ON Criminal Appeal No 301 of 1971
Appeal by Special Leave from the Judgment and Order dated the 15thl6th June 1971 of the Bombay High Court in Criminal Appeal No 1405 of 1969
PH Parekh and Miss Manju Jatley for the appellant
HR Khanna and MN 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 section 51d read with section 52 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 Ext 9 placed orders with Jayantilal Himatlal Shah PW 2 for supply of the tools
It is not disputed that PW 2 was one of the contractors on the approved list of the Depart ment and still continues to be so
PW 2 further assured the appellant that he would make the supply as early as possible and that he would do so at moderate rates
PW 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 PW 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 PW 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 Ms Devichand Lalchand Gandhi PW 11 and received 900 dessert spoons of stain less steel from them
Sometime in 1964 PW 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 PW 2 alone without making any enquiries from the local market whether the tools were available there
It was also alleged that by placing orders with PW 2 the appellant caused PW 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 PW 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 section 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 PW 2 made a profit of 45 and pleaded on the other hand that he was given to understand by PW 2 that the articles would be supplied at moderate rates
The appellant seemed to suggest 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 PW 2 was prepared to supply all the goods himself and he was also on the 18 1546 SCI76 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 PW 2
The Trial Court after consideration of the evidence and circumstances found that the appellant had by corrupt means procured pecuniary benefit for PW 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 section 51 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 PW 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 In the case of Narayanan Nambiar vs State of Kerala1 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 section 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 ie 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 section 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 PW 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 SCR 724 730 731
538 after having made the purchases he would obtain the sanction of the Chief Commanding Officer
This procedure is known as cash purchase basis
The accused however adopted the procedure known as covering purchase order ie 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 PW 2
All the bills were paid to PW 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 PW 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 PW 2 Lt
Des Raj PW 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 section 342 Cr
PC that he had in fact made enquiries and had sent the Supply Clerk and one Deshmukh for 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 PWs 14 15 and 16
PW 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 PW 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 PW 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 PW 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 therefore we are satisfied that the High Court misread the evidence of PW14
Reliance was then placed on the evidence of PW 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 exhibit 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 section 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 exhibit 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 PW 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 PW 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 PW 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 PW 2
This witness further admits that out of the list Ex9 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 PWs 14 and 15
He has not produced the stock register 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 PW2 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 PW 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 PW 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 PW 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 PW 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 PW 2 yet when he found that PW 2 was charging higher rate for the dessert spoons he did not place orders for the same with him but placed the orders with PW 11 who supplied at the rate of Re 1 per spoon which was less than the rate at which PW 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 PWs
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 PW 2
The appellant had admitted that if he had known that PW 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 PW 2 was the sole beneficiary of the whole transaction and had according to the prosecution 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 PW 2 through his business influence ob tained the order in his favour then before the prosecu tion was started against the appellant PW 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 PW 2
There is however no such evidence on record and PW 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 PW 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
MR Appeal allowed


Summary:
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 section 51d read with section 52 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 article 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 section 51d 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 vs State of Kerala 1963 Supp
2 SCR 724 730 731 referred to