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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: NAKULA SAHU & ORS

DATE OF JUDGMENT30/11/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KAILASAM, P.S.

CITATION:  1979 AIR  663            1979 SCR  (2) 442  1979 SCC  (1) 328

ACT:      Code of Criminal Procedure, 1898 - Sections 435 and 439 Scope of jurisdiction of High Court in revision.

HEADNOTE:      The respondents  in  each  of  the  four  appeals  were convicted and  sentenced  under  s.  409  IPC  by  the  Sub- Divisional Magistrate. On appeal the Sessions Judge affirmed the  conviction   and  sentences  passed  against  them.  In revision the  High Court  set aside the judgments and orders passed by  the  trial  court  and  the  Sessions  Court  and acquitted the respondents of all the charges.      On the  question of  (i) the  scope  of  the  power  of revision of the High Court under s. 439 read with s. 435 Cr. P.C. 1898 and when it should be exercised; and (ii) whether, in arriving at a concurrent finding, the trial court and the Sessions 1  judge committed  a manifest  error on a point of law which had resulted in flagrant miscarriage of justice.      Allowing the appeal, ^      HELD: (1)  Although the  revisional power  of the  High Court under  s. 439 read with 9. 435 of the Code of Criminal Procedure, 1898  is as  wide as the power of Court of Appeal under s. 423 of the Code, it is well settled that normally y the jurisdiction  of the  High Court  under s.  439 is to be exercised only  in exceptional cases when there is a glaring defect in  the procedure  or there  is a manifest error on a point of  law which  has consequently  resulted in  flagrant miscarriage of  justice. In Akalu Ahir v. Ramdeo Ram, [1973] 2 SCC 583 this Court held that in spite of the wide language of s. 435 Cr. P.C. 1898 which empowered it to satisfy itself as  to  the  correctness,  legality  or  properiety  of  any finding.  sentence  or  order  recorded  or  passed  by  any inferior court situate within the limits of its jurisdiction and as  to regularity  of any  proceeding of  such  inferior court and in spite of the fact that under s. 439 of the Code it can  exercise, inter alia, the power conferred on a Court of appeal  under s.  423, the  High Court is not expected to act under  s. 435  or s.  439 as if it is hearing an appeal. The  power  being  discretionary  it  has  to  be  exercised judiciously  and   not  arbitrarily   or  lightly.  Judicial discretion  means   a  discretion  which  is  in  formed  by

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tradition, methodised  by analogy and disciplined by system. [447H; 448A-B]      Amar Chand  Agarwalla, v.  Shanti  Bose  &  Anr.  etc., [1973] 4  SCC 10  and Akalu Ahir v. Ramdeo Ram, [1973] 2 SCC 583 followed.      (2) Neither  the trial  court nor  the  Sessions  Court committed any  error of  fact or of law in arriving at their conclusions  and   the  High  Court  misdirected  itself  in upsetting  their   concurrent  findings  ignoring  the  well recognised  principles   for  the   exercise  of  revisional jurisdiction. From  the material  on record it is clear that the offences  with which  the respondents  were charged were brought home to them beyond reasonable doubt. [456E] 443

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeals Nos. 25-28 of 1972.      Appeals by  Special Leave  from the  Judgment and Order dated the  9th December,  1970 of  the Orissa  High Court in Crl. Rewn. Nos. 188, 190, 191 and 192 of 1968.      D. Mukherjee, G. S. Chatterjee for the Appellant.      Pishori Lal  Arora (Not Present) for Respondent in Crl. A. No. 25/72.      Frank Anthony,  (Crl. A.  26/72), Har Dayal Hardy (Crl. A. 27-28/72),  Mrs. S.  Bhandare, A.  N. Karkhnis  and  Miss Malini Peduvel in Crl. A. Nos. 26-28/72 for Respondents.      The Judgment of the Court was delivered by      JASWANT SINGH,  J.-By  his  judgment  and  order  dated November  30,   1965,   the   Sub   Divisional   Magistrate, Bhubaneswar convicted  Gopinath Patra,  respondent in Appeal No. 26  of 1972  under section  409 of the Indian Penal Code and sentenced  him to  two years rigorous imprisonment and a fine  of   Rs.  2,000/-.  By  the  same  judgment.  the  Sub Divisional Magistrate also convicted Nakula Sahu, respondent in Appeal  No. 25  of 1972, Brahmananda Misra, respondent in Appeal No.  27 of  1972 and  Niranjan  Naik,  respondent  in Appeal No.  28 of  1972 under  section 409 read with section 109 of  the Indian Penal Code and sentenced each one of them to two years rigorous imprisonment and a fine of Rs. 2,000/- . By  the same  judgment, the Sub Divisional Magistrate also found all  the four  respondent guilty  of the offence under sections 120B  of the  Indian Penal  Code but in view of the fact ’that they were found guilty of the offence of criminal breach of  trust for which they had entered into conspiracy, no separate  sentence was  awarded to them for that offence. By the same judgment and order the Sub Divisional Magistrate acquitted Nakula Sahu of the charge under section 420 of the Indian Penal  Code. On  appeal, the  Sessions Judge, Cuttack upheld  the  judgment  and  order  of  the  Sub-  Divisional Magistrate and  affirmed the  conviction and sentence of the respondents by  his judgment and order dated May 1, 1968. On the matter being taken in revision before it, the High Court of Orissa  set aside  the  aforesaid  judgments  and  orders passed by  the  trial  court  and  the  Sessions  Judge  and acquitted the  respondents of  all the charges by its common judgment and  order dated  December 9, 1970. [t is M against this judgment and order that the aforesaid appeals have been filed by special leave. 444      The facts  giving rise to these appeals are: During the year 1961-62,  the Public  Health Department  had  a  budget provision of Rs. 1,95,420/- for purchase of wash hand basins

