1 APPEAL-GROUP-683.91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.683 OF 1991 1. Jayant Purushottam Dhaigude, Age: 55, Occ: Service, R/o Solapur. 2. Ramesh Bhagwan Todkari, Age 43, Occ: Service, R/o Solapur. 3. Shashikant Shetyappa Birajdar, Age 25, Occ: Service, R/o Solapur. 4. Ramesh Ulappa Hatti, Age 42, Chairman, Utkarsha Labour Co-op. Society Ltd., R/o Solapur. 5. Kamalakar Dhyandeo Shinde, Age 27, Chairman, Shivshankar Labour Co-op. Society Ltd., Khed, Taluka North Solapur, Solapur. .... Appellants {Appeal by appellant Nos.4 and 5 stand abated as per Court s Order dated 5-1-2011.} - Versus - The State of Maharashtra .... Respondent WITH 2 APPEAL-GROUP-683.91 CRIMINAL APPEAL NO.684 OF 1991 1. Bhalchandra Shetiba Alkunte, Age 45, Chairman, Sidheshwar Wadar Labour Co-op. Soc. Ltd., Solapur. 2. Giridhar Rohidas Alkunte, Age 33, Chairman, Prasanna Wadar Labour Co-op. Soc. Ltd., Solapur. 3. Vasant Mahadev Kshirsagar, Age 35, Chairman, Shairavnath Labour Co-op. Soc. Ltd., Ankoli, Tal. Mohol, Distric Solapur. .... Appellants - Versus - The State of Maharashtra .... Respondent CRIMINAL APPEAL NO.695 OF 1991 Abhimanyu Dattatraya Admane, Age 33 years, Chairman, Jay Balaji Labour Co-operative Society Limited, Shripur, Taluka Mohol, District Solapur. .... Appellant - Versus - State of Maharashtra .... Respondent 3 APPEAL-GROUP-683.91 CRIMINAL APPEAL NO.70 OF 1992 Anna Margu Jadhav, Age 28 years, Chairman, Jay Hanuman Labour Co-op. Society Ltd., Bhabewadi, R/o Bhabewadi, Tal. Mohol, District Solapur. .... Appellant - Versus - The State of Maharashtra .... Respondent AND CRIMINAL APPEAL NO.229 OF 1992 The State of Maharashtra .... Appellant - Versus - 1. Jayant Purushottam Dhaigude, Age 55 years, Occ: Service, r/o 1827, Sadashiv Peth, Deshmukh Wada, Pune-30. 2. Ramesh Bhagwan Todkari, Jr. Engineer, Age 43 years, Occ: Service, r/o E, Zende Galli, Pandharpur, Dist. Solapur. 3. Shashikant Shetyappa Birajdar, Age 25 years, Occ: Service, r/o Twins Solapur, Plot No.HIG/141 in House of Annarao, Shivappa Nagar, District Solapur. .... Respondents 4 APPEAL-GROUP-683.91 Shri V.N. Shingnapurkar for the Appellant/ original Accused No.1 in Appeal No.683/91. Shri V.T.Tulpule, Sr. Counsel i/b. Shri Umesh Mankapure with shri Nilesh Wable for the Appellant/original accused No.2 in Appeal No. 683/91 Shri V.V. Purwant for the Appellant/ original accused No.3 in Appeal No.683/91 Shri R.U. Vasekar for the Appellant/original accused in Appeal No.70/92. Shri S.P. Kadam with P.B. Gaikwad for the Appellant/ original accused Nos.1 & 3 in Appeal Nos.684/91 and for the Appellant/original accused in Appeal No.695/91 Shri S.C. Hali for Appellant/ original accused No.2 in Appeal No.684/91. Ms P.P. Shinde, Addl. Public Prosecutor, for the State in all Appeals except Appeal No. 229/92 (for Appellant in Appeal No.229/92). CORAM: R.C. CHAVAN, J. DATED: APRIL 26, 2011 ORAL JUDGMENT: 1. These appeals, directed against Judgment dated 11-12-1991 delivered by the learned Special Judge, Solapur in Special Case No.4 of 1987, are being disposed of by this common Judgment. Criminal Appeal No.683 of 1991 5 APPEAL-GROUP-683.91 is filed by the original accused Nos.1 to 4 and 6, Criminal Appeal No.684 of 1991 is filed by the original accused No.5, 10 and 23, Criminal Appeal No.695 of 1991 is filed by the original accused No.14 and Criminal Appeal No.70 of 1992 is filed by the original accused No.24 challenging their convictions for various offences and sentences imposed upon them by the learned Special Judge. Appeal No.229 of 1992 is filed by the State challenging acquittal of the original accused Nos.1 to 3 for some of the offences with which they were charged. For the sake of convenience appellants in these Appeals challenging their convictions are referred to by their numbers as accused in the trial Court. 