minal Appeal No 105 of 1969
Appeal by special leave from the judgment and order dated March 27 1969 of the Bombay High Court in Criminal Appeals Nos 53 and 45 of 1968
VS Kotwal A G Ratnaparkhi and Rajiv Shah for the appellant
R M Mehta and B D Sharma for the respondent
The Judgment of the Court was delivered by Khanna J
This is an appeal by special leave by Khandu Sonu Dhobi and Bhikanrao Rambhau Khairnar against the judgment of the Bombay High Court affirming on appeal the conviction of the appellants under section 218 read with section 34 section 477A read with section 34 and section 409 read with section 34 of Indian Penal Code as well as under section 5 2 read with section 5  1  d of the Prevention of Corruption Act
Sentence of rigorous imprisonment for a period of one year and a fine of Rs 200 or in default further rigorous imprisonment for a period of two months has been awarded on each count to the appellants
The substantive sentences have ben ordered to run concurrently
Dhobi appellant No 1 was an agricultural assistant and was working under Khairnar appellant No 2 who was agricultural 512 supervisor in the soil conservation section of the Government of Maharashtra
Dhobi was incharge of the work relating to a Bundh in block No 13 of village Asane in Taluka Mandurbar
The above block comprises agricultural lands bearing survey Nos 8 17 18 19 and 32 measuring 90 acres
The Bundhs were being constructed since the year 1962
Rectification work in respect of those Bundhs at a cost of Rs 36907 had to be got done by Dhobi appellant under the supervision of Khaimar appellant
The Government sanctioned an amount of Rs 4779 in connection with the construction of the Bundhs
An advance amount of Rs 5000 was received by Khaimar accused on March 2 1966 in that connection
Work of the value of Rs 4400 was done but that relating to rectification work was not done
According to the rules of the soil conservation section the Government spent the money in the first instance and after the report of the completion of work was received the expenses were recovered from the landowners for whose benefit the work was done
On March 11 1966 Khaimar made entries in measurement book exhibit 27 showing that he had checked 28 payments and certified the same
Khaimar accused also stated in the entry that he had passed the measurements and paid Rs 36907
Paysheets exhibit 64 were prepared by Dhobi accused and he obtained the thumb impressions and signatures of the laborers on the paysheets
Khaimar made his initials below the thumb impressions in the paysheets
On the last page of the paysheets Khaimar signed a certificate according to which he had paid Rs 36907 to PW 10 Jagan Trinibak who used to do the labour work
Final bill exhibit 28 was also prepared on that day by the accused and the signature of Jagan Trimbak was obtained on the same
The bill was got signed from PW 7 Ziparu Tukaram and another person as attesting witnesses
The bill was signed thereafter by Khaimar
Debit entry exhibit 32 of Rs 36907 was made by Khaimar accused in the cash book
He also prepared work abstract exhibit 29 on April 16 1966 and sent it to the sub divisional soil conservation officer Nandurbar showing an expenditure of Rs 369 07
The case of the prosecution was that the measurement book exhibit 27 paysheets exhibit 64 final bill exhibit 28 and cash book entry exhibit 32 were false documents and were fabricated by the accused without doing any reification work on the Bundh
The accused thus committed criminal breach of trust in respect of the amount of Rs 36907 in furtherance of their common intention to misappropriate government property
According further to the prosecution case the landowners in block No 13 came to know of the above acts of the accused and they complained about it to Sarpanch Tanku Bhagwan PW 12
Tanku sent a telegram on April 12 1966 to the superintending agricultural officer Bombay division Nasik in this connection
A copy of the telegram was 513 thereafter sent by the superintending agricultural officer to divisional soil conservation officer DSD Ghate PW 1 for necessary action as well as for enquiry and report
Chate PW went to village Asane on May 2 1966 and inspected block No 13
He found that entries had been made about the payment of Rs 36907 in the measurement book and cash book even though no rectification work had been done
Chate submitted his report on May 6 1966 for proceeding departmentally against the accused
On receipt of the above report the superintending agricultural officer directed P R Inamdar PW 1 1  deputy director of agricultural engineering to go to Asane village and submit his report after personally verifying the facts
Inamdar went with Ghate to block No 13 in Asane village on May 11 1966
Both Inamdar and Ghate found that no rectification work had been done
They did not find even a single pit in the lands in that block although according to measurement book 83 pits had been recently dug
Inamdar and Ghate also met the Sarpanch and other landowners of Asane village
Report dated May 18 1966 was thereafter submitted by Inamdar affirming those facts
Sarpanch Tanku sent complaint exhibit 84 in the meanwhile on April 30 1966 to the director of anti corruption branch Maharashtra State stating that the accused had prepared false bill for Rs 36907 without doing any work and that they had misappropriated that amount
It was also stated that attempts were being made to shield the accused
The director of anti corruption sent a copy of that application to Sub Inspector K G Patil PW 13 who was then attached to Dhulia officse of the anticorruption branch
Sub Inspector Patil made local enquiry and took into possession the measurement book paysheets and cash book
The director of anti corruption branch directed Patil to register a case and investigate into the matter
Patil went to Nasik and recorded statement exhibit 79 of Inamdar PW on November 7 1966
The statement was then sent to Nandurbar Taluka police station
A case was registered on the basis of that statement at the police station on November 8 1966
On November 12 1966 sub Inspector Patil applied for permission under section 5A of the Prevention of Corruption Act of judicial magistrate 1st class to investigate the offence
The permission was granted by the judicial magistrate 1st class Nandurbar on the same day