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and other sanitary fittings required for four items of work. Though as  Controlling Officer, the Superintending Engineer, Public Health  Department was  required under  the financial Code to  watch the expenditure against the budget allotments Of the  circles under  him, it  was the  Executive Engineer, Public Health Department, who was the drawing and disbursing officer for the aforesaid budget provision of Rs. 1,95,420/- and  was   responsible  for   any  wastage   or  excess   of appropriation. At  the request  of the  Executive  Engineer, Public Health Department, Bhubaneswar, Lingaraj Das (P.W.7), the then  Public Health  Engineer,  Orissa  issued  circular letter C(Exh.1)  dated September 30, 1961 to several dealers in sanitary  goods inviting  quotations for  supply of 2,000 best Indian  make earthen  ware wash  hand basins with white glazed, straight  front, smooth  top, and  one tap  hole and waste holes.  In response  to the  said  invitation,  twelve firms including  the Cuttack Plumbing Stores of which Nakula Sahu, respondent was the proprietor submitted their tenders. In his  tender (Exh.  2), Nakula  Sahu quoted  the following rates: -           1.   Wash Hand Basins 22" X 16" Barang make First                Quality:                      Rs. 70/- each           2.   Wash Hand  Basin 22" X 16" Barang make Second                Quality:                      Rs. 58/- each      On the comparative statement (Exh. 33 of the quotations received in  response to the aforesaid circular letter being put up  before him,  P.W.7 accepted  the  quotation  of  the Cuttack Plumbing Stores for supply of 1000 22" X 16", Barang make, First  Quality, wash  hand basins vide Exhibit 3(4) at the rate of Rs. 70/- per wash hand basin plus sale tax at 7% which  meant  that  the  basins  should  be  free  from  all manufacturing defects  like dents,  fire cracks,  warpage or other undulation on the surface etc. Under Exhibit (4) dated October 13,  1961, the  Cuttack Plumbing Stores was asked to supply the  wash hand  basins to the sub Divisional Officer, Project  Sub   Division  No.  1  and  submit  the  bills  in triplicate  to   the  Executive   Engineer,  Public   Health Department, Bhubaneswar  for payment.  Under  Exhibit  4(4), copies of  the aforesaid  order (Exh.  4) were  forwarded to Gopinath Patra, respondent and Brahmananda Misra, respondent the then  Executive Engineer  and  Sub  Divisional  Officer, Project No.  I Sub  Division, Bhubaneswar  respectively  for information and  necessary action.  The supplies  were to be received by the Overseer, Niranjan Naik, who was the Section Officer, according  to the specifications noted in the order of supplies.  Pursuant to  work order (Exh. 5), Nakula Sahu, proprietor of the 445 Cuttack Plumbing  Stores supplied  1000 wash  hand basins in three   instalments representing them to be of first quality Barang  Make  and  submitted  bills  in  regard  thereto  as detailed below: ------------------------------------------------------------ No. Of the wash Date of supply Exh. No.Of Amount of the Bill hand basins supplied           the bill accord-                                ing to which                                payment                                demanded ------------------------------------------------------------       494       27-10-1961         19   Rs.       37,000.60       400       13-11-1961         22   Rs.       29,960.00       106       3-1-1962           25   Rs.        7,939.40 ------------------------------------------------------------      On  receipt  of  the  supplies  at  the  Public  Health Department  Store,   Niranjan  Naik,   respondent,  who  was

