http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10

"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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10

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