Patil thereafter recorded statements of a number of persons
Patil was subsequently transferred and the case was investigated by his successors Mahamuni and Kulkarni who also obtained the requisite permission
Sanction exhibit 97 for the prosecution of the two accused was granted under section 6 of the Prevention of Corruption Act by the superintending agricultural officer Bombay division Nasik on May 18 1967
514 The two accused in their statements admitted that the work of the value of Rs 36907 wasnot done till March 11 1966 although it was so stated in the various documents by them
The accused also admitted that no amounts were paid to any of the labourers mentioned in the paysheets although signatures and thumb impressions of the labourers had been obtained on the paysheets on March 11 1966
According to the accused they had prepared the various documents in accordance with the instructions of Ghate PW who was insisting in March 1966 and even earlier that a completion report relating to block No 13 be sent as the entire amount spent on that block since 1962 could not be recovered for want of a completion report
Khaimar accused added that rectification work had been done between May 13 1966 and May 16 1966 and the amount of Rs 36907 was thereafter disbursed on May 16 1966
The learned special judge held that the amount of Rs 36907 had not been paid by the two accused to the labourers
No work it was found had been done and the different documents prepared by the accused in this connection were false even on their own admissions
The explanation furnished by the accused that they prepared false documents at the instance of Ghate and got work done thereafter was not accepted
Objection was raised on behalf of the accused that the investigation of the case was illegal and that prosecution was barred by time under the pro visions of section 23 of the Land Improvement Schemes Act 1942
These objections were repelled
The accused were accordingly convicted and sentenced as above
On appeal the High Court affirmed the findings of the learned special judge
We have heard Mr Kotwal on behalf of the appellants and are of the opinion that there is no merit in the appeal
It has not been disrupted before us that the accused made various entries and prepared documents on March 11 1966 about their having got the rectification work done as well as about the payment of Rs 36907 on that account
It has also not been disputed before us that the amount of Rs 369 07 was not paid to any one by the accused in March or April 1966
According to Ghate PW 1 and Inamdar PW 11 no work relating to the rectification of the Bundh was found to have been done till May 11 1966 when they visited the site in question
Inamdar s evidence also shows that according to the measurement book prepared by the accused 83 pits had been recently dug although the witness could not find a single pit on the spot
In view of the above we find no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents and had also committed criminal breach of trust in respect 515 of the amount of Rs 36907
We also agree with the trial court and the High Court that the accused were in the discharge of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act
Mr Kotwal has argued that the accused completed the recti fication work after May 11 1966
There is however no direct evidence as may show that the rectification work was completed  after May 11 1966
Even if it may be assumed that the accused completed the rectification work in May 1966 that fact in our opinion would not absolve the accused of their criminal liability
The charge against the accused relates to preparation of false documents because even though no work had been done till March 11 1966 and no amount had been disbursed they prepared docu ments showing the doing of that work and the payment of that amount
It is no answer to that charge that after the matter had been reported to the higher authorities the accused in the month of May 1966 got the rectification work done
It is also no answer to a charge of criminal misappropriation that the money was subsequently after the matter had been reported to the high authorities disbursed for the purpose for which it had been entrusted
According to explanation 1 to section 403 Indian Penal Code a dishonest misappropriation for a time only is  misappropriation  within the meaning of that section
Mr Kotwal has also submitted that the accused expressed willingness to complete the work after the matter had been reported to the higher authorities
This submission even if accepted would not exonerate the accused because the willingness after the matter had been reported to the higher authorities could not efface or undo the offence earlier committed by the accused
Argument has then been advanced on behalf of the appellants that Sub Inspector Patil did not make investigation in the case in accordance with law
It is urged that permission to make investigation was granted to Sub Inspector Patil on November 12 1966 and as such he was not authorized to make before that date the enquiry which led to the registration of the case as that enquiry partook of the character of investigation
Nothing has been brought to our notice as to how an enquiry before the registration of a case can be held to be investigation
The matter however need not be dilated upon and it is not necessary to express any final opinion in the matter because we find that there is no material on the record as may show that the accused were prejudiced because of the alleged non compliance with the provisions of section 5A of the Prevention of Corruption Act
It is well established that where cxognizance of a case has in fact been taken by the court on a police report following investigation 516 conducted in breach of provisions of section 5A of the Prevention of Corruption Act the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice
The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court to try the accused
Where therefore the trial of the case has proceeded to termination the invalidity of the proceeding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused see H N Rishbud and Inder Singh vs The State of DelHi1
Since there has been no miscarriage of justice in the present case because of the alleged non compliance with section 5A the conviction of the accused appellants cannot be set aside on that score