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incharge of  Store, took  delivery thereof  and entered  the same in  the Measurement  Book certifying  therein that  the supplies were  according to the specifications of the order. thereafter respondent,  Brahmananda  Misra,  Sub  Divisional Officer checked the supplies according to the specifications in the supply order and signed the Measurement Book in token of the  fact that  the supplies  had  been  correctly  made. Simultaneously with  the  supplies,  Nakula  Sahu  submitted running bills  on behalf  of the  Cuttack Plumbing Stores on each of  which Niranjan  Naik, Section  Officer appended the following certificate:-           "Verified the  materials received  on .. and found      correct, entered  in M.B.  (Measurement Book) No.......      in Page  ............ Taken into stock A/C in (Date and      Year)."      Underneath the  certificate of  Niranjan Naik,  Section Officer Brahmananda  Misra Sub  Divisional Officer  appended his certificate  and signed  the same.  Therefore, the bills were checked  in the  office of  the Executive  Engineer who made the payments by means of the cheques.      On November  16, 1961 i.e. after the first two supplies but before  the third supply, Lingaraj Das (P.W.7) addressed confidential  communication   (Exh.  6)  to  Gopinath  Patra hinting to him that according to the information received by him the  supplies made  by Nakula Sahu were not according to the specifications  in the  supply order  but were  of lower class and  requiring him  to ’verify the quality of each and every wash hand basin and to give a certificate if they were of first  class  quality as per specification in the tender. By means  of the  aforesaid  confidential  letter,  Gopinath Patra was also told to submit a detailed 446 report about the quality of the wash hand basins within four days in case he found that they were not of first quality as per specifications  in the  tender. Gopinath  Patra was also asked to intimate the number of wash hand basins supplied by the Cuttack  Plumbing Stores  and the  amount paid to it. As Gopinath  Patra   did  not   comply   with   the   aforesaid communication within  the aforesaid  time, P.W. 7 sent him a reminder to  expedite  the  reply  but  it  was  not  before December 9  1961 that  the former  sent the  reply (Exh.  7) certifying that 894 wash hand basins which had been supplied by then  by the  Cuttack Plumbing  Stores were  all of first quality. By  means of  Exhibit (7),  Gopinath Patra  further informed the Public Health Engineer, Orissa that the Cuttack Plumbing  Stores   had  so  far  been  paid  Rs.  66,960.60, including sales tax, for the aforesaid 894 wash hand basins. On December  19, 1961,  P.W. 7  placed order  (Exh. 5)  with Cuttack Plumbing  Stores for further supply of 500 wash hand basins of  the aforesaid quality and make at the rate of Rs. 68/-  per  basin  to  be  delivered  to  the  Public  Health Department’s  Godown  at  Bhubaneswar  and  sent  intimation thereof to Gopinath Patra. Accordingly, Nakula Sahu supplied 50 wash hand basins on January 4, 1962, 410 wash hand basins on October  1, 1962  and 40  wash hand basins on October 14, 1962 and  submitted bills  (Exhibits 29,  32 and 35) for Rs. 3,638.00, Rs.  29,831.60 and  Rs. 2,910.40  respectively. On these three  bills also,  Brahmananda Misra,  Sub Divisional Officer  and   Niranjan  Naik,   Section  Officer   appended certificates similar  to those  which they  had given on the previous bills.  On the  basis  of  the  said  certificates, running account  bills were  prepared and signed by Gopinath Patra, Executive  Engineer, and payments were made to Nakula Sahu. On  March 28,1963, the Inspector of Police, Vigilance, Cuttack seized  vide seizure  Memo (Exh. 73) from the Public

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Health Godown  Bhubaneswar, of  which Niranjan Naik, Section Officer was  incharge, 593  Barang  Make  wash  hand  basins alleged to  have been  supplied to  the  Department  by  the Cuttack Plumbing  Stores and  A.B. Ghosh  (P.W.8), Executive Engineer, Stores  Verification  Division,  attached  to  the Works Department  inspected these basins under the orders of the Secretary,  Works and Transport Department and submitted his report  (Exh. 49)  dated September  9/13,1963  enclosing therewith statements  (Exhibits 50  and 51)  containing  his remarks in  respect of  each and  every one  of  593  basins examined by  him. In  his report  (Exh. 49) A.B. Ghosh inter alia stated:  "Not a  single basin of first quality could be found  during   verification.  Three  type  of  basins  with manufacturer marks  II and  III class  and with no marks are found.  All   the  basins  which  have  been  verified  have different types  of defects  as noted against each number in the enclosed statements. In several cases major defects have been noticed  in all  the type  of basins  and the nature of major 447 defects have  also been  noted in the statements." Thereupon the.  authorities made an inquiry from M/s Orissa Industries Ltd. Barang  (Producers of  the Basins)  which revealed that the  Cuttack   Plumbing  Stores   had  during   its   entire transactions with  the former  purchased  only  three  first quality wash  hand basins  and the  rest of  the  wash  hand basins purchased  by it  by auction  or otherwise  from  the Company and  dishonestly  passed  not  to  and  accepted  by respondents, Niranjan  Naik, Brahmananda  Misra and Gopinath Patra as  first quality  wash hand basins were either second quality or rejected ones which did not at all conform to the specifications mentioned  in the  tender quotations (Exh. 23 and  the   supply  order  (Exh.  4).  On  these  facts,  the respondents were  charged with  and  proceeded  against  for commission  of  various  offences  of  criminal  conspiracy, abetment of and commission of the offence of criminal breach of trust  in respect of a sum of Rs. 1,11,280/- entrusted by the State to Gopinath Patra, respondent for purchase of best quality wash hand basins with the result as stated above      In these  appeals, it has been urged by counsel for the State of  Orissa that  the facts and circumstances proved in the  case   are  incompatible  with  the  innocence  of  the respondents  and   are  incapable   of  explanation  on  any hypothesis other  than the  guilt of the respondents for the offences with  which they were charged and that the order of their acquittal  passed by  the High  Court in  exercise  of revisional jurisdiction  which as acknowledged by this Court is a  limited one  has resulted in grave failure of justice. On the  other hand, it has been contended by counsel for the defence that there is no infirmity in the impugned order and the High Court was justified in acquitting the respondent in exercise of  its plenary revisional power as the material on record was not sufficient to sustain their conviction      On the  submission of  counsel  for  the  parties,  two principal points arise for consideration by us (1) the scope of the power of revision under section 439 read with section 435 of  the Code  of Criminal  Procedure, 1898  and when  it should  be   exercised  and   (2)  whether  in  arriving  at concurrent findings,  the trial court and the Sessions Judge committed any  manifest error  on a  point of  law which had resulted in flagrant miscarriage of‘justice.      So far  as the  first point  is concerned,  it is to be emphasized that  although the  revisional power  of the High Court under section 439 read with section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of

