# S. K. KALE v. STATE OF MAHARASHTRA December 17, 197 6

- **Citation:** [1977] 2 S.C.R. 533
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Criminal Appeal No. 1405 of 1969
- **Bench:** P. N. Bhagwati, S. MURTAZA FAzAL ALI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-k-kale-v-state-of-maharashtra-december-17-197-6-7067
- **Pages:** 11

## Headnote

Prevention of Corruption Act, 1947, s. 5(1)(d), onus probandi, whether
to be discharged by the Qf:cused.
Constitution of India, Article 136, Re-appraisal of evidence under, when
called for.
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 pecuniary 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 Constitution, 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 appellant
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 concurrent juagment 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 J)resuming that the accused had a dishonest intention.
[536 B-C, HJ
Narayanan Nambiar v. State of Kera/a [1963] Supp. 2 SCR 724; 73lJ-731~
referred to.
·

## Text

533
S. K. KALE
v.
STATE OF MAHARASHTRA
December 17, 197 6
[P. N. BHAGWATI AND S. MURTAZA FAzAL ALI, JJ.]
Prevention of Corruption Act, 1947, s. 5(1)(d), onus probandi, whether
to be discharged by the Qf:cused.
Constitution of India, Article 136, Re-appraisal of evidence under, when
called for.
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 pecuniary 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 Constitution, 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 appellant
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 concurrent juagment 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 J)resuming that the accused had a dishonest intention.
[536 B-C, HJ
Narayanan Nambiar v. State of Kera/a [1963] Supp. 2 SCR 724; 73lJ-731~
referred to.
·
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 301 of
,.(.,
·' 197 l.
l..y
(Appeal by Special Leave from the Judgment and Order dated the
15th/16th June 1971 M 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
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F AzAL 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 considerd sufficient to meet this menace, and the
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Prevention of Corruption Act, 1947 (Act II of 1947)-hercinafter
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
SUPREME COURT REPORTS
(1977] 2 S.C.R.
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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.
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The facts of the present case are more or less undisputeJ 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 arc 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 Anny, holding the rank of a Major, and was at the material time
the local Purchase Officer, hereinafter to be rderrcd to as LPO, at
Ordnance Depot at Talegaon Dabhade,
District Poona. Following
the Chinese attack in 1962 an Emergency was declared and the Army
required certain engineering tools to be supplied 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 appellant 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, which 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 ·Jraw
_.,,.-
cash and then go to the market and purchase the goods against cash~ -
But in view' of the Emergency and the immediate necessity of the ·
tools this procedure was waived and the appellant was permitted to
'to
buy the .tools on covering purchase order basis; in other words, the
appellant could himself purchase the tools without obt'.J.ining 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 paymeat to the supplier.
According to the prosecution the appellant, a day utter 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 Department. and still continues to
be so. P.W. 2 further assured the appellant that he would make the
suoply as earlv as possible, and that he would clo so at moderate rates.
P.W. 2 accordin!!:ly procured the articles from Bombay and delivered
the same in the Depot by April 6, 1963 along with his bills after which
s. K. KALE v. MAHARASHTRA (Fazal Ali, J.)
535
the bills were placed before the Chief Ordnance Officer and
aft~r
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 Mis Devichand Lalchand Gandhi, P.W. 11,
and received 900 dessert spoons of stainless 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 pumshable 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 Judicial 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 conviction and sentence before the High Court faikd.
.
.
The gravamen of the allegation against the appellant is that although
· tl1e 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 iliat he followed the procedure of covering purchase
order basis and placed orders with P.W. 2 alone 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 ilie 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 appe11ant 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 conviction of the appellapt.
The appellant
pleaded innocence and denied that he had any intention to cause pecuniary benefit to P.W. 2. The appellant submitted that the articles were
IL
very urgently required and as no time was left he had to act quicklv
' l___,/and take immediate decisions. It was for this puroose that the normaJ
· 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 suoplied
at moderate rates. The appellant seemed to suirirest 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
suooly all the tools reauired at one stretch instead of runninir from one
dealer to another for ourchasing goods oiecemeal, and as P.W. 2 was
prepare<l tr. ~nuply all the goods himself and he was also on the
18-1546 SCI./76
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536
SUPREME COURT REPORTS
[1977] 2.S.C.R.
approved list of dealers the appellant decided to place orders with him.