For the same reason we are unable to accede to the contention of Mr Kotwal that the conviction of the accused should be set aside because permission under section 5A of the Prevention of Corruption Act to SI Patil for investigation of the offence was granted in a casual manner and without the existence of sufficient reasons
Lastly it has been argued by Mr Kotwal that the prosecution of the accused was barred by time under section 23 of the Bombay Land Improvement Schemes Act 1942
The section reads as under 1 No suit prosecution or other legal proceeding shall be instituted against any public servant or person duly authorized under this Act in respect of anything in good faith done or intended to be done under this Act or the rules made thereunder
2No suit or prosecution shall be instituted against any public servant or person duly authorized under this Act in respect of anything done or intended to be done under this Act unless the suit or prosecution has been instituted within six months from the date of the act complained of
 Sub section 1 of the section has plainly no application as it relates to anything done in good faith
According to Bombay General Clauses Act a thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not
The appellants admittedly were not acting honestly when they prepared the false documents in question and showed disbursement of Rs 36907 on March 11 1966
Mr Kotwal however relies on sub section 2 of section 23 and 1  517 submits that the prosecution could be instituted against the appellants only within six months from March 11 1966
As the charge sheet was submitted long after the expire of six months the case against the accused appellants according to the counsel was barred by time
This contention in our opinion is devoid of force
Sub section 2 refers to suit or prosecution against a public servant or person duly authorized under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act
It cannot be said that the acts of the accused appellants in preparing false documents and in committing criminal breach of trust in respect of the amount of Rs 369 07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act
Sub section 2 of section 23 deals with anything done or intended to be done under the above mentioned Act by a public servant or a person duly authorized under the Act
It has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the above mentioned Act
The impugned acts of the appellants in the present case were not in discharge of their duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties
Not only they did no rectification work for the Bundh which was a part of the improvement scheme they also misappropriated the amount which had been entrusted to them for the purpose of rectification
Prayer has also been made for the reduction of the sentence but we see no cogent ground to interfere with the same
The appeal consequently fails and is dismissed
KBN Appeal dismissed


Summary:
The appellants entrusted with the duties of carrying out improvement schemes under the Bombay Land Improvement Scheme Act 1942 were charged with the offence of preparing false documents and committing criminal breach of trust in respect of certain amount
It was alleged that even though no work had been done and no amount had been disbursed they prepared documents showing the doing of the work and payment of the amount They were convicted under section 218 read with section 34 section 477A read with section 34 and section 409 read
with section 34 of the Indian Penal Code as well as section 52
read with section 51d of the Prevention of Corruption Act
The High Court affirmed the conviction
in the appeal to this Court it was contended that after the matter had been reported to the higher authorities the rectification work was done and the money was disbursed for the purpose for which it had been entrusted that the conviction was bad because of non compliance with section 5A of the Prevention of Corruption Act and that the prosecution was barred by time under section 23 of the Bombay Land Improvement Schemes Act 1942
Dismissing the appeal HELD  i There is no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents bad also committed criminal breach of trust and were in the discharge of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act
iiIt is no answer to a charge of criminal misappropriation that after the matter bad been reported to the higher authorities the accused got the rectification work done or the money was subsequently disbursed for the purpose for which it had been entrusted
According to explanation 1 to section 403 Indian Penal Code a dishonest misappropriation for a time only is misappropriation within the meaning of that section
515 D iiiIt is well established that cognizance of a case has in fact been taken by the court on a police report following investigation conducted in breach of provisions of section 5A of the Prevention of Corruption Act the result of the trial cannot be set aside unless the illegality in the 511 investigation can be shown to have brought about a miscarriage of justice
The reason for the above dictum is that an illegality committed during the course of investigation does not effect the competence and jurisdiction of the Court to try the accused
Where therefore the trial of the case has proceeded to termination the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused
Since there has been no miscarriage of justice in the present case because of the alleged non compliance with section 5A the conviction of the appellants cannot be set aside on that score
515 H HN Rishbud and Inder Singh vs The State of Delhi   referred to
ivSub section i of the Bombay Land Improvement Schemes Act 1942 has plainly no application as it relates to anyth ing done in the good faith
It cannot also be said that the acts of the appellants in preparing false documents and committing criminal breach of trust as also the act of criminal misconduct were done under the Bombay Land Improvement Schemes  Act within the meaning of sub section 2
The subsection has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with the duties of carrying improvement schemes under this Act
The impugned acts of the appellants was not in discharge of their duties under the Act but in obvious breach and flagrant disregard of their duties
516 G 517 D