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Appeal under section 423 of the Code, it is now well settled that normally  the jurisdiction  of  the  High  Court  under section 439  is to  be exercised  only in  exceptional cases when 448 there is  a glaring  defect in  the procedure  or there is a mainfest error  on a  point of  law which  has  consequently resulted in  flagrant miscarriage  of justice.  Reference in this connection  may be  made to the decisions of this Court in Amar  Chand Agarwalla  v. Shanti  Bose & Anr. etc.(1) and Akalu Ahdr  v. Ramdeo  Ram(2), In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court follolwing its earlier decision in  Amar Chand  Agarwalla v. Shanti Bose & Anr etc. (supra) held  that in  spite of the wide language of section 435 of  the Code of Criminal Procedure, 1898 which empowered it to  satisfy itself  as to  the  correctness  legality  or propriety of  any finding,  sentence or  order  recorded  or passed by  any inferior  court situate  within the limits of its jurisdiction  and as to the regularity of any proceeding of such  inferior court  and in spite of the fact that under section 439 of the Code it can exercise inter alia the power conferred on  a court  of appeal  under section  423 of  the Code, the  High Court  is not  expected to act under section 435 or  section 439 as if it is hearing on appeal. The power being discretionary,  it has to be exercised judiciously and not arbitrarily  or lightly.  Judicial  discretion,  as  has often been  said, means  a discretion  which is  informed by tradition, methodised by analogy and disciplined by system.      This takes us to the consideration of the second point. In relation  to this  point, it may be observed that nothing has been  brought to our notice on behalf of the respondents to indicate  that  there  was  any  glaring  defect  in  the procedure adopted  by the  lower courts  or that there was a manifest error on a point of law in the judgments and orders passed by them which had resulted in flagrant miscarriage of justice which needed to be set right by the High Court.      A scrutiny  of the  evidence which  we have made at the request  of  the counsel  for the  parties shows  that there was not even any  misappreciation of  evidence on  the record by the lower courts  which could  be said to have resulted in gross failure of  justice  warranting  interference  by  the  High Court.      We may  at this  stage indicate that while adverting to the evidence,  we shall  be confining  ourselves to the case against Gopinath  Patra and  Niranjan Naik,  respondents  in Appeals Nos.  26 and  28 of  1972 respectively, as the other two appeals  Nos. 25  and 27 of 1972 against Nakula Sahu and Brahmananda Misra  have abated due to their death during the pendency of the appeals in this Court.      Out of  the 17 witnesses examined by the prosecution to bring home  the aforesaid  offences to  the respondents, the evidence of      (1) [1973] 4 S.C.C 10.      (2) [1973] 2 S.C.C. 583. 449 P. Ws. 2, 14, 5, 7, 8, 11, 12, 13, 15 and 17 deserve special mention.      P. P.  Bahuguna (P.W.  2) who  is the  Sales Manager of Orissa Industries  Ltd., Barang, since 1956 has deposed that accused Nakula  Sahu used  to  transact  business  with  his Company as  proprietor of  N. C.  Sahu &  Sons  and  Cuttack Plumbing Stores;  that detailed  entries showing  the  date, invoice No.  and total bill amount of every sale effected by his Company  are made  in the  Sales Day Book, cash book and