He made no secret of the fact because aH the higher officers, including ·
!he 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
oi 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 whofo 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 misconduct
(a) ...•
(b) .. ..
(c) .. ..
( d) if he, 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 advantage .... "
In other words it was for the prosecution to prove affirmatively 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 l 0-15 % . 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 prosecut:on case but it was for the prosecution to disorove 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 accused in fact made no such enou;ries and he knew
about the margin of profit which other dealers would have marle. We
sha.Jl immediately show that there is no legal evidence to prove this fact.
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What the courts below have done is to disbelieve the case of the apoellant 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.
s. K. KALE v. MAHARASHTRA (Fazal Ali, J.)
537
Tu the case of Narayanan Nambiar v. State of Kerala(') 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) . This 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 comprehensive. 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 occrupt 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 h;s 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 prnve this fact.
To be~n with, the first circumstance relied upon by the High Court is
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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
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then he should have gone to the market and purchased the articles and
0))1963] Supp. 2 S.C.R. 724, 730-731.
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538
SUPREME COURT REPORTS
[1977] 2.s.c.R.
.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 thi.'.t
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 0£ cash purchase and had himself sanction.cu
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
case the appellant had purchased these articles against cash and later
on obtained the necessary covering purchas~ 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. Puri had passed an order directing the appellant as LPO
to purchase all the articles against cash immediately. In this connection the High Court observed as follows :
·
"Similarly, it is not in dispute that regarding the mode
of purchase, Lt. Col. Puri had already passed an order directing the appellant as Local Purchase Officer to purchase all
the articles against cash immediately."
Even assuming that the appellant purchased the articles against cash
he was doing so in compliance with the orders of the Chief Ordnance
O:I!cer 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 procedure 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.\V.
10) who stated that a covering purchase order is sanctioned only when
the Chief Ordnance Officer is satisfied that there are special circumstances which necessitate the sanction of the purchase order after the
ston:s 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 5ubject 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. Jn
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
Officer 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 clid he ascertain the rates. On this question also the High Court
as well as the Special Judge, have misplaced the onus on the accused'.
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s. K. KALE v. MAHARASHTRA (Fazal Ali, !.)
539
To begin with, the accused has categorically stated. i_n his statement
under s. 342, Cr.P.C., that he had in fact ma~e enqumes and had sen~
the Supply Clerk and one Deshmukh for gettmg. the rates and find ou.
whether the stores were available. The prosecution could. succeed unly
if tile statement of the accused could be falsified and this co,uld on l:,;
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 prosccut10n,
and.
yet none of these persons were examined to falsify the. statc>mcnt of
the accused. The High Court, on the other hand, was 111 error when
it observed that the accused did not produce either the clerk or
De;,hmukh forgetting that it was not for the ·accused but for
the
pro~ecution to prove that what the appell~nt had said
was
ral~e.
Fur~hermore, reliance was placed by the High Court and the ~pel'ial
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 article.> 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
pen.ent wer available with the firm.
In cross-examination,
>vhen
asked about a particular type of engineering tool the witness
was
unable to state for what purpose it was used.
The witness admitted
tlJ<it he did not maintain any stock register at the shop and the foct
that the aricles were available was being deposed by him merdy 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 retailer, therefore there was not necessity to keep a stock register.
The witness has nowhere stated that he was a retailer and not a whole
sal~_r and, therefore, there was absolutely no basis for the High Court
to have conjectured or speculated on this point in order to raise
an ;nference against the appellant. On the other hand, in the absence
of any document, register or inventory to show the nature of oe;ods
the firm of P.W. 14 was dealing in, it is difficult to accept th~ ipsi
dixit of thei witness consisting of his bare statement based on pure
memory that the engineering tools were avaifable six years before the
date he was d_eposing.
Such evidence, in our- opinion, is absc.>lute!y
worlhless.
~n !act ~·W: 18, the lnspe?tor, has deposed that in the
cowse of his mvestigations he had seized the accounts ::md documents o~ the local firms, and yet ~o document was produced by the
pL;s~cution to show that P.W. ~4 m fact had in his possession ct1gineerng goods at the relevant time.
