PETITIONER:
S.K. KALE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT17/12/1976
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION:
1977 AIR 822 1977 SCR (2) 533
1977 SCC (2) 394
CITATOR INFO :
R 1979 SC 826 (20,21)
ACT:
Prevention of Corruption Act, 1947, s. 5(1)(d), onus
probandi, whether to be discharged by the accused.
Constitution of India, Article 136, Re-appraisal of
evidence under, when called for.
HEADNOTE:
The appellant was posted as the Local Purchase Officer
at the Army Ordnance Depot in Poona district. In connection
with the purchase of some engineering tools, charges were
brought against him under s. 5(1)(d) read with s. 5(2) of
the Prevention of Corruption Act, for having procured pecu-
niary benefit for a certain contractor by corrupt means,
thereby causing wrongful loss to the army department. The
Trial Court convicted the appellant, and in appeal the High
Court confirmed the conviction. The Supreme Court granted
him Special Leave to appeal under Art. 136 of the Constitu-
tion, and allowing the appeal,
HELD: 1. Both the courts below had proceeded on the
footing that it was for the accused to prove the ingredients
of s. 5(1)(d) of the Act. This approach was wrong. It was
for the prosecution to prove affirmatively that the appel-
lant by corrupt or illegal means or by abusing his position
obtained any pecuniary advantage for some other person. [536
C-D]
2. Normally this Court in special leave against a con-
current judgment of the High Court and the trial Court does
not re-appraise the evidence, but here we find that both the
courts below have drawn wrong inferences from proved facts
and have made a completely wrong approach to the whole case
by misplacing the onus of proof which lay on the prosecution
on the accused and presuming that the accused had a dishon-
est intention. [536 B-C, H]
Narayanan Nambiar v. State of Kerala [1963] Supp. 2 SCR
724; 730-731, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
301 of 1971.
(Appeal by Special Leave from the Judgment and Order
dated the 15th/l6th June 1971 of the Bombay High Court in
Criminal Appeal No. 1405 of 1969).
P.H. Parekh and Miss Manju Jatley, for the appellant..
H.R. Khanna and M.N. Shroff, for respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.—Corruption and nepotism is so rampant
in our society of to-day, and more particularly in the
services, that the Indian Penal Code was not considered
sufficient to meet this menace, and the Prevention of Cor-
ruption Act, .1947 (Act II of 1947)–hereinafter referred to
as ‘the Act’–had to be enacted and amended from time to
time to stamp out this evil. This is an appeal by special
leave
534
directed against the judgment of the Bombay High Court
affirming the conviction of the appellant under s. 5(1)(d)
read with s. 5(2) of the Act and the sentence of six months
rigorous imprisonment passed by the Special Judge, Bombay.
The facts of the present case are more or less undisputed
and are the least complicated and, therefore, they fall
within a very narrow compass, and by and large we have to
examine whether or not the inferences drawn by the High
Court from the proved facts are legally correct and lead to
only one hypothesis, namely, that the accused is guilty.
It may. be necessary to give a resume of the prosecution
case before indicating the evidence and the circumstances
relied upon by the courts below in convicting the appellant.
The appellant was a senior officer in the Army, holding the
rank of a Major, and was at the material time the local
Purchase Officer, hereinafter to be referred to as LPO, at
Ordnance Depot at Talegaon Dabhade, District Poona. Fol-
lowing the Chinese attack in 1962 an Emergency was declared
and the Army required certain engineering tools to be sup-
plied immediately. The Ordnance Depot, Jabalpur, sent a
requisition of engineering tools to the Ordnance Depot at
Talegaon Dabhade, Poona. In this connection the Control
Officer of the Ordnance Depot wrote a letter to the Group
Officer requesting him to despatch the stores immediately.
The Group Officer consequently wrote a letter to the appel-
lant who was the LPO at the relevant time to arrange the
supply of stores immediately. The appellant was directed to
purchase the stores locally and to deliver them to the Group
Officer. The Group Officer also indicated in his letter
that the stores requisitioned by him were not available at
the Depot at Talegaon. The detailed list of the tools, while
is at Ext. 9, was received by the appellant on March 27,
1963. On the same day the Chief Ordance Officer passed an
order enabling the LPO to immediately purchase the tools on
cash purchase basis.
We might pause for a little while in order to explain the
nature of the order passed by the Chief Ordnance Officer.