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ledger  of   the  Company   and  that  in  the  ledger,  the transactions  with  different  customers  are  mentioned  in separate folios.  The witness  has by reference to copies of invoices existing on file No. C. 157 (Exh. 11) consisting of 391  pages   containing  the  record  relating  to  all  the transactions of  Orissa Industries  Ltd.  with  the  Cuttack Plumbing Stores  and Nakula Sahu & Sons and ledgers [Exh. 12 to 12(4)]  evidencing all  transactions  with  Nakula  Sahu, Cuttack Plumbing Stores and N. C. Sahu & Sons and containing cross references  to invoices  testified that it was for the first time  in June 8, 1959 that the Cuttack Plumbing Stores purchased three  wash hand  basins 22"  X  16"  of  Class  I quality from  his Company; that from June, 1961 to February, 1962, the  Cuttack Plumbing  Stores purchased  1704 Class II and 300 Class III wash hand basins 22"X16" from his concern; that apart  from these sales there has been no other sale of wash hand  basins to accused Nakula Sahu or Cuttack Plumbing Stores  or   N.  C.  Sahu  &  Sons;  that  Nakula  Sahu  was transacting business  with his Company in respect of all the aforesaid invoices;  that in  the years  1961 and  1962, the price of  class I wash hand basin 27’’X16 was about Rs. 53/- per piece  and price  of Class  II and  Class III  wash band basin 27’’X16’’  was about  Rs. 38.50 and Rs. 23/- per piece respectively; that glass and ceremic products became subject to Central  Excise duty  for the first time with effect from the mid-night  of February  28,1961 and  that from that date marking of  gradations by stamp and indelible ink were given on wash  hand basins produced by his Company; that wash hand basins produced  by his Company are marked with rubber stamp as 1st,  or 2nd  or Com.  Or 3rd  according to the different gradations of  the products;  that in  some cases,  the wash hand basins  are marked  as I, II, Com., or Ill, in place of 1st,  2nd,  Com.  Or  3rd  respectively;  that  of  all  the gradations 1st or I are the best quality; that first quality products are  those which  have no  blemish; that the second quality  basins  are  those  having  minor  defects  without affecting their utility; that the third quality products are those having major defects either affecting or not affecting their utility;  that by II submitting quotations his Company had made known to the Government Departments that there were wash hand basins of different 450 gradations in  his concern; that the gradation marks 011 the wash hand basins made by his concern are the surest guide to the customers  regarding the  quality of  goods. The witness has further  affirmed that  during the  years 1961  and 1962 i.e. from  February 28,  1961 to the end of 1962, only 70 to 80 first quality i.e. Class I wash hand basins were produced by his  Company and were stamped as such; that from February 28, 1961  to the  end of  February, 1962  only 54;  Class  I (first quality)  wash hand basins 22’’X16’’ were produced by his Company;  that in  November, 1961 and December, 1961, no First quality  wash hand  basins were  manufactured. in  the factory of  his Company and that though his Company has been attempting to produce first quality wash hand basins, it has not succeeded in producing them in large numbers.      K. L.  Sigtia (P.W.  14) who  is the  Secretary, orissa Industries Ltd.,  Barang, since  1951 has  corroborated  the statement of  P.  P.  Bahuguna  (P.W.  2)  in  all  material particulars with  regard to  all the  business  transactions made by his Company with the Cuttack Plumbing Stores, Nakula Sahu and  M/s Nakula  Sahu &  Sons including  200 numbers of wash hand  basins 26"X16"  which as per invoice 1] (24) were sold in  auction by  the Company  to  the  Cuttack  Plumbing Stores at  Rs. 15/-  per piece.  He has also stated that the

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wash hand  basins produced  in his factory prior to March 1, 1961 (when  the  Central  Excise  duty  was  levied  on  the potteries including  the wash  hand basins)  were sorted out and stocked separately according to their grades; that after the introduction of excise duty, his Company graded the wash hand basins  into there classes viz. First, Second and Third and the  markings were given on the said wash hand basins as l, II  or III according to the gradations as directed by the Central Excise  office; that  after six  months, the  Excise staff told them to change the markings as 1st, IInd or IIIrd according to  the aforesaid three gradations and accordingly for first  grade, they  gave marking  1st, for second grade, they gave  marking IInd  and  for  third  grade,  they  gave marking IIIrd  and that  ’Orissa’ is the trade mark of their firm. The  witness has  by reference  to file  Exhibit  (ll) affirmed that  it was  on June  8,  1959  that  the  Cuttack Plumbing Stores for the first time purchased three 22" X 16" wash hand  basins for  ’first quality  from his concern vide Exhibit 11  (2) which  bears the  signature of  Nakula Sahu; that during  the period  1959 to  1962 Nakula Sahu or Nakula Sahu &  Sons or Mis Cuttack Plumbing Stores did not purchase any wash hand basins from his Company’s factory except those entered in Sales Day Book [Exh. 65 to Exh. 65 (18) ]. He has further affirmed that his Company does not produce any wash 451 hand basins  called the  best quality  wash hand basins. The witness A;  has denied that his concern ever sold any second class wash  hand basins  representing them  to  be  of  best quality.      Nabaghan Misra  (P.W. 5)  who is  the Head Clerk in the office of  the Executive Engineer, Public Health Department, Bhubaneswar has  stated that  on receipt of copy of the work order, The concerned Executive Engineer of the Public Health Department  directs   his  subordinates   to   receive   the commodities; that  after the  commodities are  supplied, the suppliers submit  their bills  to the authority who receives the commodities.  Ultimately, the  Executive Engineer of the concerned Division  makes payment by cheques. He has further stated that the commodities supplied are physically received by the  Overseer who is the Section Officer of the concerned Division; that  the Section  Officer is  required to receive the supplies  according to  the specifications  noted in the order for  supply, to  enter the commodities received by him in the  Measurement Book  and to  give a certificate in that book that  the supplies  are according to the specifications of  the order; that thereafter the Sub Divisional Officer of the Division  has to-  check the  supplies with reference to the  specifications   given  ill   the  order  and  put  his signatures in the Measurement Book; that the stock registers of the supplies received are maintained in the office of the Sub Divisional  Officer; that  Section Officer  and the  Sub Divisional Officer  endorse certificates  on the order as to the  correctness   of  the   supplies  in   terms   of   the specifications in  the order;  that thereafter  the bill  is checked in  the office  of the  concerned Executive Engineer and after payment order is made by the Executive Engineer on duplicate  voucher  prepared  by  the  Section  Officer  and countersigned by the Sub Divisional Officer, payment is made by cheque  issued by the Executive Engineer; that Exhibit 19 is the  bill for  Rs.  37,060/-  submitted  by  the  Cuttack Plumbing Stores  of which  the accused  Nakula Sahu  is  the proprietor, in  respect of  the supply  of wash hand basins, 494 in  number of  the specifications  and quality mentioned therein; that  the corrections  in ink  arc made  by accused Niranjan Naik,  the then  Section Officer and are initialled

