Allowed

Jayant Purushottam Dhaigude and 4 Ors. v. the State of Maharashtra

Bombay HC26 Apr 2011APEAL/683/1991

Case brief

AI extract

What is this about?

High Court allowed criminal appeals of government engineers and society chairmen convicted of cheating, forgery, criminal breach of trust, and corruption. The Court acquitted them due to insufficient evidence proving non-execution of road repair works and inadmissibility of an expert report.

What did the court decide?

Convictions set aside; appellants acquitted; bail bonds cancelled.

Jayant Purushottam Dhaigude and 4 Ors. Vs the State of Maharashtra — Corruption | Bombay HC (2011)

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1 APPEAL-GROUP-683.91

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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CRIMINAL APPEAL NO.683 OF 1991

¶5

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

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WITH

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2 APPEAL-GROUP-683.91

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CRIMINAL APPEAL NO.684 OF 1991

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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

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CRIMINAL APPEAL NO.695 OF 1991

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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

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APPEAL-GROUP-683.91

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¶14

CRIMINAL APPEAL NO.70 OF 1992

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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

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4 APPEAL-GROUP-683.91

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Shri V.N. Shingnapurkar for the Appellant/
original Accused No.1 in Appeal No.683/91.

¶18

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

¶19

Shri V.V. Purwant for the Appellant/ original
accused No.3 in Appeal No.683/91

¶20

Shri R.U. Vasekar for the Appellant/original
accused in Appeal No.70/92.

¶21

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

¶22

Shri S.C. Hali for Appellant/ original accused
No.2 in Appeal No.684/91.

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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).

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CORAM: R.C. CHAVAN, J.

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DATED: APRIL 26, 2011

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ORAL JUDGMENT:

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1.These appeals, directed against

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Judgment dated 11-12-1991 delivered by the
learned Special Judge, Solapur in Special Case

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No.4 of 1987, are being disposed of by this

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common Judgment. Criminal Appeal No.683 of 1991

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5 APPEAL-GROUP-683.91

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is filed by the original accused Nos.1 to 4 and

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6, Criminal Appeal No.684 of 1991 is filed by

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the original accused No.5, 10 and 23, Criminal

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Appeal No.695 of 1991 is filed by the original
accused No.14 and Criminal Appeal No.70 of 1992

¶36

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

¶37

sake of convenience appellants in these Appeals
challenging their convictions are referred to
by their numbers as accused in the trial Court.

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2.Facts which are material for deciding
these Appeals are as under :-

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Accused Nos.1 to 3 were serving

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respectively as Deputy Engineer and Junior
Engineers in the Building and Construction (B &

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6 APPEAL-GROUP-683.91

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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

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individuals associated with the Societies and
hadallegedlyhelpedSocietiesin

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misappropriating amounts sanctioned for works
alloted to the Societies.

¶45

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

¶46

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

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7 APPEAL-GROUP-683.91

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the approval of the Executive Engineer. Accused

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No.1 prepared estimates of the work, submitted

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them to Executive Engineer, and after his
approval, alloted works to various Societies in

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March, 1982. In April, 1982, the Anti-

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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

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Prevention of Corruption Act.

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4.In the course of investigation

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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

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works and making payments were seized. On
completion of investigation, sanction to

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8 APPEAL-GROUP-683.91

¶58

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.

¶59

learned Special Judge charged the accused
persons of the offence punishable under
Sections 120B, 409, 467, 468, 471, 477-A r/w

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Section 34 of the Indian Penal Code (for short,

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�IPC�. Accused Nos.1 to 3 were also charged of
the offences punishable under Sections 5(1)(c)

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r/w Section 5(2) and Section 7 of the

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Prevention of Corruption Act, 1988. Since all
the accused pleaded not guilty, they were put

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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

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died during the pendency of the trial and case

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against him abated. The fact that accused Nos.1
to 3 were public servants, and also the fact

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9 APPEAL-GROUP-683.91

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that the Government had sanctioned their

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prosecution was not disputed, though authority
of the Government to accord sanction was
questioned.