Furthermore, the witness positivd~ states that he never went t~ Talegaon Ordnance Depot
to
e~qurre whether any tools were reqmred.
It was also not put to the
wnnc,ss whether the appellant personally or tlirough one of his em-.
ploy;~es. had approached him regarding t~e supply of the goodo. ln
these circumstances, therefore, how possibly can ·an inference
he
drawn from his evidence that the accused made no enquiries whatsoev~r when. the accused had po~itively stated that he did.
Fiu~11ly,
on me quest10n of rates or margm of profit also, the witness makes
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540
SUPREME COURT REPORTS
[1977) 2 S.C.R.
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OH!y a verbal statement that he would have charged 10-15% wLich
cannot be accepted in the absence of documentary proof of the fact
that the firm had sold these articles during the relvant tim.: 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 written in the account books which were in possessio11 of the
Inspector and yet not produced.
In these circumstances, therefore,
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we ate satisfied that the High Court misread the evidence o,f P.W. 14.
Reliance was then placed o:i the evidence of P.W. 15, Mahendrakumar, 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
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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 engineering 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 appe!laPt
in hi> statement under s. 342, has positively asserted that he
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make enquirie.s 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 convincing explanation because
the prosecution could have asked for adjournment from the court to
enable Ambalal to be examined as a witness for he alone couid have
falsified the statement of the accused whether or not any enqmry was
made from him.
Finally, this witness himself states :
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"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 statement that no orders could
have been placed with this firm because he was only in a position to
suprly files which formed a very small component of the engineering
goods required. In these circumstances, therefore, the evidence 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 remembep 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 (!nquiry, 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
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s. K. KALE v. MAHARASHTRA (Fazal Ali, J.)
541
supplied them by procuring them from somebody else. In these cirA
cum3tances 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 suggested to him
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that enquiries were made from him by the appellant andl 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
possil;ility of the accused having made enquires from him, or at any
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the
m3rgin of profit, that is. also ipsi dixit without any basis and is not
s;ipported by his account books.
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li 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 hav been proved by the
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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 statemeat 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 inferences against
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the -.ppellant have been drawn.
After having gone through
the
evidence we are satisfied that the prosecution has not produced any
relhble 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 appellant had been
F
asked by the Jabalpur Depot to supply these articles
immediately.
The appellant, therefore, had to 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
t.hought 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
rm inference of dishonest intention cannot
be drawn.
Moreover,
G
P.W 10 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 e!(pected 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.
H
A
B
c
D
F
G
H
542
SUPREME COURT REPORTS
[1977] 2 S.C.R.
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 leos 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
benefit to P.W. 2. The appellant had admitted that if he had known
f
lh<Jt P.W. 2 would have charged such a high profit he would have
been more c~rej'ul.
On the other hand, what appears to us to be most surprising is
that although P.W. 2 was the sole beneficiary of the whole transae··
tion and had, according to the prosecution, made profit of 45 % and
wa5, 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 department can only be consistent with the innocence rather than
Lhe. guilt of the accused. If the prosecution allegation was true that
P.W. 2 through his business influence obtaineq the order in
his
favour, then before the prosecution was started against the appellant,
P.W. 2 should have been blacklisted.
But this was not done.
The
Hi.:;h 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
. ·~
::is he used to visit the office in connection with the supplies off and
on.
In these circumstances, therefore, if P.W. 2 was not smpected
by the prosecution for having received huge pecuniary benefit: much
less could the blame lie on the appellant.
fa 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 produent person and tried to
get the supplies as quickly as possible with the result that all
the
gods required by Jabalpur Depot were suppli~d within two weeks.
A careful analysis of the evidence and the circumstances would,
therefore, show that the approach of the High Court was clearly
s. K. KALE v. MAHARASHTRA (Fazal Ali, !.)
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 explained 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.
A
B