2. Facts which are material for deciding these Appeals are as under :- Accused Nos.1 to 3 were serving respectively as Deputy Engineer and Junior Engineers in the Building and Construction (B & 6 APPEAL-GROUP-683.91 C) Department of Zilla Parishad, Solapur at the relevant time i.e., between 1-2-1982 to 31-3-1982. Accused Nos.4 to 6, 10, 14, 15, 18, 21 to 24 were Chairmen of different Labour Co- operative Societies to whom certain works were alloted by accused Nos.1 to 3. Accused Nos.7 to 9, 11 to 13, 16, 17, 19 and 20 were individuals associated with the Societies and had allegedly helped Societies in misappropriating amounts sanctioned for works alloted to the Societies. 3. In September, 1981, the State Government alloted to Zilla Parishad, Solapur grant of Rs.26,50,000/- for repairs and maintenance of village roads at Rs.900/- per Kilo Meter. The amount was to be spent in the financial year 1981-1982. The Works Committee of the Zilla Parishad in its meeting dated 28-11-1981, authorized Deputy Engineer to allot works up to Rs.3000/- each to contractors, with 7 APPEAL-GROUP-683.91 the approval of the Executive Engineer. Accused No.1 prepared estimates of the work, submitted them to Executive Engineer, and after his approval, alloted works to various Societies in March, 1982. In April, 1982, the Anti- corruption Bureau received information that works were not carried out though amounts had been disbursed, and hence, on 28-4-1982 Police Inspector Jadhav lodged a report with Police Station, Mohol alleging commission of offences of misappropriation and forgery as also offences punishable under Section the Prevention of Corruption Act. 4. In the course of investigation panchanamas were drawn up and statements of witnesses were also recorded to show that works were not executed. Documents showing fabrication of record to indicate execution of works and making payments were seized. On completion of investigation, sanction to 8 APPEAL-GROUP-683.91 prosecute accused Nos.1 to 3 was sought from appropriate authority and on receipt of the sanction, charge sheet was lodged with the learned Special Judge, Solapur. 5. On 6-3-1991, vide Exhibit 50, the learned Special Judge charged the accused persons of the offence punishable under Sections 120B, 409, 467, 468, 471, 477-A r/w Section 34 of the Indian Penal Code (for short, IPC . Accused Nos.1 to 3 were also charged of the offences punishable under Sections 5(1)(c) r/w Section 5(2) and Section 7 of the Prevention of Corruption Act, 1988. Since all the accused pleaded not guilty, they were put on trial by the learned Judge at which the prosecution examined in all 92 witnesses to bring home guilt of the accused. Accused No.11 died during the pendency of the trial and case against him abated. The fact that accused Nos.1 to 3 were public servants, and also the fact 9 APPEAL-GROUP-683.91 that the Government had sanctioned their prosecution was not disputed, though authority of the Government to accord sanction was questioned. 6. After considering the prosecution evidence in the light of defence of denial of any misappropriation/defalcation or forgery, the learned Special Judge held that work of Belati-Dongaon road alloted to accused No.4 was not executed. Out of three roads alloted to accused No.5 under rate list 626 i.e.Tirhe- Pathari, Pakni-Kondi and Kavthali-Bhagyawadi road, the learned Judge held that there was no positive evidence in respect of Tirhe-Pathari road and Pakni-Kondi road and held accused No.5 only in respect of Bhagyawadi-Kavthali road. Accused No.5 was also held guilty in respect of Kalamba-Gulvanchi-Kondi road under rate list 727 and Ranmasale-Nannaj Road but not in respect of Ekrule-Raleras road. Accused No.6 10 APPEAL-GROUP-683.91 was held guilty for not completing the work of Hiraj-Pakni road. About Tirhe-Shivani Road the learned Judge held that it cannot be said that false record was prepared or any offence was committed. He held accused No.6 responsible for not completing the work of Kondi-Gulvanchi road. Accused No.10 was not held guilty for non-execution of Kalman Sakharewadi Waluj road but was held guilty for Haglur-Dahitane road. Accused No.14 was held to have completed the work of repairs of Dharmashala at Pokharapur but was held guilty for not completing the work of Masale Choudhari-Khuneshwar Morwanchi road. Accused No.14 was also exonerated for the repairs to building to Primary Health Centre, Veterinary dispensary etc. Accused No.23 was held guilty of not completing the work of Bhambewadi-Ashte road. Accused No.24 was held guilty for not executing the work of Lamboti-Ranmasale road but was exonerated for the repairs of Primary 11 APPEAL-GROUP-683.91 Health Centre, Mohol. 