A SOM NAm

UNION OF INDIA & ANR.

May 25, 1.171 • [G. K. M!TJ'ER, c. A. .VAID!ALINGAM AND P. JAGANMOHAN

REDDY 11.)

Preventio". of Corruption Act (2 of 1941), •· 5(1)(c}--Scope of.

Sanction for pr0Jecution-Principle1 for granting.

Practice and Procedure-Duty of prosecution to examine all Witne.JJes- Scope of.

Tho appellant who was a Major in the Military Engineering Service, was in charge of the expansion work of an air strip and was given po5session of the land acquired for that purpose, along with valuable crops standing on the land. He postponed giving delivery of the land to the contractor for the extension work. Instead, he allowed one of the owner, s cf the land to cut the crop and take it away without in any way accounting fer it. A charge-sheet was filed against the appellant under s. 5(1) (c) and s. 5 (l)(d) read withs. 5(2) of the Prevention of Corruption Act, 1947. He was acquitted of the offence under s. 5(1) (d) but was convicted for the offence under •. 5(1)(c) and the conviction was confirmed by the High Court.

In appeal to this Court, it was contended inter alia (1) that the .; anction &iTen by the Government or bis prosecution did not cover the trial of the char10 under 1. 5(1) (c); and (2) the prosecution did not examine all tht witn...,.. necessary to unfold the story of the prosecution.

HELD: (I) For a sanction to be valid it must be established that the sanction waa aiven in respect of the facts constituting the offence with which tho accused is proposed to be charged. It is desirable that the facts 1hould be referred to in the sanction itself. If they do not appear on th• face of it, tho prosecution must establish aliunde by evidence that tho .. tacts were placed before the sanctioning authority.

The sanction must disclose that the sanctionin11 authority bad fully applied its mind to the• and the sanction should be correlated to the particular offence or offencH witll which tho accused io cbaried or convicted. [8S2B-F)

In the present cue, the facts which the Government considered for tho purpose of grantinll sanction were :(a) that the appellant "'"' a public servant entrusted with crops standing on tho land acquired for !be exsion of an air field, (b) that by abnsing bis position as a public servant he allowed standing crop to be cut from the said land, (c) that by corrupt or IDegal means and by abusing his position as a public servant be obtained pecuniary advantage of about Rs. 2,000 as the value of the crops that were cut from the land and that he dishonestly or fraudulently misappropriated the same by converting it into his own use. Under s. S(I) (c) of the Act a public servant shall be said to have committed the offence of misconduct in bis duties if he dishonestly allows any other person to convert to his own use property which is entrusted to the said public servant.

The facts which have been set out in the order granting th• sanction are sufficient to indicate that tho authorities granting the sanction had tho

SOJ.I NATH v. UNION (Jaganmohan Reddy, J.) 849

offence under s. 5(1)(c) in their contemplation. In fact, the order specifi- A cally mentions that provision while granting sanction. Even if there was an inference or implication that the persons cutting the crops were abetting the appellant in the offence the sanction could not be held to be bad on that account. [854D, 855DJ

Bhagat Ram v. State of Puniab, A.l.R. 1954 S.C. 621, Madan Mohan Singh v. State of U.P. A.l.R. 1954 S.C. 637, Goku/ Chand Dwarkadas Morarka v. The King, A.l.R., [1948] P.C. 82 and .Jaswant Singh v. State of B Puniab, [1958] S.C.R. 762, referred to.

(2) With reference to each one of the person who, according to the appellant, should have, been called as witnesses there was alerady evidence relating to the particular matter about which those persons would have given evidence.

In the circumstances the non-examination of other witnesses, without anything more, could not be treated as a defect in the prosecution. [863G] C

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 102 of 1969.

Appeal by special leave from the judgment and order dated April 9, 1969 of the Punjab and Haryana High Court in Criminal Appeal No. 1055 of 1966. D

Frank Anthony and K. B. Rohatgi, for the appellant.

H. R. Khanna and R. N. SachJhey, for the respondents.

The Judgment of the Court was delivered by

Jaganmohan Reddy, J.-This Appeal is by Special leave against the Judgment of the High Court of Punjab and Haryana confirming the conviction of the accused under Section 5(l)(c) of the Prevention of Corruption Act 1947 as also Ille sentence awarded by the Sessions Judge of orie year's Rig';3lmprisonment and a fine of Rs. 2500, in default sl1r m Rigorous Imprisonment.