It appears that the normal procedure in the Department was
that the LPO had to draw cash and then go to the market and
purchase the goods against cash. But in view of the Emer-
gency and the immediate necessity of the tools this proce-
dure was waived and the appellant was permitted to buy the
tools on covering purchase order basis; in other words, the
appellant could himself purchase the tools without obtaining
the previous sanction of the Chief Ordnance Officer, and on
receiving the bills from the supplier and processing the
same could get them sanctioned by the Chief Ordnance Officer
and then make the payment to the supplier. According to the
prosecution the appellant, a day after he received the list,
Ext. 9, placed orders with Jayantilal Himatlal Shah, P.W. 2,
for supply of the tools. It is not disputed that P.W. 2 was
one of the contractors on the approved list of the Depart-
ment, and still continues to be so. P.W. 2 further assured
the appellant that he would make the supply as early as
possible, and that .he would do so at moderate rates. P.W. 2
accordingly procured .the articles from Bombay and delivered
the same in the Depot by April 6, 1963 along with his bills
after which
535
the bills were placed before. the Chief Ordnance Officer
and after sanction by him the payment was made to P.W. 2.
Apart from engineering tools there was another requisition
for the supply of 900 dessert spoons. The appellant first
wanted to place this order also with P.W. 2, but he found
that his rate was a little higher than the rate which was
tendered to the Department sometime before, and, therefore,
placed orders with another firm of M/s Devichand Lalchand
Gandhi, P.W. 11, and received 900 dessert spoons of stain-
less steel from them.
Sometime in 1964, P.W. 18, an Inspector of Police in the
Office of Special Police Establishment, Bombay, received
some information regarding the appellant having committed
an offence punishable under the Act on the basis of which he
recorded the First Information Report on January 25, 1964.
Thereafter he obtained the permission of the Special Judi-
cial Magistrate for investigating the case and eventually
submitted a chargesheet against the appellant before the
Special Judge, Bombay, on April 28, 1966 as a result of
which the appellant was tried, convicted and sentenced by
the Special Judge, and his appeal against the said convic-
tion and sentence before the High Court failed.
The gravamen of the allegation against the appellant is
that although the supplies were to be made as quickly as
possible the appellant made a deliberate departure from the
normal procedure which was adopted in the Department, in
that he followed the procedure of covering purchase order
basis and placed orders with P.W. 2 a,lone without making
any enquiries from the local market whether the tools were
available there. It was also alleged that by placing orders
with P.W. 2 the appellant caused P.W. 2 to earn a profit of
45% and thereby caused wrongful loss to the Army Department.
It was further alleged that a number of firms in Poona were
prepared to supply the goods required at a much lesser
profit of 10 to 15 % and the appellant made no enquiries
whatsoever from these firms although some of them were also
on the approved list of the Department. On the basis of
these circumstances only the prosecution sought the convic-
tion of the appellant. The appellant pleaded innocence
and denied that he had any intention to cause pecuniary
benefit to P.W. 2. The appellant submitted that the arti-
cles were very urgently required and as no time was left he
had to act quickly and take immediate decisions. It was for
this purpose that the normal procedure was waived and the
Chief Ordnance Officer permitted him to adopt the covering
purchase order system. As regards the enquiries from the
local market, the definite case of the appellant in his
statement under s. 342 of the Code of Criminal Procedure was
that he had in fact made enquiries from a few firms and his
enquiries revealed that either the firms did not possess the
goods themselves or that they were not dealers in all the
goods. He further expressed his ignorance that P.W. 2 made
a profit of 45% and pleaded, on the other hand, that he was
given to understand by P.W. 2 that the articles would be
supplied at moderate rates. The appellant seemed to suggest
that as all the articles required were not available in the
local market he thought it a prudent act to place orders
with a person who was in a position to supply all the tools
required at one stretch instead of running from one dealer
to another for purchasing goods piecemeal, and as P.W. 2 was
prepared to supply all the goods himself and he was also
on the 18–1546 SCI/76
536
approved list of dealers the appellant decided to place
orders with him. He made no secret of the fact because all
the higher officers, including the Chief Ordnance Officer,
sanctioned the bills sent by P.W. 2. The Trial Court, after
consideration of the evidence and circumstances, found
that the appellant had by corrupt means procured pecuniary
benefit for P.W. 2 and caused wrongful loss. The High Court
in appeal confirmed the finding of the Trial Court.