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6.After considering the prosecution
evidence in the light of defence of denial of
any misappropriation/defalcation or forgery,

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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

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accused No.5 under rate list 626 i.e.Tirhe-

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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

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10 APPEAL-GROUP-683.91

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was held guilty for not completing the work of
Hiraj-Pakni road. About Tirhe-Shivani Road

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the learned Judge held that it cannot be said

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that false record was prepared or any offence
was committed. He held accused No.6

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responsible for not completing the work of
Kondi-Gulvanchi road. Accused No.10 was not

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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

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APPEAL-GROUP-683.91

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¶82

Health Centre, Mohol.

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7.The learned Judge had observed in para
51 of the impugned Judgment that out of 11
Societies represented by 11 Chairmen, accused

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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

¶85

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

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were under the control of the Executive

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Engineer, who had the authority to pass the
bills. The learned Judge held the Engineers not

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guilty of the offence punishable under Section

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5(1)(c) r/w Section 5(2) of the Prevention of

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Corruption Act, as fraudulent misappropriation
was not proved. But he held accused No.1

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12 APPEAL-GROUP-683.91

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guilty of the offence punishable under Section

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5(1)(d) r/w Section 5(2) of the Prevention of

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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.

¶95

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

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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

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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

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13 APPEAL-GROUP-683.91

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Sections 420 and 477-A read with Section 34 of

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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

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acquitted rest of the accused of all the

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offences. Aggrieved thereby, the convicts and
the State have preferred these Appeals.

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8.During the pendency of the appeals,

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accused Nos.4 and 6 were reported to have died.
Their Appeals, therefore, abated.

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9.I have heard the learned Counsel for

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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

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14 APPEAL-GROUP-683.91

¶108

fact executed. There was no evidence to show

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that works were not executed. In any case,
there was no lapse on the part of accused No.1

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� 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

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life and if the soil spread for repairing roads

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was washed off between execution of work and
inspection, it could not be said that work was
not executed. On behalf of Chairmen of

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Societies, it was submitted that works had been

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executed and the amounts which had been

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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

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were paid or any amounts were misappropriated

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15 APPEAL-GROUP-683.91

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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.

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10.On behalf of Engineer convicts,

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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.

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11.The learned APP submitted that there

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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,

¶123

submitted that conviction of the appellants was
proper and that the convicts should also have

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16 APPEAL-GROUP-683.91

¶125

been held guilty of misappropriation and
forgery.

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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

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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

¶128

Deputy Engineer checks 10% of the item of each
work before recommending payment by Divisional

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17 APPEAL-GROUP-683.91

¶130

office (i.e., Executive Engineer). PW-3 Dhange
was an officer working in District Central Co-

¶131

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.

¶132

13.PWs-4 to 6 state that they wrote

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accounts of several Societies of which accused

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persons were Chairmen. PWs-90 to 92 are

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auditors of the Societies, who found nothing
amiss in the accounts of the Societies.

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14.PW-11 Prabhakar Kulkarni was the
Senior Clerk, who processed the bills for
payment at the Divisional Head Quarter. He

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stated that all these bills were passed by
Executive Engineer Shri Lokure, who was neither

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18 APPEAL-GROUP-683.91

¶139

made an accused, nor was examined as witness at
trial.

¶140

15.PWs-74 and 75 are hostile panch

¶141

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

¶142

that some works were carried out and some were

¶143

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.

¶144

19 APPEAL-GROUP-683.91

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16.PW-84 Bhagwan Bagde is panch at

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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.

¶147

17.PW-79 retired Executive Engineer Shri
Chitnis had accompanied Anti-corruption Bureau

¶148

20 APPEAL-GROUP-683.91

¶149

officer to inspect certain roads on 28th and
29th April, 1982. PW-87 Manohar Dhage is panch

¶150

at panchanamas drawn up vide Exhibit-312/313 by

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PW-83 police inspector Jadhav during the
inspection by Shri Chitnis.

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sanction accorded by the State Government for

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prosecution of public servants-accused and

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PW-86 police inspector Vidyadhar Wadekar states
about filing of charge sheet.