The facts of the case in lirief are that in view of the Chinese invasion Air Field at Sirsa required to be extended for which purpose the Ministry of Defence, Govt. of India took steps to acquire some lands of agriculturists pursuant to which a Notification dated November 27, 1962 was issued under Section 4 of the Land Acquisition Act 1884 for acquiring 51.79 acres of land situated in the State of Ahmedpur. On the next day another Notification was issued under Section 6 of the Land Acquisition Act on November 28, 1962 and in view of the emergency action under Section 17 was taken for obtaining possession of the land W'ith a view to its development. The lands which were acquired belonged to several land holders including Moti Ram and P.W. 12 Kewal Chand. The Collector gave his award on 26-2-63 (Ex.

P. 26) in respect of these lands, which actually' measured 49.47

54--1 S. C. lndia/71

85(1

SUPREME COURT llEPORTS .[1971] SUPP. s.c.ll.

acres, at. Rs. 1350 per acre ounting to Rs. 66,784.50 np. Apart from this amount compensation was also awarded for standing crop amounting to Rs. 11,073.13 np.

Before the land was actually acquired the Appellant who was a Major in the Military Engineering Service was working as a Garrison Engineer and. was incharge of the extension. He had in anticipation of acquisition and execµtion of the work appointed A. B. Ranadive, P.W. ~4 as Assistant Garrison Engineer who was to be responsible for all the matters connected with the acquisition of land, demarcation of boundaries as an Engineer Incharge for execution of the contract and responsible for the maintenance of the Air Field. The work of the extension of Aerodrome was entrusted to one Telu Ram, P.W. 8 Contractor, with whom the M.E.S. Department entered into an agreement on December 3, 1962.

This agreement was Signed both by the Appellant and P.W. 14. The work according to that agreement was to be done in 2 phases-first phase was to commence on 10th January 1963 and was to be completed by 9th October 1963. After the completion of the first phase the second phase was to start on 10th October 1963 and completed by 9th May 1964. Pursuant to this agreement it is said that symbolic possession of the land which was acquired was taken over by the Tehsildar on !st February 1963, after which at any rate it appears from Ex. P. 24 that actual possession of this land was handed over by the said Tehsildar on 13th February 1963 to the Appellant. The receipt Ex. P. 24 bears the signature of N .. L. Handa, the Tehsildar and of Sukhchain Lal Jain, P.W. 11 on behalf of the Military Estate Officer and the Appellant. From this receipt it is evident that possession of 50.12 acres was handed over by the Tehsildar and taken over by the Appellant and the Military Estate Officer Sukhchain Lal Jain.

The case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the Appellant he sold the crop to Moti Ram and Kewal Chand for Rs. 2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor till die 5th Aprfi 1963 and misappropriated the money. In respect of this allegation the First Information Report (Ex. P. 29) was issued on 14-1-64 in whkh the following statement is rele vant:-

"lt is alleged that Major Som. Nath ace.used who is a Garrison Engineer Sirsa Air Field s'ubsequently sometime in the months of March and April 1963 permitted the .removal of the sta, nding crop val11ed at Rs. 11073'-13 by Sbri Moti Ram an_d KCW!!l Chand etc., after ptltig illegal gratification of Rs. 3000 from them. Ma1or Som

SOid NATH v. UNION (Jaganmohan Reddy, J.)

Nath did not account for this amount in the Govt. Revenues. He thus abused his position as a public servant and caused pecuniary advantage to said Shri Moti Ram and Kewal Cliand by giving them standing crops ivorth Rs. 13,000 for a consideration of Rs. 3,000 only, which amount he accepted for his personal use and thereby also abused his official position and obtained pecuniary advantage for himself in a sum of Rs. 3000.

The facts disclose the commission of the offence, of criminal misconduct as defined in Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act 1947 by Major Som Nath accused. A regular case is therefore registered and entrusted to Inspector Baldev Raj Handa for investigation." After this F.I.R. certain statements were recorded l)y the Military authorities being DA to DE, OM, DM/l, ON & DL of Mani Ram, Mulkb Raj, Ganpat Ram, Tetu Ram, Kewal Chand and Sukhchain Lal Jain. A chargesheet was filed against the Appel ]ant under Section 5(1)(c) and 5(1)(d) read with 5(2) of the Prevention of Corruption Act on 5-8,1966 after obtaining sanction from the Govt. of India, Ministry of Hlome Affairs on 11th April, 1966 as per Ex. P.23. The Special Judge acquitted the Appellant of the second charge namely that being a public servant he had by corrupt or illegal means or by otherwise abusing bis position as a public servant obtained for himself a sum of Rs. 2,500 from Moti Ram of Sirsa for cutting the crops and thereby committed offence under Section' 5(1)(d) punishable under Section 5(2). The accused was however convicted under the first charge for an offence under Section 5(1)(c) in that he being a Garrison Engi neer incharge of the Air Field Sirsa and in that capacity entrust ed with standing crops of Sarson, Gram and Lusan on 30 acres of land a part of 49 acres of land acquired by the Govt. and which had been valued at Rs. 11.073.13 by the Revenue authorities, dis- , honestly or fraudulently allowed Moti Ram of Sirsa to mi8appro