Normally this Court in special leave against a concurrent
judgment of the High Court and the Trial Court does not re-
appraise the evidence, but unfortunately in this case we
find that both the courts below have drawn wrong inferences
from proved facts and have made a completely wrong approach
to the whole case by misplacing the onus of proof which lay
on the prosecution on the accused. Both the courts below
had proceeded on the footing that it was for the accused and
not for the prosecution to prove that the accused made
enquiries from the local market or that he knew about the
rates, etc. This approach was obviously and manifestly
wrong. It is plain that it was for the prosecution to prove
the ingredients of s. 5(1) (d), which runs thus:
“5( 1 ) A public servant is said to
commit the offence of criminal misconduced.
(a)….
(b)….
(c)….
(d) if lie, by corrupt or illegal means or
by otherwise abusing his position as public
servant, obtains for himself or for any other
persons any valuable thing or pecuniary advan-
tage …. ”
In other words it was for the prosecution to prove affirma-
tively that the appellant by corrupt or illegal means or by
abusing his position obtained any pecuniary advantage for
some other person. In view of the clear defence taken by
the appellant it is obvious that it was for the prosecution
to prove that the accused made no enquiries, that the
accused made a departure from the normal procedure with
oblique motive, and that the accused knew that P.W. 2 would
make a profit of 45 % whereas others would be satisfied with
a profit of 10-15%. The High Court, to begin with, started
with the presumption that the accused led no evidence to
show that he made any enquiries. We might state at the .risk
of repetition that it was not for the accused to prove the
prosecution case but it was for the prosecution to disprove
what the accused said, namely, that he had made enquiries.
The prosecution could prove this fact only by producing
satisfactory and convincing evidence to show that the ac-
cused in fact made no such enquiries and he knew about the
margin of profit which other dealers would have made. We
shall immediately show that there is no legal evidence to
prove this fact. What the courts below have done is to
disbelieve the case of the appellant because he led no
evidence to show that he made any enquiries regarding the
availability of goods or the rates, and therefore the courts
presumed that the accused had a dishonest intention.
537
In the case of Narayanan Nambiar v. State of Kerala(1)
this Court had the occasion to consider the import and
interpretation of the words “corrupt or illegal means” and
the word “abuse”, as mentioned in s. 5 (1) (d). Tiffs Court
observed thus:
“Let us look at the clause “by otherwise
abusing the position of a public servant”, for
the argument mainly turns upon the said
clause. The phraseology is very comprehen-
sive. It covers acts done “otherwise” than by
corrupt or illegal means by an officer abusing
his position. The gist of the offence under
this clause is that a public officer abusing
his position as a public servant obtains for
himself or for any other person any valuable
thing or pecuniary advantage. “Abuse” means
mis-use i.e. using his position for something
for which it is not intended. That abuse may
be by corrupt or illegal means or otherwise
than those means. The word ‘otherwise’ has
wide connotation and if no limitation is
placed on it, the words “corrupt’, ‘illegal’
and ‘otherwise’ mentioned in the clause
become surplusage, for on that construction
every abuse of position is gathered by the
clause. So some limitation will have to be put
on that word and that limitation is that it
takes colour from the preceding words along
with which it appears in the clause, that is
to say something savouring of dishonest act on
his part …… The juxtaposition of the
word ‘otherwise’ with the words ”corrupt or
illegal means” and the dishonesty implicit in
the word “abuse” indicate the necessity for a
dishonest intention on his part to bring him
within the meaning of the clause?’
We are satisfied that the judgment of the High Court
runs counter to the principles laid down by this Court in
the case cited above, and the High Court does not appear to
have applied that principle in deciding the truth of the
case presented by the prosecution against the appellant. In
the instant case it is not alleged that the accused had
used any corrupt or illegal means. It has not been shown
that the accused himself accepted any illegal gratification
or pecuniary benefit nor has it been shown that he violated
any statutory rule or order. Thus, even on the prosecution
allegation the case of the appellant falls only within the
second part of s. 5 (1 ) (d), namely, abusing his position
as public servant. The abuse of position, as held by this
Court, must necessarily be dishonest so that it may be
proved that the appellant caused deliberately wrongful loss
to the Army by obtaining pecuniary benefit for P.W. 2.
After having gone through the evidence referred to by
the courts below we think the prosecution has miserably
failed to prove this fact. To begin with, the first circum-
stance relied upon by the High Court is that the accused
made a deliberate departure from the usual procedure of
purchasing against cash. According to the prosecution, the
procedure was that the officer should have drawn cash from
the office and then he should have gone to the market ’and
purchased the articles and
(1) [1963] supp. 2 S.C.R. 724, 730-731.