7. The learned Judge had observed in para 51 of the impugned Judgment that out of 11 Societies represented by 11 Chairmen, accused Nos.4, 5, 6, 10, 14, 23 and 24 had not completed the work alloted and without execution of any work, in collusion with accused Nos.1 to 3 had prepared false claims and withdrawn money. The learned Judge held that offence of Criminal breach of trust by misappropriation of Government money was not proved as there was no evidence of entrustment of moneys to accused Nos.1 to 3 as the funds were under the control of the Executive Engineer, who had the authority to pass the bills. The learned Judge held the Engineers not guilty of the offence punishable under Section 5(1)(c) r/w Section 5(2) of the Prevention of Corruption Act, as fraudulent misappropriation was not proved. But he held accused No.1 12 APPEAL-GROUP-683.91 guilty of the offence punishable under Section 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act observing that accused No.1 had obtained Government money by cheating. Accused Nos.1 to 3 were convicted for the offence punishable under Section 477-A holding that false entries of execution of works were taken by them in the measurement books. The learned Judge, however, held that there was no forgery. He held in para 56 that though accused Nos.1 to 3 were not shown to have received any money directly from other convicts, since false claims were made by others, accused Nos.1 to 3 were guilty of cheating punishable under Section 420 r/w Section 34 of the IPC. The learned Judge, therefore, held accused No.1 guilty of the offence punishable under Section 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act, sections 420 and 477-A read with Section 34 of the IPC, accused Nos.2 and 3 guilty of the offences punishable under 13 APPEAL-GROUP-683.91 Sections 420 and 477-A read with Section 34 of the IPC and accused Nos.4, 5, 6, 10, 14, 23 and 24 guilty of the offences punishable under Section 420 r/w Section 34 of the IPC. He convicted them of the said offences and sentenced them to various terms of imprisonment and fine. He acquitted them of the other offences for which they were charged and also acquitted rest of the accused of all the offences. Aggrieved thereby, the convicts and the State have preferred these Appeals. 8. During the pendency of the appeals, accused Nos.4 and 6 were reported to have died. Their Appeals, therefore, abated. 9. I have heard the learned Counsel for the convict appellants as well as the learned Additional Public Prosecutor. On behalf of the convict appellants, it was submitted first that the works for which payments were made were in 14 APPEAL-GROUP-683.91 fact executed. There was no evidence to show that works were not executed. In any case, there was no lapse on the part of accused No.1  Deputy Engineer Dhaigude in paying for the works, since he was supposed to check only 10% of works executed, which he had done, and evidence on record also pointed to execution of some of the works. Minor works have a limited life and if the soil spread for repairing roads was washed off between execution of work and inspection, it could not be said that work was not executed. On behalf of Chairmen of Societies, it was submitted that works had been executed and the amounts which had been received by Societies by cheques were duly accounted for in the books of accounts of the Society, which had been audited. Chairmen of Societies could, therefore, not be held guilty as there was nothing to show that any kickbacks were paid or any amounts were misappropriated 15 APPEAL-GROUP-683.91 by the Chairmen personally. It was also submitted that there was absolutely no evidence of any nexus between the Engineers and Chairmen of Societies. It was also submitted that while some Chairmen were convicted others were let off when evidence against them was similar. 