priate the said standing crop and thereby contravened Section S(l)(c) of the Prevention of Corruption Act punishable with Section 5(2) of that Act. Against that conviction and sentence he appealed to the High Court which maintained the conviction and sentence.

The learned Advocate for the Appellant has meticulously taken us through the entire documentary and oral evidence and commented at length upon the various contradictions ahd incon gruities. in .the case of the prosecution "".Ith a view to establishing that when. the Appellant took possession of the land there was

no cro" standing on it:...-Otat the po5session of the land was in fact delivered to Tetu Ram, O, ntractor on I 0.1-1963 : that the sai!f <".Ontractor bad admitted that possession of the entfte land

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

was received by him ; that he carried on the construction work in extending the Aerodrome; that 200/250 donkeys were also used for doin2 the work by reason of wb.ich the crop was damaged before Tehsildar had put the Appellant in possession of the land and as a matter of fact there was no crop thereon when he got the possession of the land. It was also contended that the High Court had not considered the contradictions in the earlier statement made by some of the witnesses to the Military authorities and that it relied on many of the documents for affirming the conviction of the Appellant without their actually being put to him under Section 342.

Before we consider these contentions it is necessary to deter mine another submission of the learned Advocate for the Appellant which goes to the root of the jurisdiction of the Court to try the offence, under Section 5(l)(c). H this contention is valid then the conviction of the accused cannot stand and therefore it is necessary to deal with this matter first. It may be mentioned that though a complaint was made in the application for a certi ficate for leave to appeal to this Court that tbe learned Single Judge of the High Court should have acquitted the Appellant on the sole ground that there was no proper sanction for the prosecution of the Appellant under Section 5(1) (c) of the Prevention of the Corruption Act, this question does not seem to have been urged before the High Court. In any case we do not think that there is any validity in the submission that the sanction given by the Govt. of India does not cover the trial of the charge under Section 5(!)(c) of the Prevention of Corruption Act. For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the ac- . cused is proposed to be charged. Though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. It is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded.~

The sanction that has been accorded is in the following terms: 11th April 1966. "Whereas it is alleged that Major Som Nath ...... while functioning as Garrison Engineer, M.E.S., Air Field at Sirsa from 13-2-63 to 5-4-1963 by corrupt or illegal means or by otherwise abusing his position, as such public mervant, obtained pecuniary advantage of Rs. 2500 for alfoWiq the standing crops to be cut from the land

acqullied for the extension of Air Field Sirsa ; and or he dishoneltly or fraudulently realised and misappropriated Rs. 2SOO during the aforesaid period as the value of the

SOM NATH' UNION (Jaganmohan Rtddy, J.) 853

crops cut from the land acquired for the extension of Air Field Sirsa, which crops had been entrusted to him as a public servant and he instead of depositing the said sale price into the Govt. Treasury converted it to his own use;

And whereas the said acts of Major Som Nath ... ; .. constituted offences punishable under Section 5(2) of the Prevention of Corruption Act, read with Section 5(1) (c) and (d) (Act No. II of 1947) of the said Act and Sec tion 409 of the I.P.C.

And whereas the Central Govt. after fully and carefully examining the materials before it in regard to the said allegations and circumstances of the case, consider that Major Som Nath ...... should be prosecuted in a court of law for the said offences.

Now therefore, the Central Govt. doth hereby accord sanction under Section 197-Code of Criminal Procedure (Act No. 5 of 1898) and Section 6(!)(a) of tire Prevention of Corruption Act, 1947 (Act U of 1947) for the prosecution of Maj. Som Nath for the said offences and for any other offences punishable under the provi sion of law in respect of the afortiaid acts by the Court of competent jurisdiction.

By order and in the name of the President.

Sd/- (A, P. Veera Raghavan) Deputy Secretary to the Govt. of India."