538
after having made the purchases he would obtain the sanction
of the Chief Commanding Officer. This procedure is known as
“cash purchase basis”. The accused, however, adopted the
procedure known as “covering purchase order”, i.e., he made
the purchases and got the bills sanctioned by the Chief
Ordnance Officer. It is not disputed that in the present
case, in view of the emergent circumstances the Chief.
Ordnance Officer himself had allowed the appellant to
make the purchases on the basis of cash purchase and had
himself sanctioned the bills tendered by the supplier, P.W.
2. All the bills were paid to P.W. 2 by cheque. It was
contended by the State that in the instant’ ease the appel-
lant had purchased these articles against cash and later on
obtained the necessary covering purchase orders. This is
not correct because the appellant had merely placed orders
with P.W. 2 for supply of goods and it was only after all
the goods had been supplied, verified and found correct that
the bills were forwarded to the Chief Commanding Officer for
sanction. The High Court itself found that Lt. Col. Pun had
passed an order directing the appellant as LPO to purchase
all the articles against cash immediately. In this connec-
tion the High Court observed as follows:
“Similarly, it is not in dispute that
regarding the mode of purchase, Lt. Col. Purl
had already passed an order directing the
appellant as Local Purchase Officer to pur-
chase all the articles against cash immediate-
ly.”
Even assuming that the appellant purchased the articles
against cash he was doing so in compliance with the orders
of the Chief Ordnance officer and there was absolutely no
reason for the High Court or the Special Judge to have drawn
inferences against the appellant for violation of the proce-
dure when the highest officer of the Depot had sanctioned
the procedure which was adopted by the appellant and had in
fact authorised him to do so in view of the Emergency. It
may be necessary to refer to the evidence of P.W. 2, Lt.
Col. Des Raj (P.W. 10) who stated that a covering purchase
order is sanctioned only when the Chief Ordnance Officer is
satisfied that there are special circumstances which neces-
sitate the sanction of the purchase order after the stores
are purchased. It is not disputed that the Chief Ordnance
Officer had issued a covering purchase order in this case.
In these circumstances the best person who would have thrown
a flood of light on the subject and whose evidence would
have clinched the issue whether or not the accused was
authorised to depart from the normal procedure was Col.
Anand, the Chief Ordnance Officer, who though examined by
the Police during investigations was not produced before the
Court. In the absence of his evidence there was no legal
justification for the court to hold that the accused had
departed, from the normal procedure without the authority of
the Chief Ordnance Officer, particularly when it is admitted
that a covering purchase order was passed by the said Offi-
cer and the bill was also finally sanctioned by him. In
these circumstances, therefore, the entire fabric of the
reasoning of the High Court as also that of the Special
Judge falls to the ground.
Another circumstance on the basis of which the appellant
was convicted was the fact that he made no enquiries from
the local suppliers, nor did he ascertain the rates. On this
question also the High Court, as well as the Special Judge,
have misplaced the onus on the accused.
539
To begin with, the accused has categorically stated in his
statement under s. 342, Cr.P.C., that he had in fact made
enquiries and had sent the Supply Clerk and one Deshmukh for
getting the rates and find out whether the stores were
available. The prosecution could succeed only in the state-
ment of the accused could be falsified and this could not
only be done if the prosecution had examined the Supply
Clerk who was sent by the appellant or Deshmukh, both of
whom were employees in the Army and in possession and
control of the prosecution, and yet none of these persons
were examined to falsify the statement of the accused. The
High Court, on the Other hand, was in error when it observed
that the accused did not produce either the clerk or
Deshmukh forgetting that it was not for the accused but
for the prosecution to prove that what the appellant had
said was false. Furthermore, reliance was placed by the
High Court and the Special Judge on the evidence of P.W.s
14, 15 and 16. P.W. 14 does state that his firm was dealing
in engineering tools and other articles and that he was on
the list of approved contractors of ,Ordnance Depot. He,
however, admitted that out of the articles required only 80
to 90 percent wet available with the firm. In cross-exami-
nation, when asked about a particular type of engineering
tool the witness was unable to state for what purpose it
was used. The witness admitted that he did not maintain any
stock register at the shop and the fact that the articles
were available was being deposed by him merely on the basis
of his memory. Finally, the witness admitted thus:
“I had not gone to Talegaon Ordnance
Depot to enquire whether any engineering tools
were required in the depot.”