10. On behalf of Engineer convicts, question of authority of Government to sanction prosecution of employees of Zilla Parishad was also raised and it was submitted that Government was not superior authority for Zilla Parishad, which employed accused Nos.1 to 3. 11. The learned APP submitted that there was sufficient evidence to show that payment was made for work not done and that there was misappropriation of Government money by preparing false documents. She, therefore, submitted that conviction of the appellants was proper and that the convicts should also have 16 APPEAL-GROUP-683.91 been held guilty of misappropriation and forgery. 12. The first and foremost question that therefore arises for determination is whether the prosecution proved that works were not executed while payment for the same was made. With the help of the learned Counsel I have gone through the entire evidence as well as the elaborate Judgment of the learned Special Judge. PW-1 Mujawar, Deputy Registrar of Co- operative Societies states about procedure to be followed in alloting work to Labour Co- operative Societies. He does not state about any illegality in allotment of work to the Societies concerned. PW-2 Pataki was accountant in Zilla Parishad and states about procedure in sanctioning works. He states that overseer maintains records in measurement book while Deputy Engineer checks 10% of the item of each work before recommending payment by Divisional 17 APPEAL-GROUP-683.91 office (i.e., Executive Engineer). PW-3 Dhange was an officer working in District Central Co- operative Bank on which cheques were drawn by the department. He stated that payment of cheque issued to Utkarsha Society was stopped by Zilla Parishad and no cheque was issued in favour of Siddheshwar Wadar Co-operative Society. Accused Nos.4 and 5 are Chairmen of these two Societies. 13. PWs-4 to 6 state that they wrote accounts of several Societies of which accused persons were Chairmen. PWs-90 to 92 are auditors of the Societies, who found nothing amiss in the accounts of the Societies. 14. PW-11 Prabhakar Kulkarni was the Senior Clerk, who processed the bills for payment at the Divisional Head Quarter. He stated that all these bills were passed by Executive Engineer Shri Lokure, who was neither 18 APPEAL-GROUP-683.91 made an accused, nor was examined as witness at trial. 15. PWs-74 and 75 are hostile panch witnesses. PW-76 Udhav Doke is panch at seizure of certain documents from Prabhat Society's office vide Exhibit-286. PW-80 Abasaheb Sarak is panch on panchanama Exhibit-286. PW-81 Dattatray Chougule is panch on panchanamas Exhibits-298 to 300. By these panchanamas the condition of works allegedly carried out was recorded. The panchanamas themselves recite that some works were carried out and some were not. PW-82 Satish Koli is a hostile panch on a similar panchanama. PW-83 Mohamad Pathan panch on panchanama Exhibit-303, who states that work on Belati Dongaon road (alloted to accused No. 4's Society) was in fact done by spreading black soil. 19 APPEAL-GROUP-683.91 16. PW-84 Bhagwan Bagde is panch at panchanama Exhibit-305 drawn up on 28-7-1982, i.e., in rainy season, in presence of PW-85 Shri Pundlik Bagade, Deputy Director of Anti- corruption Bureau, about condition of works allegedly executed. PW-85 gave a report which is at Exhibit-307. Considering the fact that this panchanama and report were drawn up long after rains had started and also the nature of works allegedly alloted, namely excavation, spreading murum (soft rock) or soil, in the light of admission of the witness in cross, as also evidence of PW-79 Manohar Chitnis, the utility of these documents and evidence of these witnesses is almost nil. PW-85 admitted in his cross that the roads inspected were village roads, current repairs would disappear on account of heavy rain, traffic or wind. 17. PW-79 retired Executive Engineer Shri Chitnis had accompanied Anti-corruption Bureau 20 APPEAL-GROUP-683.91 officer to inspect certain roads on 28th and 29th April, 1982. PW-87 Manohar Dhage is panch at panchanamas drawn up vide Exhibit-312/313 by PW-83 police inspector Jadhav during the inspection by Shri Chitnis. 