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by him;  that the  endorsement and  the certification at the bottom are  in the  writing of the accused Niranjan Naik and contain his  signature dated  October  28,  1961;  that  the corrections in  the  endorsement  have  been  initialled  by accused Niranjan  Naik;  that  Exhibit  20  is  the  running account bill  prepared in  the office  of Niranjan Naik, the then Section Officer in relation to Exhibit 29 and bears the signatures of  both Niranjan  Naik, Overseer and Brahmananda Misra,  Sub   Divisional  Officer.   The  witness  has  also identified the signature and initial of the accused Gopinath Patra on Exhibit 20(4) and has stated that alter compliance 452 with all  the formalities,  cheque for  the aforesaid amount was made  over to  accused Nakula  Sahu on October 28, 1961. The witness  has likewise  proved bills (Exhibits 22 and 25) ill regard  to payment  of Rs.  29,960/-  and  Rs.  7,939.40 respectively.      Lingaraj  Das  (P.W.  7)  who  was  the  Public  Health Engineer and  also the  Controlling Officer  of  the  Public Health Department  during the  relevant time has stated that on receipt  of the  quotations called by him vide Exhibit 1, he accepted  the quotations  of the  Cuttack Plumbing Stores and placed  an order  (Exh. 4) with the latter for supply of wash hand basins of the make, specifications and quality and at the rate and on the conditions noted therein. The witness has also  proved the  aforesaid letter (Exh. 6) addressed by him to  Gopinath Patra  and the reply (Exh. 7) received from the latter  certifying that  894 wash  hand basins  were  of first quality.  He has further stated that by first quality, he meant  that the  wash hand  basins should  be without any manufacturing defects.      A. B.  Ghosh (P.W. 8) who has passed the examination in Sanitary Engineering  and Water  Supply as a special subject has stated  that  he  was  working  as  Executive  Engineer, Verification Officer,  for all  departments under the Public Works  Department;  that  under  orders  of  the  Secretary, Sanitary Works  Department, he  inspected and  verified  593 numbers of  "Orissa" 22"  X 16" wash hand basins supplied by accused Nakula  Sahu and  stocked inside  the Public  Health Department Godown  at Bhubaneswar, the key of which was with accused Niranjan  Naik; that the inspection and verification was commenced  by him  on August  30, 1963  and completed on August 31, 1963 in the presence of accused Niranjan Naik who pointed out  the 593  wash hand  basins,  which  were  in  a separate stock,  as having  been supplied  by accused Nakula Sahu; that on verification, he did not find any class I wash hand basins in the said 593 wash hand basins and that almost all the  said wash basins had manufacturing defects and bore markings II  or IInd  or III  and only a few had no marks as stated by  him in  his inspection  and  verification  report (Exh. 49). During his deposition before the courts also, the witness examined  the said  wash hand  basins  and  gave  in detail the manufacturing defects observed by him on each one of them.  He has  further stated  that fire  cracks,  dents, blisters,  uneven   surface,  unglazed  patches,  undulating surface and  uneven holes  in any  place of  basins are  the manufacturing defects  and those  defects cannot occur after manufacture is  over; that  on verification, he found almost all the  aforesaid wash  hand basins bearing the marks II or III which  led him  to presume  that those were the marks of classification. The witness has 453 denied that  glazed patches  will become unglazed due to bad storage    and  handling or  that any  wash hand basin would become unglazed by friction.