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adjoining land owners, sarpanchas/police
patils, villagers or probable users of

¶156

roads/facilities concerned, on repairs whereof

¶157

money was admittedly spent. Of them PWs-13 to
16, 19, 22 to 24, 27, 30, 33 to 44, 48 to 55,

¶158

prosecution case of works not having been
executed. Out of this group of witnesses, the

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21 APPEAL-GROUP-683.91

¶160

learned Judge has relied on evidence of some
who stated that works concerned were not

¶161

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.

¶162

20.Apart from these witnesses, the

¶163

learned Judge has relied on panchanamas drawn
up on 28-4-1982 and 29-4-1982, as also a report

¶164

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.

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APPEAL-GROUP-683.91

¶166

¶167

21.In the documentary evidence collected

¶168

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:

¶169

�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.

¶170

The Draft Tender papers for
these works should be submitted for
fixing the agency at Divisional
office level.�

¶171

23 APPEAL-GROUP-683.91

¶172

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.

¶173

22.Exhibit-188 is rate list for repairs

¶174

to Belati Dongaon road alloted to Utakarsha
Society of which accused No.4 was Chairman.
This document shows that Executive Engineer had

¶175

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

¶176

24 APPEAL-GROUP-683.91

¶177

Chairman, was sanctioned by the Executive
Engineer on 19-3-1982. Exhibit-191 is the Rate

¶178

List for eight roads worth Rs.4,728/- alloted
to Prasan Society of which accused No.10 is

¶179

Chairman. This work seems to have been
sanctionedon24thFebruary,1982.

¶180

Exhibits-192 and 193 are the Rate Lists of work

¶181

of 4 roads worth Rs.2,940/- and one road worth

¶182

Rs.3,006/-, alloted to Shivshankar Society of

¶183

which accused No.6 is Chairman. The roads were
sanctionedon1-3-1982and24-2-1982

¶184

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.

¶185

25 APPEAL-GROUP-683.91

¶186

23.It is clear from these documents that

¶187

the works themselves were sanctioned in the

¶188

second half of March, 1982 and were to be
completed and expenditure incurred by
31-3-1982. The documents do not show the length

¶189

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.

¶190

24.Final bills and bonds executed by

¶191

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

¶192

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

¶193

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.

¶194

26 APPEAL-GROUP-683.91

¶195

25.The question is whether on the basis

¶196

of this evidence the learned Trial Judge could

¶197

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

¶198

27 APPEAL-GROUP-683.91

¶199

repairs were not carried out was improper. They

¶200

may not have noticed the places where roads
concerned were patched up. This is particularly

¶201

so since there are other lay witnesses who
claimed that some of the roads had actually
been repaired.

¶202

26.In respect of Belati Dongaon road, in

¶203

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.

¶204

Executive Engineer Shri Chitnis, who had
inspected some of the roads, stated in cross-

¶205

examination that it was difficult for him to
locate the alignment and report whether Masle
Choudhary-Morwanchi-Khuneshwarroadwas

¶206

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

¶207

28 APPEAL-GROUP-683.91

¶208

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.

¶209

28.PW-85 Shri Pundlik Bagade was an

¶210

engineer serving as Deputy Director with the
Anti-Corruption Bureau. He carried out

¶211

inspection on 28-7-1982 after rains had set in.

¶212

He had admitted in his cross that �current
repairs� will disappear on account of heavy

¶213

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

¶214

learned trial Judge too does not seem to have
based his conclusions on evidence of these two

¶215

29 APPEAL-GROUP-683.91

¶216

witnesses - PWs-79 and 85. He has mainly relied
on the evidence of lay persons, Investigation

¶217

Officer PW-89 PI Jadhav and report at
Exhibit-325 of Shri Shinde, who is no more.