The High Court seems to think that as this witness’s firm
was merely a retailor, therefore there was not necessity to
keep a stock register, The witness has nowhere stated that
he was a retailer and not a whole saler and, therefore,
there was absolutely no basis for the High Court to have
conjectured or speculated on this point in order to raise an
inference against the appellant. On the other hand, in the
absence of any document, register or inventory to show the
nature of goods the firm of P.W. 14 was dealing in, it is
difficult to accept the ipsi dixit of the witness consisting
of his bare statement based on pure memory that the engi-
neering tools were available six years before the date he
was deposing. Such evidence, in our opinion, is absolutely
worthless. In fact P.W. 18, the Inspector, has deposed that
in the course of his investigations he had seized the ac-
counts and documents of the local firms, and yet no document
was produced by the prosecution to show that P.W. 14 in fact
had in his possession engineering goods at the relevant
time. Furthermore, the witness positively states that he
never went to Talegaon Ordnance Depot to enquire whether
any tools were required. It was also not put to the wit-
ness whether the appellant personally or through one of his
employees had approached him regarding the supply of the
goods. In these circumstances, therefore, how possibly can
an inference be drawn from his evidence that the accused
made no enquiries whatsoever when the accused had positively
stated that he did. Finally, on the question of rates or
margin of profit also, the witness makes
540
only a verbal statement that he would have charged 10-15%
which cannot be accepted in the absence of documentary proof
of the fact that the firm had sold these articles during the
relevant time to various persons and made 10-15% profit
only. It is manifest that if the firm was carrying on
such a huge business then everything must have been writ-
ten in the account books which were in possession of the
Inspector and yet not produced. In these circumstances,
therefore, we are satisfied that the High Court misread the
evidence of P.W.14.
Reliance was then placed on the evidence of P.W. 15, Mahen-
drakumar, who is a partner of the firm known as ‘C. Ambalal
& Co.’ To begin with, he clearly admits that his firm was
dealing in hardware, paints, sanitaryware and only files
amongst the engineering tools. The witness further states
that Out of the articles mentioned in the list, Ex. 9,
only files, being items Nos. 75 to 94 and 96 to 99 were
available with him and could be supplied by him. He does
not say that he was in a position to supply the other engi-
neering goods also. Again, the witness makes only a verbal
statement without any documentary proof that he would have
charged 10-12% of profit on the amount spent. It may be
pertinent to note here that the appellant in his statement
under s. 342, has positively asserted that he did make
enquiries from the firm of Ambalal. Ambalal was examined by
the police but not produced in court and the explanation
given was that he was ill. That by itself is not a convinc-
ing explanation because the prosecution could have asked for
adjournment from the court to enable Ambalal to be examined
as a witness for he alone could have falsified the statement
of the accused whether or not any enquiry was made from him.
Finally, this witness himself states:
“I do not remember whether I was present
when the list, Ex. 9, was shown to Ambalal
when his statement was recorded.”
The evidence of this witness, therefore, does not exclude
the possibility of the accused having made enquiries from
Ambalal and the accused has in fact explained in his state-
ment that no orders could have been placed with this firm
because he was only in a position to supply files which
formed a very small component of the engineering goods
required. In these circumstances, therefore, the evi-
dence, of P.W. 15 does not falsify the statement of the
accused that he made enquiries from this firm but, on the
other hand, goes to support it. The High Court has observed
that if the appellant had made enquiries from P.W. 15, then
he would have undoubtedly remembered this fact. This process
of reasoning appears to us to be absolutely perverse. When
the witness himself does not remember whether the appellant
had made any enquiries in his presence then the natural
inference would be that he does not exclude the possibility
of the appellant having made an enquiry, and in the absence
of the examination of Ambalal it cannot be said that the
statement of the accused was false.
The next evidence on which reliance was placed was of P.W.
16, Taharbhai. This witness clearly admits that he had no
engineering goods in his stock and if an order had been
placed he could have
541
supplied them by procuring them from somebody else. In
these circumstances he was in the same position as P.W. 2.
This witness further admits that out of the list, Ex.9, only
files and drills were available, but the stock of these
articles was scanty. He again orally says that he would
have charged a profit of 15%. This witness admits that
he does not remember whether the appellant had come to his
shop on March 27, 1963 to enquire about the availability of
the goods and the rates of engineering tools. It was sug-
gested to him that enquiries were made from him by the
appellant and he said, that the tools were not available
with his firm. The evidence of this witness also suffers
from the same infirmities as are to be found in the evidence
of P.Ws. 14 and 15. He has not produced the stock register
nor any document or accounts or inventories to show that he
had all the goods required. His statement further does
not exclude the possibility of the accused having made
enquires from him, or at any rate does not falsify the
statement of the accused. As regards the margin of profit,
that is also ipsi dixit without any basis and is not sup-
ported by his account books.