18. PW-88 Vijaysingh Chavan proves the sanction accorded by the State Government for prosecution of public servants-accused and PW-86 police inspector Vidyadhar Wadekar states about filing of charge sheet. 19. PWs-7 to 10 and 12 to 73 are either adjoining land owners, sarpanchas/police patils, villagers or probable users of roads/facilities concerned, on repairs whereof money was admittedly spent. Of them PWs-13 to 16, 19, 22 to 24, 27, 30, 33 to 44, 48 to 55, 57 to 63, 65 to 72 do not support the prosecution case of works not having been executed. Out of this group of witnesses, the 21 APPEAL-GROUP-683.91 learned Judge has relied on evidence of some who stated that works concerned were not executed and had discarded word of some who stated about the works having been carried out. The learned Judge has accepted evidence of some of these witnesses observing that they would have been the best persons to notice, if work was in fact, carried out or not. 20. Apart from these witnesses, the learned Judge has relied on panchanamas drawn up on 28-4-1982 and 29-4-1982, as also a report by an expert Shri Shinde, who was not alive at the time of trial and whose report, based on inspection carried out on 25-4-1982, was proved at Exhibit-325 through PW-83 police inspector Jadhav. The learned Judge records in para 35 of his Judgment that though defence had objected to this document, in course of arguments, the defence stated that they had no objection to reading the report in evidence. 22 APPEAL-GROUP-683.91 21. In the documentary evidence collected are administrative approvals to current repairs. Such approval to Belati Dongaon road (for which accused No.4 was held guilty), Ranmasale-Nannaj road (for which accused No.5 was held guilty) was accorded on 31-3-1982 vide Exhibit-179. Administrative approvals for other works, some of which were alloted to other convicts, are at Exhibits-180 to 183. Relevant portion therein reads as under: The following C.R. estimates are sent herewith duly approved to the amounts shown against each work according technical sanction at your end. Two copies of estimate with original should be submitted to the Division office for record. The expenditure on the said work should be restricted during current year within the repair and maintenance grants placed at your disposal. The Draft Tender papers for these works should be submitted for fixing the agency at Divisional office level. 23 APPEAL-GROUP-683.91 Exhibits-180 to 183 are dated 11th and 12th March, 1982. Exhibit-179 too, therefore, may be of one of those dates rather than 31-3-1982-the last day of financial year. These letters would show that agencies for carrying out these repairs were to be fixed thereafter at the Divisional office level. 22. Exhibit-188 is rate list for repairs to Belati Dongaon road alloted to Utakarsha Society of which accused No.4 was Chairman. This document shows that Executive Engineer had accorded sanction on 17-3-1982. Exhibits-190 and 194 are Rate Lists for Ranmasale-Nannaj and two other roads as also Kavthali-Bagewadi plus two other roads alloted to Siddheshwar Society of which accused No.5 is the Chairman, sanctioned by Executive Engineer on 17-3-1982. Exhibit-185 is the Rate List for Ranmasale to Khuneshwar Morwanchi road, alloted to Jay Balaji Society of which accused No.14 was 24 APPEAL-GROUP-683.91 Chairman, was sanctioned by the Executive Engineer on 19-3-1982. Exhibit-191 is the Rate List for eight roads worth Rs.4,728/- alloted to Prasan Society of which accused No.10 is Chairman. This work seems to have been sanctioned on 24th February, 1982. Exhibits-192 and 193 are the Rate Lists of work of 4 roads worth Rs.2,940/- and one road worth Rs.3,006/-, alloted to Shivshankar Society of which accused No.6 is Chairman. The roads were sanctioned on 1-3-1982 and 24-2-1982 respectively. Exhibit-196 is the Rate List for on Bhambewadi-Ashte road worth Rs.2,813/- for which accused No.23 has been held guilty as Chairman of Bhairawanath Society. This too was sanctioned on 17-3-1982. Exhibit-186 is the Rate List of current repairs to Lamboti- Ranmasale road worth Rs.4,152/- alloted to Jay Hanuman Society for which accused No.24 has been held guilty. This was sanctioned by the Executive Engineer on 19-3-1982. 