¶218

29.As already recounted, the learned

¶219

Judge observed that Shri Shinde�s report was
being relied on as report of an expert. The
exact observations of the learned Judge in this

¶220

regard may be usefully reproduced as under:

¶221

�Ex.325 is the report of Expert Shri.
Shinde who is dead. At the beginning
defence objected to exhibit this
document when evidence was recorded
but at the time of arguments, they
have no objection to read this report
as the author of this report is dead.
Mr. Shinde was working as Asstt.
Research Officer (D.E.) of the
District Laboratory Solapur. So, his
status is of an expert.�

¶222

30.Wherever Shri Shinde observed that

¶223

work was not executed, the learned Judge so

¶224

held by using corroborative evidence of lay

¶225

30 APPEAL-GROUP-683.91

¶226

persons, and wherever Shri Shinde observed that
work was done or he could not give any opinion,

¶227

the learned Judge has held the charge as not
proved (e.g. Tirhe-Pathari Road, Tirhe Shivani
Road, etc.). To illustrate, while dealing with
Tirhe-Shivani Road, in para 41 of the judgment
the learned Judge observed that though panch
PW-81 Chougule had said that the road was not

¶228

repaired, since the expert Shri Shinde was
unable to give definite opinion �the evidence
of this panch Chougule, a layman, about non-
execution of the work cannot be relied upon to

¶229

say positively that this repairing work was not

¶230

carried out.�

¶231

31.The learned Judge seems to have been
impressed by the fact that Shri Shinde was
working as an Assistant Research Officer at
District Laboratory, Solapur and therefore

¶232

treated him as an expert. Para Nos.6, 7 and 8
of the deposition of PW-89 PI Jadhav show that

¶233

31 APPEAL-GROUP-683.91

¶234

roads in question were inspected by him along
with Shinde. Report Exhibit-325 shows that

¶235

various roads in question were inspected by
Shri Shinde along with panchas and the

¶236

Investigation Officer on various dates from

¶237

28-5-1982 to 8-6-1982. Report is based on
observations on spots by naked eye and not
after collecting any samples or analysing them

¶238

in laboratory. In para 8 of deposition PI

¶239

Jadhav states that he sent panchnamas and rate
lists to Shri Shinde on 24-6-1982 and on
28-7-1982 received report of Shri Shinde.

¶240

32.The learned Judge should have seen
that report at Exhibit-325, or observations
therein, which the learned Judge has used
against the convicts, were not admitted by any

¶241

of the convicts in their statements under

¶242

Section 313 of Criminal Procedure Code. The

¶243

document itself was not admitted in evidence by
following procedure prescribed in Section 294

¶244

32 APPEAL-GROUP-683.91

¶245

of Criminal Procedure Code. Shri Shinde was not

¶246

an expert included in the list of experts in

¶247

sub-section (4) of Section 293 of Criminal
Procedure Code. Section 45 of the Evidence Act
deals with expert evidence. It is doubtful if
the work done by Shri Shinde could be said to
be scientific investigation. The report does
not qualify for admission in evidence under any

¶248

of the Clauses of Section 32 of the Evidence
Act. Therefore, this fragile report of a person

¶249

who was himself unavailable for cross-
examination cannot qualify to be gospel of
truth merely because Shri Shinde unfortunately

¶250

expired. The report could at best be treated
as his �opinion� and therefore admissible, but

¶251

would not be conclusive of the matter.
Howsoever strong may be the Judge�s feelings
about defrauding the treasury, they cannot

¶252

cloud his vision as to what can be read and

¶253

what cannot be read. In any case, the report is
based on inspections carried out between

¶254

admissions of PW-79 Chitnis and PW-85 Bagade

¶255

about fragility of the current repairs, the
quantitiesofsoil/murumtobe

¶256

excavated/stacked/spread, the length and area
of surface of roads over which the work was to
be executed and the fact that even according to
Exhibit-325 several works had been seen to have

¶257

been executed, the learned Judge should not
have made the report the foundation of his
conclusions at a criminal trial. It has
therefore to be held that there was

¶258

considerable room for doubt as to whether the
works were actually executed or not by the date
payments were made i.e. 31-03-1982, benefit
whereof ought to have gone to the convicts.