From the above order it is apparent that the facts which the Central Govt. considered for the purposes of according sanction were (a) that the Appellant as a public servant was entrusted with crops situated on the land acquired for the extension of Air Field, Sirsa;

(b) that by abusing his position as a public servant he allowed the standing crops to be cut from the said land ;

(c) that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage of Rs. 2500 as the value of the crops to be cut from the land and/or he dishonestly or fraudulently misappropriated that sum by con verting It into his own use instead of depositing the said sale price in the Govt. Treasury.

On these facts and after applying its mind as spoken to by P.W. 10 Kalra the Government accorded its sanction for prosecution of the offences punishable under Section 5(2) read with

SUPREM( COURT REPORTS (1971] SUPP. s.c.a.

Section 5(1)(c) and 5(1)(d).

The question therefore would be whether these facts were sufficient to sustain the sanction wider 5(1)(c) even if the charge under 5(1)(d) had failed. This question in turn will depend upon what are the ingredients of the offences under 5(l)(c) and (d) read with Section 5(2). Under 5(1)(c)-A Public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappro priates or otherwise converts for his own use any property en trusted to him or under his coi; itrol as a public servant or allows any other person so to do, and tinder (d) if he by corrupt or illegal means or by otherwise abusing his position as a public servant. obtains for himself or for any other person any valuable thing or pecuniary advantage.

It would be seen therefore that under Section 5(1)(c) a public servant will be said to commit the offence of misconduct in his duties if he dishonestly allows any other persons to convert te> his own use property which is entrusted to the said public servant The facts which have been set out in the order granting the sanc tion certainly are sufficient to indicate that the authorities grant ing the sanction had the offence under Section 5(l)(c) also in their contemplation. In fact the order specifically mentions thisprovision while granting sanction.

We should have thought this was an obvious conclusion but the learned Advocate for the Appellant strenuously contendeO' that the charge against the Appellant was of a motiveless offence and in any case the facts as disclosed show that not only at the time when the First Information Report was given but even at the time when sanction was accorded that the prosecution wa~ merely concerned with th" charge that the appellant had allowed the crops to be cut on the condition that Rs. 2500 will be paid and received the monpy and misappropriated or converted it t<> his own use by not paying it into the Govt. treasury. There I! therefore no basis for sanction for a charge under Section 5(1)(c).

It is further contended that the stand taken by the prosecutioa was that the persons who were permitted to cut the crops had not commiited any offence. If so a charge under Section 5(1) (c) would implicate those persons also in the commission of an offence which certainly would not have been in the contemplation of the authorities granting the sanction. In support of this contention three decisions have been cited before us namely BM€at

Ram v. State of Punjab('), Madan Mohan Singh v. State of U. P. ('), and Gokulchand Dw(ll'kadas Morarka v.

The Kini (')

(1) A. I. R.. 1954 S. C. 621.

(2) A. I. R.. 1954 S. C. 637.

(3) A. I. R,. 1948 Privy Council 82.

SOM NATH v. UNION (Jaganmohall Reddy, J.)

Bhagat Ram's case was not concerned with the sanction but only

with the question, whether the offence could be altered to one of abetment of an offence of Section 409 I.P.C. from one under Sec tion 409 simpliciter. It was held that an alteration of the Appel !ant's conviction under Section 409 I.P.C. into one of abetment thereof would imply a definite finding against the subordinate Judge who is not before the Court and as such it would be unfair to make such an alteration. We do not see how this case can assist the appellant because in the first place there is no question of an alteration of the charge and secondly the circumstance that someone who is not a public srvant abetted the appellant is hardly relevant. But even so the offence with which the appel !ant is charged under Section 5(l)(c) does not necessarily involve an abetment with the person whom he had dishonestly allowed to cut and take away the crop. For instance it is quite possible that the person whom he allowed to cut the crop may be his own relation or friend in whom he may be interested and who may, however, not know that the accused was doing something dis honest in permitting him to cut the crop. In any case the facts which have been stated in the sanction clearly indicate that the appellant has dishonestly allowed the crops to be cut so that there is no question of any inference or implication that the peri<ms cutting the crops were abetting him in the offence. Even if it were so the sanction cannot be held to be bad on that account.

Gokulchand Dwarkadas's case also is of no assistance to the appellant because in that case the sanction did not disclose the facts on which it was given but merely sanctioned the prosecution for a breach of certain provisions, Sir John Beamon! delive

ring the Judgement of the Judicial Committee, observed at pag~

84:

"But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that. those facts were placed before the sanctioning authority ...... Nor, in their Lordships' view, is a sanction given without reference to the facts a11nstituting tile offence a compliance with the actual terms of cl. 23. Under that clause sanction has to be given to a prosecution for the .contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order ; he must be charged with the commission of certain acts which. constitute a breach. and it is to that prosecution-that iS, for having done acts which constitute a breach of the Order-that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to

SUPREM!l COURT REPORTS [1971] SUPP. s.c.ll.

constitute a breach of the Order, and the sanction is invalid"

The case of Jaswant Singh v. The State of Punjab(') was also cited by the Respondent's advocate in support of the contention that the trial of two offences requiring sanction was not valid.

