         Chief.   Since P.W. 2 was prepared  to supply all the  goods         in  bulk  at one stretch the appellant may have  thought  it         better to place the orders with him.  May be, that this  was         an  error  of judgment or an act of indiscretion,  but  from         that  alone an inference of dishonest intention  cannot   be         drawn.  Moreover, P.W l0 has clearly stated thus:                              "I  had no reason to doubt the  honesty                       or sincerity of the accused during the  period                       he was serving under me."         This would show that the appellant was really an honest  and         sincere officer and his antecedents were good.  Against this         background we should have expected much better  and superior         evidence  to  justify inference of the accused  having  been         animated  by  a dishonest intention in placing  orders  with         P.W. 2.         542             There  is  yet  one more  intrinsic  circumstance  which         negatives the guilt of the accused.  Although the  appellant         had given orders with respect to all the articles to P.W. 2,         yet  when he found that P.W. 2 was charging higher rate  for         the dessert spoons he did not place orders for the same with         him but placed the orders with P.W. 11, who supplied at  the         rate  of Re. 1/- per spoon which was less than the  rate  at         which  P.W.  2  was ready to supply.  This  shows  that  the         appellant  did  take due care and caution and  did  not  act         blindly. There is absolutely no legal evidence on the record         to  show as to what was the nature of the margin  of  profit         which  the  firms  of P.Ws. 14, 15 and 16 had  made  if  the         orders had been placed with them, and in the absence of such         an evidence the court would not be justified in holding that         the accused abused his position in causing  pecuniary  bene-         fit  to P.W. 2.  The appellant had admitted that if  he  had         known  that P.W. 2 would have charged such a high profit  he         would have been more careful.             On  the other hand, what appears to us to be  most  sur-         prising is that although P.W. 2 was the sole beneficiary  of         the whole transaction and had, according to the prosecution,

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       made  profit of 45% and was, therefore, in the nature of  an         accomplice,  yet he continues to be on the approved list  of         the  departmental  suppliers even on the date  when  he  was         giving evidence.  Such a conduct on the part of the  depart-         ment  can only be consistent with the innocence rather  than         the.  guilt of the accused.  If the  prosecution  allegation         was  true   that P.W. 2 through his business  influence  ob-         tained the  order  in  his favour, then before the  prosecu-         tion  was started against the appellant, P.W. 2 should  have         been  blacklisted.  But this was not done.  The  High  Court         appears  to  have been led away by the impression  that  the         appellant  had  personal relations with P.W.  2.  There  is,         however,  no such evidence on record and P.W. 2 himself  has         categorically  stated that his relations with the  appellant         were  purely  business  relations as he used  to  visit  the         office in connection with the supplies off and on.  In these         circumstances, therefore, if P.W. 2 was not suspected by the         prosecution for having received huge pecuniary benefit  much         less could the blame lie on the appellant.             In these circumstances, even if there was some amount of         carelessness  or negligence on the part of the appellant  it         is impossible to doubt his bona fides.  He acted as a produ-         ent  person  and  tried to get the supplies  as  quickly  as         possible  with  the result that all  the  gods  required  by         Jabalpur Depot were supplied within two weeks.             A careful analysis of the evidence and the circumstances         would,  therefore, show that the approach of the High  Court         was clearly         543         wrong  and that the inferences drawn by the High Court  were         not  at all warranted by the circumstances and facts  proved         in the case.  The entire charge against the appellant rested         on circumstantial evidence and the prosecution has failed to         prove  that  the circumstances  were such as  could  be  ex-         plained only on one hypothesis, namely, that the accused was         guilty.             For  these  reasons, therefore, the appeal  is  allowed,         judgment  of  the High Court set aside  and  conviction  and         sentence imposed on the appellant are hereby quashed, and he         is acquitted of the  charge framed against him.         M.R.                                       Appeal allowed.         544