¶259

33.It has also to be borne in mind that

¶260

the charge is based on breaches of contractual
obligations. The Societies were awarded
contracts for execution of certain works for a

¶261

34 APPEAL-GROUP-683.91

¶262

certain sum by a certain date. Breaches by them
by not executing the works by the dates fixed
or in quantities lesser than those billed would
not ipso facto invite criminal liability. As
far as offence of cheating is concerned, it has
been held time and again that a breach of
contract would amount to cheating only if at
the inception there was a dishonest intention.
Here far from there being any evidence of any
such intention, there is actually compliance to
contractual obligation, may be after the due
date. Therefore, the learned Judge was in error

¶263

in holding convicts guilty of offence
punishable under Section 420 r/w Section 34 of
the IPC.

¶264

34.The convict-engineers have been

¶265

convicted of offence punishable under Section
477-A of the IPC. Considering the fact that

¶266

works themselves were sanctioned in the second
half of March, 1982 and were to be completed by

¶267

35 APPEAL-GROUP-683.91

¶268

31-3-1982 and payments were also to be made by

¶269

that date, the possibility of false entries

¶270

being made in measurement books or false
endorsements being made on final bills did
exist. However, the question would be whether
this was shown to have been done �wilfully and
with the intent to defraud�, which is the basic
ingredient of Section 477-A of the IPC. Mere
making of a false document or a false account
would not amount to an offence under Section
477-A unless it is shown that such
falsification was with the intent to defraud.

¶271

There is no presumption of existence of such
intention on proof of a false entry. As the
foregoing discussion would show several of the
works included in the charge were actually
already executed, and evidence about non-
execution of works for which convicts were
convicted was inadequate and dis-satisfactory,
ruling out any intention to defraud. The
falsification, if any, may be due to

¶272

36 APPEAL-GROUP-683.91

¶273

overzealous compliance to the obligation to
utilise the grant within the financial year.
The convict-appellants must in retrospect be
feeling, that they could have better faced
departmental action for disobedience or

¶274

incompetence for failure to get works executed
within a fortnight, than face this ordeal. Even
now engineer-convicts could be departmentally
dealt with for making anticipatory entries in

¶275

measurement books. Their convictions for
offence punishable under Section 477-A of the
IPC, therefore, cannot be upheld.

¶276

35.The learned trial Judge has convicted
accused No.1 for offence punishable under

¶277

Section 5(1)(d) r/w Section 5(2) of the

¶278

Prevention of Corruption Act by presuming that
accused No.1 must have obtained pecuniary
advantage by committing offence of cheating.

¶279

This again is too far fetched. A criminal Court
may not ordinarily draw any presumption beyond

¶280

37 APPEAL-GROUP-683.91

¶281

those permitted by Evidence Act. In any case,
since there is a doubt as to whether there was

¶282

any cheating, conviction for this offence too
cannot be upheld.

¶283

36.In view of the foregoing discussion,

¶284

it cannot be said that the learned trial Judge
erred in acquitting the convicts of offence
punishable under Section 5(1)(c) r/w Section
5(2) of the Prevention of Corruption Act or
Section 468 r/w Section 34 or Section 120B of
the IPC. A Division Bench of this Court by
judgment dated 22-9-2009 has recorded that it
was satisfied that the reasoning set out in
acquittal order under Sections 409 and 467 r/w
Section 34 of the IPC did not call for any
reconsideration. The appeal by the State, being
Criminal Appeal No.229 of 1992, is, therefore,
dismissed.

¶285

Nos.683/1991,

¶286

37.CriminalAppeal

¶287

38 APPEAL-GROUP-683.91

¶288

684/1991, 695/1991 and 70/92 are allowed. The
conviction of the appellants in Criminal Appeal
Nos.683/1991, 684/1991, 695/1991 and 70/92 are
set aside. They are acquitted of the offences
with which they were charged. Their bail bonds
stand cancelled.

¶289

 (R.C.CHAVAN, J.)

Jayant Purushottam Dhaigude and 4 Ors. v. the State of Maharashtra

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Jayant Purushottam Dhaigude and 4 Ors. v. the State of Maharashtra

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What the court decided

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