In that case sanction was given under Section 6 of the Prevention of Corruption Act 47 for the prosecution of the appellant for having received illegal gratification from one Pal Singh. He was charged with and tried for two offences under Section 5 (I) (a) of the Act for habitually accepting or obtaining illegal gratification and under Section 5(1)(d) for receiving illegal gratification from Pal Singh. The Session Judge had found that both charges were proved. While in Appeal the High Court held that the Appellant could neither be tried nor convicted of the offence under S(l)(a) as no sanction had been given in respect of it but upld. the conviction under Section 5(1)(d) for which sanction had been given. A perusal of the sanction would show that the sanctioning authority had applied their mind to only one instance but the prosecution were seeking to make the sanction cover the offence of a habitual bribe taker which clearly implies that the sanctioning authorities must consider the number of instances when the accused took bribes and on what occasions as would justify a charge of his being a habitual bribe taker. Sinha, J, as he then was while dismissing the appeal observed at page 766:-

"In the present case the sanction strictly construed indicates the consideration by the sanctioning authority of the facts relating to the receiving of the illegal gratification from Pal Singh and therefore the appellant could only be validly tried for that offence. The contention that a trial for two offences requiring sanction is wholly void. where the sanction is granted for one offence and not for the other, is in our opinion unsustainable. Section 6(1) of the Act bars the jurisdiction of the Court to take cognizance of an offence for which previous sanction Is required and has not been given. The pro- secution for offence under S. 5(1) (d) therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh, but the offence of habitually receiving illegal gratification could not be taken cogm

zance of and the prosecution and trial for that offence was void for want of sanction which is a condition precedent for the Courts taking cognizance of the offence alleged to be committed and therefore the High Court has rightly set aside the conviction for that offence."

(I) [1958] S. C. R. 762.

sou: NATI! v. UNION (Jaganmohan Reddy, J.) 157

1'bae cases instead of supporting the contention of the lear A ned Advocate amply demonstrate that the facts which formed -the basis of the sanction and which was accorded after the

mnctioning authority had fully applied its mind to them, should be correlated to the particular offence or offences with which the accused .is charged or convicted.

In our view there is no justification for holding that the con viction under Section S(l)(c) read with 5(2) is bad for want of the requisite sanction.

Now on the merits of the case as we said earlier the learned Advocate for the appellant has referred to the evidence in meticu lous detail and has commented thereon at length but this Court ordinarily does not reappreciate the evidence with a view to arriving at its own finding as if it was a Court of fact and does not ordinarily upset the findings of the High Court which has on an evaluation of the evidence affirmed the trial court's conviction and sentenre. It has been contended firstly that the High Court was in error in relying on certain evidence for convicting the accused which was not put to him. Secondly the evidence that was necessary to unfold the story of the prosecution has not been produced by the prosecution but the Trial Court and the High Court ignored this lacuna in the prosecution case. Thirdly the Judgments show that there was utter confusion in respect of the date on which possession of the acquired land was given to the Appellant and the date on which it was given to the Contractor for carrying on the work, as also in respect of the fact whether there was any crop standing when the Appellant took possession Qf the land and at what period of time the crop was cut and the work commenced.

Before we deal with the contentions urged on behalf of the Appellant it is necessary to have a clear picture of certain broad features of the case. The Air strip which was being extended is in one straight line with Taxi-ways.

P.W.14 Ranadive tells us that if one were to go from the entrance of Air Field to the acquired land one would have to pass through RD 4500 to 1200.

The acquired land extended from RD 1200 to RD 00. Accord ing to P.W. 8 Telu Ram, he acquired possession of the land of the length from RD 4500 to RD 1200 on 10th January 1963 and that the possession of the acquired land was not delivered to him as it had not been acquired by that time. Ex. DQ review report which is headed Technical Administration Contract shows that the date of review was 9th February 1963. In this document the date of the conclusion of the contract is given as 3rd December'62 and date of commencement of work as 10th January'63, date of completion of 1st phase 9th October '63 and second phase 9th

SUPRBMB COURT REPORTS [1971] SUPP. s.c.R.