It seems to us that before a presumption against the
accused could be raised that he knew that other firms would
have charged a much lesser profit than P.W.2, it should
have been proved by the production of account books of the
firms concerned and their dealings during the relevant time
that they had sold similar of identical goods and made only
a profit of 10-15%. The verbal statement of the witnesses
regarding the margin of profit which they would have made
had orders been placed six years back can carry no weight.
This is all the evidence on the basis of which infer-
ences against the appellant have been drawn. After having
gone through the evidence we are satisfied that the prose-
cution has not produced any reliable or conclusive material
to prove that the appellant had any dishonest intention in
causing pecuniary benefit to P.W. 2. Even assuming that
the accused departed from the normal procedure in view of
the urgent necessity of the articles it cannot be said that
this was done with a corrupt or oblique motive. The appel-
lant had been asked. by the Jabalpur Depot to supply these
articles immediately. The appellant, therefore, had t6 take
a quick decision and he was authorised to do so by his
Chief. Since P.W. 2 was prepared to supply all the goods
in bulk at one stretch the appellant may have thought it
better to place the orders with him. May be, that this was
an error of judgment or an act of indiscretion, but from
that alone an inference of dishonest intention cannot be
drawn. Moreover, P.W l0 has clearly stated thus:
“I had no reason to doubt the honesty
or sincerity of the accused during the period
he was serving under me.”
This would show that the appellant was really an honest and
sincere officer and his antecedents were good. Against this
background we should have expected much better and superior
evidence to justify inference of the accused having been
animated by a dishonest intention in placing orders with
P.W. 2.
542
There is yet one more intrinsic circumstance which
negatives the guilt of the accused. Although the appellant
had given orders with respect to all the articles to P.W. 2,
yet when he found that P.W. 2 was charging higher rate for
the dessert spoons he did not place orders for the same with
him but placed the orders with P.W. 11, who supplied at the
rate of Re. 1/- per spoon which was less than the rate at
which P.W. 2 was ready to supply. This shows that the
appellant did take due care and caution and did not act
blindly. There is absolutely no legal evidence on the record
to show as to what was the nature of the margin of profit
which the firms of P.Ws. 14, 15 and 16 had made if the
orders had been placed with them, and in the absence of such
an evidence the court would not be justified in holding that
the accused abused his position in causing pecuniary bene-
fit to P.W. 2. The appellant had admitted that if he had
known that P.W. 2 would have charged such a high profit he
would have been more careful.
On the other hand, what appears to us to be most sur-
prising is that although P.W. 2 was the sole beneficiary of
the whole transaction and had, according to the prosecution,
made profit of 45% and was, therefore, in the nature of an
accomplice, yet he continues to be on the approved list of
the departmental suppliers even on the date when he was
giving evidence. Such a conduct on the part of the depart-
ment can only be consistent with the innocence rather than
the. guilt of the accused. If the prosecution allegation
was true that P.W. 2 through his business influence ob-
tained the order in his favour, then before the prosecu-
tion was started against the appellant, P.W. 2 should have
been blacklisted. But this was not done. The High Court
appears to have been led away by the impression that the
appellant had personal relations with P.W. 2. There is,
however, no such evidence on record and P.W. 2 himself has
categorically stated that his relations with the appellant
were purely business relations as he used to visit the
office in connection with the supplies off and on. In these
circumstances, therefore, if P.W. 2 was not suspected by the
prosecution for having received huge pecuniary benefit much
less could the blame lie on the appellant.
In these circumstances, even if there was some amount of
carelessness or negligence on the part of the appellant it
is impossible to doubt his bona fides. He acted as a produ-
ent person and tried to get the supplies as quickly as
possible with the result that all the gods required by
Jabalpur Depot were supplied within two weeks.
A careful analysis of the evidence and the circumstances
would, therefore, show that the approach of the High Court
was clearly
543
wrong and that the inferences drawn by the High Court were
not at all warranted by the circumstances and facts proved
in the case. The entire charge against the appellant rested
on circumstantial evidence and the prosecution has failed to
prove that the circumstances were such as could be ex-
plained only on one hypothesis, namely, that the accused was
guilty.
For these reasons, therefore, the appeal is allowed,
judgment of the High Court set aside and conviction and
sentence imposed on the appellant are hereby quashed, and he
is acquitted of the charge framed against him.
M.R. Appeal allowed.
544