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    Pursottam  Kar   (P.W.10  )   who,  took  over  as  Sub Divisional Officer,  Project I.,  Public Health  Department, Bhubaneswar in  January, 1963  has on  the basis  of monthly stock register  (Exh. 45)  of Project  I stated that 22"X16" wash hand  basins numbering  494, 400,  106, 410 and 40 were received at  the godown  of the  Public  Health  Department, Bhubaneswar from  the Cuttack Plumbing Stores on October 28, 1961, November  13, 1961,  January 3, 1962, January 31, 1962 an(l February  13, 1962  respectively. He has further stated that in  1957 only  thirty 22"X16"  wash  hand  basins  were received; that in 1958 and 1959, no 22"X16" wash hand basins were received  and that in 1960 only eight 22"X16" wash hand basins were received. He has further stated that at the time of verification,  accused Niranjan  Naik told  him that  the wash hand  basins verified  vide Exhibits  50  and  55  were supplied by accused Nakula Sahu.      D. N. Singhdeo (P.W. 11) who is the Executive Engineer, Public Health  Department has stated that in April, 1963, he went  to   the  Store   of  the  Public  Health  Department, Bhubaneswar with  Misra, Assistant Pottery Manager of Orissa Industries, Rao,  Inspector  of  Central  Excise  and  Dass, Intelligence Officer  and verified  some of  the  wash  hand basins. The  stock of  the wash hand basins which were to be verified were  shown to  him by  accused Niranjan  Naik, the then Overseer incharge of the Store.      Sachidananda  Misra  (P.W.  12)  who  was  Incharge  of Production in Konark Ceramics, Athgarh from 1960 to 1964 has affirmed that  the first  quality wash hand basins mean wash hand basins having no manufacturing; defect.      P. Ram  Krishna Rao (P.W. 13) who is the Central Excise Inspector, Mauza  Jaipur has  stated that during the time he was working  in Orissa  Industries Ltd., Barang as Assistant Pottery Incharge,  rubber stamp  marks were  put on the wash hand basins  produced in  the factory  showing their quality and gradation  such as I or IInd or only II or IIIrd or only III or  IVth or  only ’IV’  as the case was; that very small number of first quality wash hand basins were being produced and that  at the  time of the aforesaid verification, rubber stamp marks II or III were there.      Abdul Rasid Khan (P.W. 15), L.D.C. in Sales Tax Office, Cuttack, West  Circle has  by reference to the record stated that in  the application  (Exh.  68)  made  by  the  Cuttack Plumbing Stores, 454 Nakula         Sahu          has          signed          as proprietor/Manager/Partner/Principal  Officer  of  the  said firm; that on the said application, Registration Certificate No. CU  12681 dated December 27, 1956 showing Nakula Sahu as Proprietor of  the Cuttack  Plumbing Stores and that Exhibit 69 is  the office  copy of  the said certificate and that on October 20,  ]963, the  said certificate was renewed for the year 1963-64.      Prasanta Chandra  Das (P.W. 17) who is the Inspector of Police attached to Vigilance Branch has stated that on March 28, 1963  he seized  593 wash  hand basins  of  Barang  Make bearing ’Orissa’  Trade Mark  from Public  Health Department Stores,  Bhubaneswar   as  pointed  out  by  Niranjan  Naik, accused.      From the  resume of  the prosecution  evidence as given above, it  is abundantly  clear that quotations in regard to the supply  of first quality, barang make, 22"X16" wash hand basins submitted  by the  Cuttack Plumbing  Stores, of which Nakula Sahu  was the  proprietor were accepted by P.W. 7 and work order  for supply  of  100  wash  hand  basins  of  the aforesaid quality, make and size was issued to the former by

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the latter;  that Gopinath  Patra who as Executive Engineer, Public Health Department Bhubaneswar, was entrusted with and had dominion  over Rs.  1,95,420/- for purchase of wash hand basins and  other sanitary  fittings entered  into  criminal conspiracy with  Niranjan Naik,  who was  Section Officer of Project  No.  1  Sub  Division,  Public  Health  Department, Bhubaneswar and  other accused  for commission  of  criminal breach of  trust punishable  under section 409 of the Indian Penal Code;  that  in  pursuance  of  the  said  conspiracy, Gopinath  Patra  committed  criminal  breach,  of  trust  in respect of  a huge amount of Government funds by dishonestly purchasing between  October, 1961  and February,  1962  wash hand basins  from the Cuttack Plumbing Stores which were not of first quality, barang make as specified in the tender but were substantially  inferior in  quality and  value to those basins; that pursuant to the said conspiracy, Niranjan Naik, accused  dishonestly  accepted  and  took  delivery  of  sub standard wash  hand basins  differing materially  in quality and value  from those  which were  contracted to be supplied and indented  for knowing  pretty well  from their gradation marks which  were a sure guide about their quality that they were of  inferior quality and appended false certificates in the Measurement  Book and on the aforesaid bills Nos. 19, 22 and 25  presented by  the Cuttack  Plumbing  Stores  to  the effect that the supplies of wash hand basins made by it were correct according  to .  the specifications mentioned in the order  and   consequently  abetted  Gopinath  Patra  in  the commission of  the  offence  of  criminal  breach  of  trust punishable under section 409 of the Indian Penal Code and 455 thereby committed  an offence  under section  409 read  with section A  109 of  the Indian Penal Code; that from February 28, 1961  to the  end of  1962 A.D.  Only seventy  to eighty first quality  wash hand  basins  were  produced  by  Orissa Industries Ltd., Barang; that except for three first quality wash hand basins purchased by the Cuttack Plumbing Stores in June, 1959  from Orissa Industries Ltd., Barang, the rest of the wash  hand basins purchased by Nakula Sahu either in his individual capacity or as proprietor of N. C. Sahu & Sons or as proprietor  of the  Cuttack Plumbing Stores from the said Company were  all of  II or  III gradation  and as such were substantially  inferior   in  quality   and  value   to  the specifications mentioned in the tender (Exh. 2) and the work order (Exh.  4) and  that save and except the number of wash hand basins  detailed ill their depositions before the Court by P.Ws.  2 and  14, who  are Sales  Manager  and  Secretary respectively of  Orissa Industries  Ltd., Barang,  no  other wash hand basins were purchased by Nakula Sahu or N. C. Sahu & Sons  or cuttack Plumbing Stores, of which Nakula Sahu was the proprietor.      The plea  of Gopinath  Patra that  he acted bonafide on the certificates  of  the  Section  Officer  and  Divisional Officer whose  duty it was to verify the quality of each and every wash  hand basins  on receipt  of the consignments and passed bills  Nos. 19, 22 and 25 in a casual manner and that 894 wash  hand basins which he inspected under orders of the Public Health  Engineer conveyed  to him vide Exhibit 6 were of Barang  Make, first  quality, and  593 wash  hand  basins which were  seized by P.W. 17 under Exhibit 73 were not from 894 wash hand basins verified by him in Exhibit 7 is totally falsified by  the clinching  evidence furnished by Exhibit 7 dated December  9, 1961  which. it will be recalled was sent by Gopinath  Patra in rely to the confidential communication addressed to him by P.W. 7. In this Exhibit 7 Gopinath Patra clearly informed P.W. 7 that he had inspected each and every