May 1964. To the Question "Have all sites been handed over on due date" the answer shown was an affirmative 'yes'. There is however nothing in this doument to show what is the site of which possession was handed over to and taken by Telu Ram on

10th January '63. It is not the case of the Appellant that acquisition of the land on which the crop was standing had taken place nor could possession of it been handed over to him because he denies that there was any crop on the land when the possession of the land was handed over to him. That there was crop on the land is amply born out by a letter of the Appellant dated 12th Febru ary 1963 addressed to Mr. G. L. Nagpal, Sub-Divisional Magistrate, Sirsa. In this letter he says:-

"12th Feb. 1963.

My dear Mr. Nagpal,

I am writing to you with regard to acquisition of land for Sirsa Airfield.

As you know, the Additional Deputy Commissioner Hissar will e visiting this location on 13th Feb. 1963. The Military Estates Officer, Delhi, Mr. K. K. Gamkhar will also be here on 13th morning._ It is desirable that entire proceedings with regard to acquisition of land and determining compensation for standing crops for the total area of 39.58 acres in Mirpur and Ahmadpur villages are finalised on this date. As I have told you personally, we are keen to finalise the proceedings for the total area to be acquired by us and not by phases. This is in the interest of the project. I therefore request you to Issue suitable instructions to your staff so that all the relevant papers may be suitably prepared."

Even If Exhibit DO gave a correct picture, it could be in relation to the airstrip already in existence, as this would be necesiary for a contractor who is charged with duty to carry out extension work to go on the site collect materials and get everything ready to execute his contract. In fact as we have noticed earlier this is what Telu Ram says in his evidence, namely that on 10th January'63 no delivery of possession of the remaining land other than RD 4500 to 1200 (the land in which there is the existing

run-way) was given. It was then that he wrote on 23-1-1963 as per Ex. 8 to the Assistant Garrison Engineer complainin!l that the possession of ti?e hole of the land had no! been d~Uvered him. A copy of this letter was sent to. the Garrison Engmeer-the Appellant. This letter shows two thmgs (a) that complete liW _.SOO to 0 ft. has not yet been handed over "is it was presumed

SOM NATH v. UNION (Jaganmohan Reddy, J.)

that the possession of the land could not he had so far" and (b) that as levels have not been given, the final excavation of the foundation cannot be done and all subsequent operations are therefore withheld.

This letter clearly indicates that some excavation was being done as otherwise there is no meaning in saying that final exca vation cannot be done. This Is also consistent with the other evidence that some work was in progress which again is in accord with the evidence of Telu Ram P.W .. 8 that he got the possession of RD 4500 to RD 1200. The extension of the Airstrip would mean that the existing Airstrip is being extended, so that the initial work can be started and continued on the existing Airstrip. It is not as if the existing Airstrip ends at the boundary of RD 4500 to RD

1200, so that the work of extension can go on in the existing Air strip even before possession of the acquired land was given. This is further confirmed by a perusal of the letter written by the Appellant to Telu Ram P.W. 8 in reply to his Jetter dated 28th February'63 (not produced) that "Necessary possession of the runway and taxi track has already been given to you. You are therefore requested to set out the work and get the same approved by the Engineer-in-charge before starting the work".

This shows that no work had in fact been undertaken on the land acquired and also that possession of the existing runway and track had already been given.

Nothing is specifically mentioned about possession . of the acquired land being given to him on that. date. The work on that land is only at the stage of getting approval.

Now the next question is when was the possession of the acquired land obtained by the Appellant and when did he deliver it to P.W. 8. P.W. 14, says that symbolic possession was delivered to him in respect of the acquired land on the 1st February'63.

It would howver appear from Exh. P. 24 that actual possession was delivered to the Appellant on 13th February '63 as per the delivery receipt executed by him, the Tehsildar and P.W.11, a representative of the Military Estate office and that even accrd ing to his letter already referred to Ex. P.13 there was standing crop on the land as otherwise there is no meaning in the Appellant saying therein that it is desirable that entire proceedigs with regard to acquisition of land and determining compensation for standing crops for the total area of 39.58 acres are finalised on the 13th February.

There is also <:redible evidence that possession of. the acquired land was not handed over to the contractor till late ill March '63 though it was handed over to and taken over by the Appellant on 13-2-63 .. The Khasra Girdawari. Ex. P.3 would show that there was a crop of Sarson (Mustard), Gram and Lusan, at any rate on

85&

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

20th March '63 at a time when the land has been shown therein to have been in possession of the Military authorities.