25 APPEAL-GROUP-683.91 23. It is clear from these documents that the works themselves were sanctioned in the second half of March, 1982 and were to be completed and expenditure incurred by 31-3-1982. The documents do not show the length of roads on which repairs were to be carried out, but state the quantity of soil/murum to be excavated, stacked or spread in cubic meters. 24. Final bills and bonds executed by concerned Societies are at pages 162 to 164 and 292 to 333 of paper book-Exhibits-103, 210, 232, 236, 238, 240, 246, 254, Exhibit-103 final bill is about work executed by accused No.4's Society and measurement is supposed to have been recorded by accused Birajdar on 26-3-1982 and countersigned by accused Dhaigude. Dates of passing the bill or making payment are left blank. Other final bills referred to above pertain to works in respect of which accused have not been held guilty. 26 APPEAL-GROUP-683.91 25. The question is whether on the basis of this evidence the learned Trial Judge could have concluded that concerned works were not executed by the concerned Societies. The documents referred to above show that the works entrusted were current repairs to village roads-not tar roads or gravel roads, but mere pathways created in soil and murum (soft rock). Lengths of patches of road where repairs were to be carried out have not been specified in any document or in evidence of any witness. If say 100 cubic meters of material is to be spread over a 2m wide one Km long road, the layer would be just 5cm or 2 thick and may be imperceptible to a layman and would vanish with use. If the material was to be used to fill up ditches, those had to be identified as situated between particular points. Only then could a layman say whether the repairs were carried out or not. Therefore, reliance by the learned Judge on the evidence of laymen claiming that 27 APPEAL-GROUP-683.91 repairs were not carried out was improper. They may not have noticed the places where roads concerned were patched up. This is particularly so since there are other lay witnesses who claimed that some of the roads had actually been repaired. 26. In respect of Belati Dongaon road, in fact, PW-83, a panch, states that some work was carried out at some places, when PWs-7 to 10, 12 and 13 state that the road was not repaired. 27. It may be recalled that PW-79 Executive Engineer Shri Chitnis, who had inspected some of the roads, stated in cross- examination that it was difficult for him to locate the alignment and report whether Masle Choudhary-Morwanchi-Khuneshwar road was repaired or not (about which accused No.14 is held guilty). He also stated that if the work of repairs is only spreading black soil it will 28 APPEAL-GROUP-683.91 be visible only for 8-10 days. In his report at Exhibit-292, he is shown to have inspected five works. One is about painting of a building. Out of remaining four works, two were stated to have been carried out; about one the witness found it difficult to opine; and the site of the fourth work could not be located as the Junior Engineer was new to the area. 28. PW-85 Shri Pundlik Bagade was an engineer serving as Deputy Director with the Anti-Corruption Bureau. He carried out inspection on 28-7-1982 after rains had set in. He had admitted in his cross that current repairs will disappear on account of heavy rains, traffic and wind. Therefore, his inspection in the midst of rainy season was unlikely to be conclusive of the fact as to whether repairs were carried out or not. The learned trial Judge too does not seem to have based his conclusions on evidence of these two 29 APPEAL-GROUP-683.91 witnesses - PWs-79 and 85. He has mainly relied on the evidence of lay persons, Investigation Officer PW-89 PI Jadhav and report at Exhibit-325 of Shri Shinde, who is