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one of  the 894  wash hand  basins which had up to that date been supplied  by the Cuttack Plumbing Stores and found them all of  Class 1  Barang make.  The conclusion is, therefore, irresistible that  Gopinath Patra  actively connived  at the delivery and  acceptance of  inferior quality  of wash  hand basins by  the supplier  which did not at all conform to the specifications given in the tender submitted by it or in the supply order placed by him and dishonestly passed orders for payment of  first quality  goods knowing  that the wash hand basins supplied  were of inferior quality and thus committed criminal breach  of trust  in respect  of a  huge amount  of Government funds  and that in order to conceal his guilt  he purposely gave  false certificate  vide Exhibit  7 that  894 wash band  basins supplied  by the  Cuttack Plumbing  Stores (out of which 593 456 were seized  by P.W.  17  and  verified  by  P.W.  8  to  be defective and  of II  or III  quality)  were  all  of  first quality and  conformed to  the specifications  in the supply order although  in the  proved facts and circumstances, none could be of first quality. That this was so and he furnished the aforesaid  certificate even  without caring to visit the Public Health  Department Store,  Bhubaneswar  for  physical verification as  directed by his superior is further evident from the  fact that  he omitted  to make  even a  mention in Exhibit 7  about the  quality of  106 numbers  of wash  hand basins which  had been  indisputably received  in the  Store before he sent reply Exhibit 7 to the aforesaid confidential query made by P.W. 7 vide Exhibit 6.      The further  plea of  the accused  that 593  wash  hand basins seized  from the  Public Health  Department Store  by P.W. 17  were not from amongst those supplied by the Cuttack Plumbing Stores  also stands  negatived from the evidence of P.W. 8  (who verified  the said  wash  hand  basins  at  the pointing out  of Niranjan Naik) as also from the evidence of P.Ws. 10, 11, 12, 13 and 17.      Thus it  is manifest  that neither  the trial court nor the Sessions  Judge committed any error of fact or of law in arriving at their conclusions and the High Court misdirected itself in  upsetting their  concurrent findings ignoring the well recognised  principles for  the exercise  of revisional jurisdiction. From  the  material  on  the  record.  we  are satisfied that  the offences-with  which Gopinath  Patra and Niranjan Naik  were charged were brought home to them beyond any reasonable doubt.      From the  foregoing reasons, we set aside the aforesaid judgment and  order of  the High  Court acquitting  Gopinath Patra and  Niranjan Naik  and convict  them for the offences with which  they were  charged and  held guilty by the trial court. Keeping  however, in  view the  fact  that  the  said respondents are likely to lose their jobs and must have gone through a  lot of  mental and  financial strain  during  the prolonged proceedings  before the  courts lasting  for  over fourteen years,  we think  that a  consolidated fine  of Rs. 10,000/- in  ease of  each of the respondents will meet  the ends of justice. Accordingly while remitting the substantive sentence of  imprisonment, we  impose a  sentence of fine of Rs. 10,000/-  on each  one  of  the  said  respondents  viz. Gopinath Patra  and Niranjan  Naik. In default of payment of fine,  each  one  of  the  said  respondents  shall  undergo imprisonment for  a period  of six months. The fine shall be deposited within a 457 period of  two months from today failing which the aforesaid respondents shall  surrender themselves  to their bail bonds

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to undergo  the aforesaid  imprisonment imposed  on them  in default of payment of fine. P.B.R.                                       Appeal allowed. 458