Ex.

P. 2 is a certified copy by the Tehsildar dated 18-9-63 which shows that as per the Girdawari on 20-3-63 crops were standing on the lands in the village Ahmedpur acquired by the Military authorities for Sirsa Airfield construction, the details of which were that the total land acquired for Airfield 49 acres, the land on which crops were standing in good condition 23 acres and the land on which crops were standing in damaged condition 7 acres and uncultivated land 19 acres.

Mani Ram Patwari had stated that by the 20th March 1963 some ground had been cleared. Sukhchain Lal Jain P.W. 11 who had also come to obtain possession on behalf of the Military Estate Officer had said that he had seen some part of the crops had been cut by 13-2-1963, but was not aware who had cut them.

This evidence, however, does not assist the accused. At the most it shows that a small portion of the crops were cut but it is apparent that that has not been taken into account by the Collector in assessing the value of the crop because it iS on that day that crops were inspected for that purpose and subsequently the Agricultural Officer also had in his letter dated 18-2-63, which has been cited in the award Ex. P. 26 intimated that on inspection the crops were found to be very good. He had also given the approximate yield and the rate at which the crop can be valued with which the Collector agreed and awarded compensation. It is therefore clear that in estimating the crop, the small portion of the land where crops were stated to have been cut by the 13-2-63 even if true could not have been taken Into account. It may also be stated that the Contractor had written to the Garrison Engineer on 28-2-63 requesting him to hand over immediately the possession of the remaining portion of the land so that excavation work is not held up. He also informs in that letter that the excavation in all available portions of the taxi track and runway has been completed. This again does not specifically refer to the land which is being acquired. At any rate on the 23rd March, 1963 P.W. 8 has again written to the Garrison Engineer namely the Appellant that the excavation of the taxi track could not be proceeded with for want of alignment to be given whkh was pending for want (because) of standing crops, in the land, the possession of which has not been given so far.

Thereafter the following pertinent statement appears namely-

"Now, today I find that the crops have been completely cut and as such it is requested that further necessary action in the matter of giving the alignment and possession of land may please be taken at your end." •

SOM NATH v. UNION (Jaganmohan Reddy. J.) 861

On the 6th April, 1963 he has again written to the Garrison A > Engineer saying as follows :-

"You have verbally asked me now to take the site after the crop is cut and the necessary marking of the alignment has been taken in hand but this handing over has not been shown on the site order book by the A.G.E.

(BIR) despite my request.

He may please be asked to complete this formality without any loss of time."

In reply the Appellant states in hls letter Ex. P. 12 dated the

10th April "The matter has already been discussed with you and finalised. No further action Is required to be taken".

It can be seen from the above that the appellant is reluctant to reply in writing as to what he is asking the contractor to do under verbal orders while the contractor for safeguarding his position is insisting on having it in writing.

The Trial Court as well as the High Court are in our view, justified in holding that crops of Sarson, gram and lusan were standing on the land acquired by the Military for extension of the Aerodrome. It will also justify the conclusion that they were there at any rate till the 20th March 1963 and according to the letter of the contractor (J'. W. 8) on 23-3-63 they were completely cut. In so far as handing over of the possession of the land to the Contractor (P.W. 8) is concerned, the Trial Court and the High Court are equally justified in coming to the conclusion that the accused had not delivered the possession of the land to the contractor till quite late as would appear from the letter of P.W. 8 dated the 5th April, 1963.

We are aware of the argument addressed before us that some of the witnesses had said that the water channels had been closed in Febiiiary 1963 and therefore no crop could thereafter have been standing on the land and must have been destroyed.

There is also the further argument that some of the statements recorded by the Military authorities were not taken into account, as the High Court had thought that since the deponents denied the contents the officers who recorded the statement might have been called to show that they were properly recorded.

The learned advocate for the respondent also tried to support the stand taken by the High Court. It is true that when a witness has admitted having signed his previous statements that is enough to prove that some statement of his was recorded and he had appen ded his signature thereto. The only question is, what use can be made of such statements even where the witness admits having signed the statements made before the Military Authorities. They

$62

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

can at best be used to contradict in tbe cross-examination of such a witness when be gives evidence at the Trial Court of tbe accuied in the manner provided under Section 145 of the Evidence Act.

If it is intended to contradict the witness by tbe writing, the atten tion of the witness should be called before the writing can be proved to those parts of it which are to be used for the purpose of contradicting him. If this is not done, the evidence of the witnesses cannot be assailed in respect of those statements by merely proving that the witness had signed the document. When the witnesses are contradicted by their previous statements in the manner aforesaid, then that part of the statements which has been put to the witness will be considered along with the evidence to assess the worth of the witness in determining his veracity.

The whole of the previous statement however cannot be treated as substantive evidence.

We do not find that tbe assessment of the evidence by the Trial Court and the High Court even in the light of such of those previous statements that have been put to the witnesses in the manner stated above is in any way unjustified.

It is said that some of the documents i.e. Ex. 8, IO and 11 have not been put to the witnesses even though the Court relied upon them. Ex. P.8 as already noticed is the letter of Telu Ram Jain to the Assistant Garrison Engineer and P. IO is the letter of Telu Ram Jain to to the Garrison Engineer.

Both these related to possession of the acquired land not being given to him. In the examination of the accused under Section 342 the Special Judge in our view did put all the circumstances against the accused which formed the basis of the conviction. He was asked about the symbolic deli very of possession, the handing over of the actual possession of the land on 13-2-63 and the existence of crops on the date when posses sion was delivered on 16-2-63. He was asked about Telu Ram's evidence and also that he had given possession of the land RD 1200 to RD 00 to the contractor after the crop had been cut. The letter Ex. P. 13 was also put to him and he was asked about the existence of the crops. It cannot, therefore be said that circum

stances appearing against the accused which have formed the basis of the conviction had not been put to him. The appellant has denied that there was any standing crop on the land acquired on any date after 13-2-63. On tbe other hand, he emphatically asser ted that at the time when the possession was delivered to him on 13-2-63 there was also no crops standing on the acqnired land.

This statement is clearly false as it Is against credible documen tary evidence at a time when there was no possibility of any charge being levied against the appellant. It is also incorrect because the contractor did not work on the acquired land since 1-2-63 that position is reflected in the review report initiated by the A.G.E. on 9-2-63 (vide Ex. DQ). The appellant's statement is therefore

IOM NATH .. UNION(Jaganmohan Reddy, J.)

belied by the documentary evidence which shows unmistakably that there was on 13·2 63 bumper crops of different varieties standing on the land which was valued thereafter and compensation assessed. We do not, therefore, think that there is any justi fication in the criticism .that the circumstances appearing in the several documents have not been put to him.

It is lastly contended that certain witnesses who would be necessary to unfold the prosecution story have not been called and in spite of the Court directing the production of the usufruct register it was not produced. These omissions it is submitted by the learned advocate has prejudiced the accused. As the learned advocate for the respondent rightly pointed out with reference to each one of the persons who, it was claimed, should have been called, that there was already evidence relating to the particular matter about which the person specified was sought to be called.

For instance, it is said that Gamkhar, Military Estate officer was not produced to prove the receipt Ex. P. 24. But this was not necessary because Gamkhar was not present nor did he sign the receipt.

The person who had signed tbe receipt is Sukhchain Lal. Jain and he was examined as P.W. 11. Similarly, it is said that the Tehsildar N. L. Handa has not been produced. But when the prosecution relies upon the proof of Ex. P. 24 as also to establish that there was standing crops on the land when the possession was delivered on 13·2·63 on certain witnesses who were present on the respective occasions, the non-examination of other witnesses without anything more cannot be treated as defect in the prosecution. Before the High Court also this grievance was aired but that Court also likewise found no justification in it. We are therefore not impressed with this argument. On a careful considerathn of the evidence both oral and documentary it is established that the Appellant who was in charge of the expansion work on the air-strip was given possession of the land acquired for that purpose on 13-2-63, that there was standing thereon, a bumper crop of Sarson, gram and Lusan on that day, that he was therefore entrusted with this crop, that he postponed giving delivery of the land to the contractor till, at any rate after the 23rd March, 1963 and before the 6th April, 1963 and that he allowed the crop to be cut and taken away without in any way accounting for it which shows that it was done dishonestly and

SUPREHB COUllT Rl!PORTS [1971] SUPP.1.c.:1..

fraudulently. The fact that notwithstanding overwMlming evid ence particularly of his own ll<h¢ssion at the time he denies that there were ever any crops when delivecy of possession of the land acquired was taken: by him, further reinforces the conclusion that he allowed the crops to be cut away with disbonest oc fraudulent motive. We do not think in these circumstances there is any

jusllficalion whatever for interfering with the concurrent findinp of the Trial Court and the High Court that the Appellant is guilty of an offence under Section S(l){c) read with Section 5(2) of the Prevention of Corruption Act and consequently the appeal ia dismissed

Y:P.S.